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Legal service for Handling Trademark Infringement in Vietnam

By
sblaw
-

This process of handling trademark infringement in Vietnam includes the following steps:

1. Establishing the representative qualification and preparing all necessary documents

In order to establishing the representative qualification of S&B Law, the required document is Power of Attorney (POA) appointing S&B Law is a IP representative and the scope of POA must include “the right of enforcement and protect all IP rights in Vietnam”

The required documents for settling the infringement of trademark in Vietnam are:

– Notarized copies of Certificate of Trademark Registration (CTR) (03 sets); or

– Certified copies of NOIP of CTR (03 sets); or

– Notarized copies of License Agreement which has been registered at NOIP (if any);

– Three (03) samples of infringed products and three samples of alleged products if these products are not poison, inflammable, explosive; or

– Images or pictures of infringed products and alleged products (03 sets);

– Information of infringer (such as name, address…)

Trademark Attorney of S&B Law
Trademark Attorney of S&B Law

2. Examination


Examination is not compulsory, but the conclusion of the examination is one of the most important documents for settling the infringement and it is an evidence resource that authority office shall base on for settling the case.

Therefore, examination should be taken before officially settling the case.

The required documents for this work include:

–  Application;

– Notarized copy of POA;

– The documents proving the right of the applicant (certified or notarized copies of CTR);

– The documents proving the infringement action of infringer (samples or pictures/images of samples)

Time for examination is about from 7 to 11 working days.

3. Settling the infringement action

Based on the conclusion of examination, officials could choose the following options

Option 1: Sending a cease and desist letter (C&D Letter).

Accordingly, SBLaw will send a C&D letter to the infringer and request them to take the following actions:

– Immediately ceasing the act of manufacturing, circulating goods/services bearing the infringing element; and

-Taking back all goods/services bearing the infringing elements that have been already circulated on market within a period prescribed by SBLaw or customer’s instruction;

– Signing an undertaking commits that will not infringe against IP rights of the customer in future;

– Apologizing Letter (If any);

-Other documents (if any);

If the infringer does not comply with the above mentioned request, the customer could apply the Option 2 as below.

Note: This option is not compulsory. 

Option 2: Filing a petition requesting authority state bodies to settle the infringement action (administrative measure)

Accordingly, SBLaw will prepare all necessary documents and request authority office to punish the infringement action of infringer.

Depending on the location, complication of the case, the authority office should be chosen in accordance with the regulation of Decree No. 99/2013/ND-CP.

Necessary documents:

– A notarized copy of POA;

-Petition;

– The documents proving the right of the applicant (certified or notarized copies of CTR);

– The documents proving the infringement action of infringer (samples of alleged products or picture/images of alleged products/services);

– Conclusion of examination of VIPRI;

– Other documents;

Within ten working days counted from the date of receiving the petition, the authority office must check the legitimate of the petition and attached documents. When documents or evidence supplied by the requester are insufficient, the violation-handling agency shall request the requester to supplement documents and evidence or give explanations within 30 days after being requested.

Within 30 days after receiving the complete dossier which satisfies the requirements, the competent person shall notify the requester of the time of handling, procedures and measures and request cooperation and support of the industrial property rights holder in the inspection, examination, verification and handling of the violation.

Patent Protection Service of SBLAW

By
sblaw
-

SBLaw Firm provides clients with legal services relating registration patent service in Vietnam as follows

– To research and assess ability of protection in Vietnam and other countries such as Asean’s nations, Europe United, The US, Japan, Korea, Hong Kong, China, Russia;

– To consult procedure and represent in submitting an application asking agencies to issue the patent of invention in Vietnam and in foreign countries;

– To maintain and extend the validity of patents in Vietnam and in foreign countries;

– To assess breach capability and co-ordinate with authorized bodies in protecting rights over patents being protected in Vietnam as well as in other countries;

– To assess and evaluate the validity of patent of inventions issued in Vietnam and in foreign countries;

– To designate lawyers joining in negotiating, drafting, assessing and registering contracts which relate to transferred and used rights or owned rights of technological inventions protected in Vietnam and foreign countries.

