Effectiveness of a Lawsuit against Infringement of IP in Vietnam

How to handle effectively with infringement is a big concern of Intellectual Property (IP) holders. Should the IP holder file a lawsuit at Court? Is this way effective in Vietnam?  This article will give you general information about handling of intellectual property disputes through legal action at court in Vietnam.

Unlike many countries in the world, in case of infringement, most IP holders proceed with lawsuits in the courts (judicial authorities), while other administrative agencies only perform measures to ensure enforcement of judgments of the court.

Protection of IP rights through the litigation has many advantages over administrative measures because it guarantees the enforcement and compensation from infringers. However, in our opinions, the practice of resolving IP rights disputes in courts is not as effective as administrative measures in Vietnam.

Vietnamese laws have not given separate regulations on procedures for settling IP disputes. Therefore, the procedures for settling disputes shall be governed by the Law on Civil procedure. According to Clause 2 of Article 30 and Clause 1 of Article 34 of this law, disputes over intellectual property rights and technology transfer between individuals and organizations and all purposes of profit are commercial disputes to be trialed at the courts of the province.

According to Article 202 of the IP Law, the court could decide the following civil measures to the infringers upon IP right:

-Compelling termination of the infringement of intellectual property rights;

-Compelling public rectification and apology;

-Compelling the performance of civil obligations;

-Compelling compensation for damages;

-Compelling destruction, or distribution/ use for non-commercial purpose.

In addition, when initiating a lawsuit or during dispute at court, the IP holders may request the court to apply provisional emergency measures in order to prevent damages.

In practice, the IP holder does not proactively protect IP rights by civil measures to file a lawsuit at court. The number of cases resolved by courts is much lower than the number of cases handled by administrative measures. Specifically, the number of cases resolved by court are 177 cases from 2012 to 2015, of which 91 cases were canceled. The number of cases resolved by administrative measure is of 22,914 cases (excluding cases handled by Vietnam Customs Authority)

The reason for the above survey is that, the IP holder is less likely to resolve disputes through courts because time for dispute resolution is lengthy, the process is cumbersome and complicated, but not as effective as administrative measures. Therefore, dealing with disputes in the specialized administrations will give faster effects to the IP holders in Vietnam.

Tuan Nguyen and Thao Hoang @ ANT Lawyers

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PM: Vietnam is a reliable business partner

HCMC - Vietnam is working hard to improve itself in order to become a reliable business partner, Prime Minister Nguyen Xuan Phuc said at the Vietnam Business Summit (VBS) 2017 in Danang City on November 7.

He told VBS, which was part of the APEC Economic Leaders’ Week in Danang, that an AmCham Singapore survey conducted in September 2017 showed 56% of respondents said Vietnam is their best trade partner.

Economic reforms have made Vietnam one of the fastest growing economies in the world, with average gross domestic product (GDP) growth of 7% a year. The country’s income per capita in 2017 has edged up to US$2,300, or US$6,800 based on the Purchasing Power Parity.

The Vietnamese middle class has grown rapidly, fueling domestic consumption and opening up business opportunities for investors.

PM Phuc said Vietnam ranked 55th out of 137 countries in the World Economic Forum’s Global Competitiveness Report for the 2017-2018 period, and 68th out of 190 countries in the World Bank’s Doing Business Report released on October 31, 2017.

In the 2007-2016 period, household expenditures grew 16% a year and accounted for 67.3% of the country’s GDP, making domestic consumption a driving force for economic growth.

By 2020, he added, Vietnam will be among the countries having the largest numbers of

mobile users in the region, presenting a new opportunity for investors to come to the country for business and investment.

The Vietnamese Government has a strong determination to improve itself so that it can help individuals and organizations to grow businesses, he said. Particularly, the Government will try to further improve the legal framework, promote private business, ensure sustainable development, narrow the income gap between rich and poor, develop healthcare and education, improve social security, and protect vulnerable groups in the economic development process.

The country will also foster innovation and entrepreneurship by propping up startups. “We are calling for investors’ stronger engagement and investment funds’ early-stage financing for startups,” Phuc said.

In addition, Vietnam will reform its tax system to improve the competitiveness of the economy, and this system will meet the requirements of transparency, equality and efficiency set by the Organization for Economic Co-operation and Development, he said. Corporate income tax will be cut from 20% to 15-17% to help businesses grow.

Source: The Saigon Times

According to the Government news website, VBS 2017 themed “Vietnam: We Mean Business” was held at the Ariyana Convention Centre, with more than 2,000 domestic and foreign businesses attending.

World Bank Vice President for the East Asia and Pacific Region Victoria Kwakwa, Philipp Rösler, managing director of the World Economic Forum, and Vu Tien Loc, president of the Vietnam Chamber of Commerce and Industry were also present at the summit.

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What Goods Allowed to Be Imported into Vietnam?

