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Bases for determination of compensations for damage caused by infringements of intellectual property rights

By
sblaw
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– Where the plaintiff can prove that an act of infringing upon intellectual property rights has caused material damage to him/her, he/she shall have the right to request the court to decide on the compensation level on one of the following bases:

*  Total material damage calculated in an amount of money plus profit gained by the defendant as a result of an act of infringing upon intellectual property rights where the reduced profit amount of the plaintiff has not yet been calculated into such total material damage;

* The price of the licensing of an intellectual property object with the presumption that the defendant has been licensed by the plaintiff to use that object under a license contract within a scope corresponding to the committed infringing act;

* Where it is impossible to determine the level of compensation for material damage on the bases specified at Points a and b of this Clause, such compensation level shall be set by the court, depending on the damage extent, but must not exceed VND 500 million.

– Where the plaintiff can prove that an act of infringing upon intellectual property rights has caused spiritual damage to him/her, he/she shall have  the right to request the court to decide on the compensation level ranging from VND 5 million  to VND 50 million, depending on the damage extent.

– In addition to the damage compensation defined in Clauses 1 and 2 of this Article, industrial property right holders shall also have the right to request the court to compel organizations or individuals that have committed acts of infringing upon industrial property rights to pay reasonable costs of hiring attorneys.

Determination of damage caused by infringements of intellectual property rights

By
sblaw
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Damage caused by acts of infringing upon industrial property rights include:

* Material damage, including property losses,  decreases in income and profit, loss of business opportunities, reasonable expenses for prevention and remedying of such damage;

* Spiritual damage, including damage to honor, dignity, prestige, reputation and other spiritual losses

caused to authors of literary, artistic and scientific works; to performers; to authors of inventions,

industrial designs, layout-designs; and breeders of plant varieties.

– The extent of damage shall  be determined on the basis of actual losses suffered by intellectual

property right holders due to acts of infringing upon intellectual property rights.

 

Measures for handling infingements of Intellectual property rights

By
sblaw
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There are 4 measures for handling infingements of Intellectual property rights:

– Civil remedies

* Compelling the termination of infringing acts;

*  Compelling the public apology and rectification;

*  Compelling the performance of civil obligations;

*  Compelling the payment of damages;

* Compelling destruction, distribution or use for non-commercial purposes of goods, raw materials,

materials and means used largely for the production or trading of intellectual property right-infringing

goods, provided that such destruction, distribution or use does not affect the exploitation of rights by

intellectual property right holders.

– Adminitrative action

*  Principal sanctions:

> Cautions

>  Monetary fine

* Additional sanctions:

> Confiscation of intellectual property counterfeit goods, raw materials, materials and means used

mainly for production or trading of such intellectual property counterfeit goods;

>  Suspension of business activities in domains  where infringements have been committed for a

definite time.

* Consequence remedies:

> Compelled destruction or distribution or use for non-commercial purposes of intellectual property counterfeit goods as well as raw materials, materials and means used mainly for production or trading of such intellectual property counterfeit goods, provided that such destruction, distribution or use does not affect the exploitation of rights by intellectual property right holders;

>  Compelled transportation out of the Vietnamese territory of transit goods infringing upon intellectual property rights or compelled re-export of intellectual property counterfeit goods, as well as imported means, raw materials and materials used mainly for production or trading of such intellectual property counterfeit goods, after infringing elements are removed from such goods.

– Criminal measure

– Border control

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

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

The owners of copyright

By
sblaw
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– Copyright holders mean organizations and individuals that hold one, several or all the economic rights

– Copyright holders being authors

Authors who use their own time, finance and material-technical foundations to create works shall have the moral rights and the economic rights

– Copyright holders being co-authors

Co-authors who use their time, finance and material-technical foundations to jointly create works shall share the moral rights  and the economic rights

A co-author who has jointly created a work, a separate part of which can be detached for independent use without any prejudice to parts of other co-authors, shall have the moral rights  and the economic rights to such separate part

– Copyright holders being organizations and individuals that have assigned tasks to authors or entered into contracts with authors

Organizations which have assigned tasks of creating works to authors who belong to them shall be holders of the rights rights specified in Article 20 and Clause 3, Article 19 of Intellctual property Law, unless otherwise agreed.

Organizations and individuals that have entered into contracts with authors for creation of works shall be holders of the rights specified in Article 20 and Clause 3, Article 19 of Intellctual property Law, unless otherwise agreed.

– Copyright holders being heirs

Organizations and individuals that inherit the  copyright according to the provisions of law on inheritance shall be holders of the rights specified in Article 20 and Clause 3, Article 19 of Intellctual property Law

– Copyright holders being right assignees

Organizations and individuals that are assigned one, several or all of the rights specified in Article 20 and Clause 3, Article 19 of  Intellctual property Law under contracts shall be copyright holders.