Industrial Designs Protection Service of SBLAW

By
sblaw
-

SBLaw Firm provides clients with legal services relating registration Industrial design service as follows:

-To research and assess ability of protection in Vietnam and other countries like Asean’s nations, Europe Union, The US, Japan, Korea, Hong Kong, China, Russia;

-To consult procedure and represent in submitting an application asking agencies to issue certificate of industrial designs in Vietnam and in foreign countries;

-To maintain and extend the validity of industrial design in Vietnam and in foreign countries;

-To assess infringed capability and co-ordinate with authorized bodies in protecting rights over industrial designs being protected in Vietnam as well as in other countries;

-To assess the capability industrial designs of certificate issued in Vietnam and in foreign countries;

-To designate lawyers joining in negotiating, drafting, assessing and registering contracts which relate to transferred and used rights or owned rights of industrial designs protected in Vietnam and foreign countries.

Copyright and Related Rights Protection Service of SBLAW

By
sblaw
-

SBLaw Firm provides clients with legal services relating registration copyright and related rights service in Vietnam as follows:

– To consult determine author, owner of copyright and related rights;

– To consult bases wherein copyright and related rights originated and established in Vietnam and international intellectual property agencies;

– To consult the range wherein the copyright protected;

– To represent clients to conduct to establish subject of matters relating copyright such as works of applied art, the copyright over literary works, cinematographic works, performance, computer of software;

– To represent clients conduct to establish related subject of matters such as rights over performer, rights over video and phonogram recordings;

– To represent phonogram, video producers, broadcasting organizations and singers in order to join in negotiating exchanging and exporting, importing copyrights and related rights.

Trademark Registration Service of SBLAW

By
sblaw
-

SBLaw Firm provides clients with legal services relating registration trademarks and filling service in Vietnam as follows:

–  To research, assess the capability of registration in Vietnam and other countries such as nations of Asean, Europe United, The United states, Japan, Hong Kong, Korea, China, Russia;

– To consult procedure and represent clients in submitting an application of registration trademarks in Vietnam and in foreign countries;

–  To consult in choosing and using the trademarks and names of trade;

– To submit and conduct procedure to register the trademarks

–  To maintain and extend the validity of trademarks in Vietnam and in foreign countries;

– To assess the infringed capability and co-ordinate with agencies in protecting rights over the trademarks;

– To assess the validity of  the certificate of registration trademarks issued in Vietnam and foreign countries

– To designate lawyers taking part in negotiating, drafting, assessing and registering the contracts which relate to used rights, owned rights and commercial franchising marks protected in Vietnam and in foreign countries;

–  To design, value the marks and consult in creating identification of marks for the internal as well as external enterprises.

Industrial design registration applications

By
sblaw
-

1. Documents identifying an industrial design registered for protection in an industrial design registration application include a description and a set of photos or drawings of such industrial design. The industrial design description consists of a section of description and a scope of protection of such industrial design.

2. The section of description of an industrial design must satisfy the following conditions:

a/ Fully disclosing all features expressing the nature of the industrial design and clearly identifying features which are new, different from the least different known industrial design, and consistent with the set of photos or drawings;

b/ Where the industrial design registration application consists of variants, the section of description must fully show these variants and clearly identify distinctions between the principal variant and other variants;

c/ Where the industrial design stated in the registration application is that of a set of products, the section of description must fully show features of each product of the set.

3. The scope of protection of industrial designs must clearly define features which need to be  protected, including features which are new and different from similar known industrial designs.

4. The set of photos and drawings must fully define features of the industrial design.

 

Applications for registration of copyright or related rights

By
sblaw
-

1. Authors, copyright holders or related right holders may directly file or authorize other organizations or individuals to file applications for registration of copyright or related rights

2. An application for registration of copyright or related rights comprises:

a/ A written declaration for registration of copyright or related rights.

A written declaration must be made in Vietnamese and signed by the author, copyright holder, related rights holder or person authorized to file the application, fully stating the information on the applicant, author, copyright holder or related rights holder; summarized content of the work, performance, phonogram, video recording or broadcast; the name of the author, the title of the work used to make derivative work in cases where the to be-registered work is a derivative work; the date, place and form of publication; the guaranteed responsibility for information stated in the application.

