Taking steps to protect your IPR is an important aspect of preserving the rights and value of that IP. However, without vigilant enforcement when there are breaches of the rights by a third party, the effort of protecting the IPR becomes less useful. Auramark offers enforcement services in both four-wall and digital counterfeiting sectors to its international and local clients.
The enforcement system of IP rights in Vietnam offers three different avenues, namely civil, administrative and criminal actions.
I/ Administrative Procedures
Administrative procedure is regarded as the most effective way to deal with IPR infringement in Vietnam perhaps because the Vietnamese are culturally familiar with the administrative ways of settling disputes. Practice showns that administrative action, rather than judicial, carries the possibility of a more prompte and effective result. However, there is no award of damages for infringement under administrative procedures.
II/ Civil Procedures
IPR holders can initiate civil proceedings against infringement of his rights at the court and seek the following:
The court of jurisdiction over IPR infringement or disputes shall be the People’s Court of the city or province where the defendant is located. Where one of the parties is foreigner, the case must bring to the People’s Court in Hanoi or Ho Chi Minh City.
The plaintiff must bear the burden of proving the infringement claimed. The complaint must be accompanied by documentary evidence of the concerned IPR and proof of the infringement. Before the Court decides to bring the case to a hearing, a conciliation process between the parties must be arranged. If the agreement is reached between the parties during the conciliation process, the Court will recognize the agreement and the case is thus finalized.
At any time during the process of the case, the Court itself or, as requested by the parties or the People’s Prosecutor, may apply preliminary injunction measures as mentioned above. These measures may, however, be protested by the defendant or suspended by the People’s Prosecutor. The Court will make a decision to bring the case to a hearing at the first instance within 4 months or 6 months from the date the court receives the complaint. The hearing will then be opened within 1 month or 2 months (in complicated cases) from the date of issuance of the said decision. After 15 days from the date on which the court of first instance makes judgment or decision, the parties may appeal to the Supreme People’s Court in Hanoi, whose ruling is final.
III/ Criminal Procedures
IPR infringements may be subjected to criminal liability in some serious cases. The authority to bring a criminal action lies with the police and the public prosecutors. Due to lack of resources, it can be difficult to persuade the police or prosecutor to act. The IPRs holder does not have any effective control over the progress of a criminal action.
Under Article 126, those who infringe upon copyrights or patent rights of other persons shall be subjected to a warning, monetary fine of up to 5,000,000 VND or imprisonment of from three months to one year.
Under Article 167 regarding offences of production and trade in counterfeit goods, the penalty ranges from one to seven years of imprisonment. In serious cases where counterfeit goods are goods, pharmaceuticals, or the volume of counterfeit goods are substantial, then the offender shall be subject to 20 years of imprisonment or even life imprisonment or death penalty.