How to Manage Your IP in Vietnam
By John Choppin
Jun. 16 – Vietnam has a comparatively strong IP legal framework. Several agreements have been signed, noticeably the Bern Convention on Copyright (2004) and other bilateral trade agreements.
In this domain, the benchmark is truly the TRIPS (trade-related aspects of intellectual property right) providing international standards for IP in Vietnam. The TRIPS requirements were passed as the IP Law (Nov 2005) and enforced in July 2006 to facilitate Vietnam’s accession to the World Trade Organization. Later, it was improved with a few amendments (Jan 2010). Vietnam is also member of the WIPO (World IP Organization) and has a body of law comparable to industrialized countries.
In the Vietnamese mind-set and behavior, IP is not a strong notion (except for food and medicine), therefore it is common to find counterfeiting activities of all sorts. Therefore individuals must protect themselves and try to enforce the law when possible.
The UK trade and investment agency gives its partners good advices such as; getting help with professional agencies, doing risk assessments, checking IP rights registrations, and performing due diligence checks.
To build a strong defense it is advisable to register a copyright as soon as possible to the National Copyright Office. Patents are registered with the NOIP (National Office of IP) and include inventions and utility solutions while trademarks must be registered in Vietnam or using one of the Community Trademark registration systems (e.g. WIPO). IP ‘prior rights’ are applicable when previously registered elsewhere.
When your IPR is infringed upon, making use of the law is another story and brand owners or licensees have to find the best jurisdiction. There is no such thing as an IP court in Vietnam, but all civil courts have jurisdiction to hear all IP matters, including unfair competition cases.
Other specialized local authorities might be helpful, such as the Ministry of Science for patents, the Ministry of Culture and Information for copyrights, and the Market Management Bureau. To initiate a trial, a Registration Certificate is sufficient and enforcement of court decision is carried out by the Economic Police or the IP inspection.
The five main weapons:
- Urgent cases can call for a court preliminary injunction which may be granted before the beginning of civil proceedings and in cases of irreparable damages or risk of the destruction of evidence. The preliminary injunction purpose is twofold; establish a record and prevent larger damages.
- Civil procedures can lead to apply measures such as; termination of infringement, public rectification and apology, compensation for damages or destruction of objects.
- Administrative measures involves stricter conditions and can be obtained if the infringement can harm public/consumer interests or in cases of repeated infringement. It offers low-cost and quick results, but with a low level of compensation (license suspension, destruction of the goods, fines from one to five times the value of the good).
- Criminal cases involving counterfeiting of fertilizers, veterinary medicines, plant preservatives and such are exposed to one to five years imprisonment and counterfeiters or counterfeit traders of food and medicines for humans face two to seven years.
- IPR holders can mandate customs to monitor or suspend customs clearance of specific imported or exported goods punctually and if well motivated.
Dezan Shira & Associates is boutique professional services firm providing foreign direct investment business advisory, tax, accounting, payroll and due diligence services for multinational clients in Vietnam. To contact the firm, please email email@example.com, visit www.dezshira.com, or download the firm’s brochure here.
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