The Culture and Information Ministry shall set the  form of written declarations for copyright or related right registration;

b/ Two copies of the work subject to application for copyright registration, or two copies of the fixed

object subject to the related right registration;

c/ A letter of authorization where the applicant is the authorized person;

d/ Documents proving the right to file application where the applicant acquires such right due to inheritance, succession from or assignment by another person;

e/ Written consent of co-authors, for works under joint authorship;

f/ Written consent of co-owners if the copyright or related rights are under joint-ownership.

3. The documents specified at Point c, d, e and  f, section 2  must be made in Vietnamese. Documents in foreign languages must be translated into Vietnamese.

Obligations of requester apply the measures to control intellectual property-related imports, exports

By
sblaw
-

1. Requester apply the measure to control intellectual property-related imports, exports shall have the following obligations:

a/ To prove that they are intellectual property  right holders by producing documents and evidence specified Intellectual property  Law;

b/ To supply information sufficient to identify goods suspected of infringing upon intellectual property rights or to detect goods showing signs of intellectual property rights infringement;

c/ To file written requests to customs offices and pay fees and charges prescribed by law;

d/ To pay damages and other expenses incurred to persons subject to control measures in cases where the controlled goods are found having not infringed upon industrial property rights.

2. To secure the performance of the obligations specified at Point d above, a requester  the application of the measure of suspension of customs procedures shall have to deposit a security in one of the following forms

a/ A sum of money equal to 20% of the value of the goods lot subject to the application of the  measure of suspension of customs procedures, or at least VND 20 million where it is impossible to value such goods lot;

b/ A guarantee deed issued by a bank or another credit institution.

Procedures to apply the measure of suspension of customs procedures

By
sblaw
-

1. When persons requesting the suspension of customs procedures have fulfilled their obligations specified according to the Intellctual property Law, customs offices shall issue decisions on suspension of customs procedures with regard to goods lots in question.

2. The duration of suspension of customs procedures shall be 10 working days from the date of issuance of the suspension decision. Where the customs procedure suspension requester has justifiable reasons, this duration may be prolonged but must not exceed 20 working days, provided that the requester deposits the security

3. Upon the expiration of the duration specified in Clause 2 of this Article, if persons requesting the suspension of customs procedures do not initiate civil lawsuits and customs offices do not decide to accept the cases for handling of administrative violations of the goods lot exporters or importers according to administrative procedures, customs offices shall have the following responsibilities:

a/ To continue carrying out customs procedures for such goods lots;

b/ To compel persons requesting the suspension of customs procedures to compensate all the damage caused to the goods lot owners due to unreasonable requests for the suspension of customs procedures, and to pay expenses for warehousing and preservation of goods as well as other expenses incurred by customs offices and other related agencies, organizations and individuals according to the provisions of law on customs;

c/ To refund to persons requesting the suspension of customs procedures the remaining security amount after the obligation of paying compensations and expenses specified at Point b of this Clause is fulfilled.

Measures to control intellectual property-related imports, exports

By
sblaw
-

1. Measures to control intellectual property-related imports and exports include:

a/ Suspension of customs procedures for goods suspected of infringing upon intellectual property rights;

b/ Inspection and supervision to detect goods  showing signs of intellectual property right infringement.

2. Suspension of customs procedures for goods suspected of infringing upon intellectual property rights means a measure taken at the request of intellectual property right holders in order to collect information and evidence on goods lots in question so that the intellectual property right holders can exercise the right to request the handling of infringing acts and request the application of provisional urgent measures or preventive measures to secure the administrative sanctioning.

3. Inspection and supervision to detect goods showing signs of infringement of intellectual property rights means a measure taken at the request of  intellectual property right holders in order to collect information so that they can exercise the right to request the suspension of customs procedures.

4. In the course of application of the measures specified above, if any intellectual property counterfeit goods are detected  , customs offices shall have the right and responsibility to  apply administrative remedies to handle them according to the provisions of Article 214 and Article 215 of this Law.