Foreign owned companies in Vietnam wishing to import and distribute physical goods into Vietnam must comply with many regulations. It is imperative that the right to conduct import business of foreign investors and FDI companies differ from the right of Vietnamese traders having no foreign direct investment capital because trading activities are considered conditional investment area.

1. General Principles of Imported Goods

In principle, as other countries, the importers have to follow the general rules when importing and distributing physical goods into Vietnam:

• Not to import goods specified under the list of goods banned from import or suspended from import provided, published by Vietnam government;

• Follow the guideline or import regulations and conditions required by ministries and ministerial-level agencies. There are specific conditions for importing certain goods which the importers have to follow i.e. certain medical equipment have to be approved by the Ministry of Health; Food, cosmetics products need to be testedReceiving and transmitting telecom equipment must be inspected by Ministry of Information and Communication; Books, CDs will be checked and scanned for contents to be approved by Ministry of Cultures, Sport and Tourism; Equipment must satisfy energy, environmental regulations to be inspected and labeled by Ministry of Science and Technology…

• Implement other relevant laws, commitments of the Socialist Republic of Vietnam in treaties which it has signed or acceded to, and the roadmap announced by the Ministry of Industry and Trade.

2. Goods Prohibited to Be Imported into Vietnam

• For the goods being banned to be imported and distributed in Vietnam, the importers have to follow strictly to avoid penalties:
• Weapons, ammunitions, explosives (excluding industrial explosives), military technical equipment.
• Assorted fireworks, sky lanterns, assorted devices causing interference to vehicle speedometers.
• Used consumer goods: Textiles and garments, footwear, clothes; Electronic appliances; Refrigerating appliances; Home electric appliances; Medical equipment; Interior decoration goods;
• Assorted publications banned from dissemination and circulation in Vietnam
• Assorted cultural publications banned from dissemination and circulation or decided to be suspended from dissemination and circulation in Vietnam.
• Right-hand drive means of transport; assorted automobiles and their spare parts which have their frame or engine numbers erased, modified or tampered with; Assorted motorcycles, special-use motorbikes and motorbikes which have their frame or engine numbers erased, modified or tampered with
• Used supplies and vehicles
• Chemicals in Annex III of the Rotterdam Convention.
• Pesticides banned from use in Vietnam.
• Wastes and scraps, refrigerating equipment using C.F.C.
• Products and materials containing asbestos of the amphibole group
• Schedule-I toxic chemicals; Chemicals on the list of banned chemicals

It is important for foreign trader wishing to establish a trading company in Vietnam to not only study the market demand in Vietnam but also the country’s law on import, export, customs law to ensure their compliance during the operation.  If doubted, the Client is suggested to reach out for help and advisory of law firm in Vietnam by qualified lawyers in the area of import, export and customs.

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Draft cyber security law mismatches WTO rules

HANOI - The Vietnam Chamber of Commerce and Industry (VCCI) has pointed out discrepancies between some provisions of the draft Law on Cyber Security and the nation’s commitments to the World Trade Organization (WTO) and the Vietnam-EU Free Trade Agreement (EVFTA).

VCCI has written to the National Assembly Security and Defense Committee detailing the incompatibility between the draft law and Vietnam’s commitments to WTO and EVFTA. The draft law, crafted by the Ministry of Public Security, is now on the table of the National Assembly (NA) for discussion.

VCCI said Article 34 of the draft law specifies: “Foreign firms providing telecommunication and Internet services in Vietnam shall comply with Vietnamese regulations, respect national sovereignty, interests and security, user interests, obtain licenses, locate their representative offices and servers in Vietnam, and secure user data and accounts...”

However, according to Vietnam’s WTO and EVFTA commitments, foreign telecommunication and Internet service providers are not required to locate their representative offices in Vietnam.

Besides, Article 14.13 of the Trans-Pacific Partnership (TPP) agreement which Vietnam signed in February 2016 says: “The Parties agreed not to require the use of computing facilities within their territories as a condition for doing business.”

Although the NA has not approved the TPP, Vietnam and 10 other Pacific Rim countries are still conducting negotiations to finalize a deal without the United States. Therefore, VCCI said the draft law should run counter to the TPP.

VCCI said the country’s Cyber Information Security Law crafted by the Ministry of Information and Communications came into effect on July 1, 2016, so there is no need to issue a law on cyber security.

Article 11 of the draft law states the Ministry of Public Security is responsible assessing providers of cyber information security services. However, Article 44 of the Cyber Information Security Law regulates the Ministry of Information and Communications is in charge of coordinating with relevant ministries and agencies to issue licenses for those entities providing cyber information security products and services.

This is a clear indication that the Draft Law on Cyber Security and the Cyber Information Security Law overlap to some extent.

VCCI noted some requirements in the Ministry of Public Security’s draft law would make life difficult for businesses and push up the cost of doing business in the cyber security domain.

VCCI suggested the Ministry of Public Security eliminate Article 49 of the draft law that requires enterprises to ask the ministry for permission before finalizing their contracts because the draft law does not provide the procedures for doing so.

Source: The Saigon Times

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