Preventive measures to secure the administrative sanctioning

By
sblaw
-

1. In the following cases, organizations and individuals shall have the right to request competent agencies to apply preventive measures to secure the administrative sanctioning:

a/ Acts of infringing upon intellectual property rights are likely to cause serious damage to consumers or society;

b/ Infringement material evidence is likely to be dispersed or infringing individuals or organizations show signs of shirking their liabilities;

c/ To secure the enforcement of decisions on sanctioning of administrative violations.

2. Preventive measures to secure the administrative sanctioning applied according to administrative procedures to acts of infringing upon intellectual property rights include:

a/ Temporary custody of persons;

b/ Temporary custody of infringing goods, material evidence and means;

c/ Body search;

d/ Search of means of transport and objects; search of places where infringing goods, material evidence and means are hidden;

e/ Other administrative preventive measures according to the provisions of law on handling of administrative violations.

Intellectual property counterfeit goods

By
sblaw
-

Intellectual property counterfeit goods referred  to in this Law include goods bearing counterfeit marks and goods bearing counterfeit geographical indications (hereinafter referred to as counterfeit mark goods) and pirated goods .

– Counterfeit mark goods are goods or their packages bearing marks or signs which are identical with or indistinguishable from marks or geographical indications currently protected for those very goods without permission of mark owners or organizations managing such geographical indications.

– Pirated goods are copies made without the permission of copyright holders or related right holders.

Adminitrative penalty of infrigement of intellectual property right

By
sblaw
-

-The following acts of infringing upon industrial property rights shall be administratively sanctioned:

*  Committing an act of infringing upon intellectual property rights which causes damage to consumers or society;

* Failing to terminate an act of infringing upon  intellectual property rights though the intellectual property right holder has issued a written notice requesting the termination of such act;

* Producing, importing, transporting or trading in intellectual property counterfeit goods or assigning others to do so;

* Producing, importing, transporting or trading in articles bearing a mark or a geographical indication that is identical or confusingly similar to a protected mark or geographical indication or assigning others to do so.

– The Government shall specify acts of infringing upon intellectual property rights which shall be administratively sanctioned, sanctioning forms and levels, and procedures for sanctioning such acts.

– Organizations and individuals that commit acts of unfair competition in intellectual property shall be sanctioned for administrative violations according to the provisions of competition law.

Cancellation of the application of provisional urgent measures

By
sblaw
-

– The court shall issue decisions on cancellation of provisional urgent measures already applied in the cases specified  and in cases where the provisional urgent measure debtor can prove that the application of provisional urgent measures is not well grounded .

– In case of cancellation of a provisional urgent measure, the court shall consider the refund to the person requesting the application of such provisional urgent measure of the security defined:

* A sum of money equal to 20% of the value of  the goods subject to the application of provisional urgent measures, or at least VND 20 million where it is impossible to value such goods;

*  A guarantee deed issued by a bank or another credit institution.

Where a request for the application of a provisional urgent measure is not well grounded, thus causing damage to the provisional urgent measure debtor, the court shall compel the requester to pay compensation for the damage.

Provisional urgent measures

By
sblaw
-

– The following provisional urgent measures shall be applied to goods suspected of infringing upon intellectual property rights or to raw materials, materials or means of production or trading of such goods:

* Seizure;

* Distraint;

* Sealing; ban from alteration of original state; ban from movement;

* Ban from ownership transfer.

– Other provisional urgent measures shall be applied according to the provisions of the Civil

Procedure Code.

– Right to request the court to apply provisional urgent measures

Upon or after the initiation of a lawsuit, an intellectual property right holder shall have the right to request the court to apply provisional measures in the following cases:

* There exists a danger of irreparable damage to such intellectual property right holder;

*  Goods suspected of infringing upon intellectual property rights or evidence related to the act of infringing upon industrial property rights are likely to be dispersed or destroyed unless they are protected in time.

The court shall decide to apply provisional urgent measures at the request of the industrial property right holder defined above before listening to the party subject to such measures.

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