– Copyright holders being the State

* The State shall be the holder of copyright to the following works:

Anonymous works;

> Works, of which terms of protection have not expired but their copyright holders die in default of  heirs, heirs renounce succession or are deprived of the right to succession.

> Works, over which the ownership right has been assigned by their copyright holders to the State.

*The Government shall specify the use of works under the State ownership

 

 

Term of related right protection

By
sblaw
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– The rights of performers shall be protected for fifty years counting from the year following the year of fixation of their performances.

– The rights of producers of phonograms or video recordings shall be protected for fifty years counting from year following the year of publication, or fifty years counting from the year following the year of fixation of unpublished phonograms or video recordings.

– The rights of broadcasting organizations shall be protected for fifty years counting from the year following the year of the making of their broadcasts.

– The term of protection specified above  shall expire at 24:00 hrs of December 31 of the year of expiration of related right protection term.

Copyright to protected works

By
sblaw
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1. Copyright to cinematographic works and dramatic works

a) Persons who act as directors; screenwriters; cameramen; montage-makers; music composers; art designers; studio sound, lighting and art designers; studio instrument and technical-effect designers, and persons engaged in other creative jobs in the making of cinematographic works, shall enjoy the moral rights except to publish their works or authorize other persons to publish their works;

– Persons who act as directors, playwrights, choreographers, music composers, art designers, stage sound, lighting and art designers, stage instrument and technical-effect designers, and persons engaged in other creative jobs in the making of dramatic works, shall enjoy the moral rights except to publish their works or authorize other persons to publish their works;

-b) Organizations and individuals that invest their finance and material-technical facilities in the production of cinematographic works and dramatic works shall be holders of the rights to publish their works or authorize other persons to publish their works;

c) Organizations and individuals defined in Clause  b)  are obliged to pay royalties, remunerations and other material benefits as agreed upon with the persons defined in Clause a)

2. Copyright to computer programs and compilations of data

– A computer program means a set of instructions which is expressed in form of commands, codes, diagrams or any other form and, when incorporated in a device readable to computers, capable of enabling such computers to perform a job or achieve a designated result.

Computer programs shall be protected like literary works, irrespective of whether they are expressed in form of source codes or machine codes.

– A compilation of data means a set of data selected or arranged in a creative manner and expressed in electronic form or other forms. The protection of copyright to compilations of data does not cover, and is not prejudicial to copyright to those very data.

3. Copyright to folklore or folk art works of folklore

– Folklore or folk art works mean collective  creations based on traditions of a community or individuals reflecting such community’s earnest expectations, of which the expression is appropriate to its cultural and social characteristics, and its standards and values, which have been handed down by imitation or other modes. Folklore and folk art works include:

* Folk tales, lyrics and riddles;

* Folk songs and melodies;

*  Folk dances, plays, rites and games;

*  Folk art products, including graphics, paintings, sculptures, musical instruments, architectural models, and products of other folk arts expressed in whatever material form.

–  Organizations and individuals using folklore and  folk art works of folklore must refer to their sources and preserve their true values

4. Copyright to literary, artistic and scientific works

The protection of copyright to literary, artistic  and scientific works provided for in Clause 1, Article 14 of Intellectual property shall be specified by the Government.

 

Competence and procedures for licensing of inventions under compulsory decisions

By
sblaw
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The Science and Technology Ministry shall issue decisions on licensing of inventions based on the consideration of requests for licensing in the cases below after consulting opinions of the Science and Technology Ministry.

– The holder of exclusive right to use such invention fails to fulfill the obligations to use such invention

– A person who wishes to use the invention fails to reach an agreement with the holder of exclusive right to use such invention on the entry of an invention license contract in spite of his/her efforts made within a reasonable time for negotiation on satisfactory commercial price and conditions;

– The holder of exclusive right to use such invention is considered having performed anti-competition practices banned by competition law.

Ministries and ministerial-level agencies shall issue decisions on licensing of inventions in domains under their respective management in the cases after consulting opinions of the Science and Technology Ministry: the use of such invention is for public and non-commercial purposes or in service of national defense, security, disease prevention and treatment and nutrition for people or other urgent needs of the society

* Decisions on licensing of inventions must set out appropriate use scope and conditions according to the provisions of Article 146 of Intellctual property

* The state agency competent to decide on licensing of inventions shall have to promptly notify the holders of exclusive right to use such inventions of its decisions

* Decisions on licensing of inventions or on refusal of licensing of inventions may be subject to complaints or lawsuits according to the provisions of law

* The Government shall specify procedures for licensing of inventions defined in these cases

 

 

 

Compulsory licensing of inventions

By
sblaw
-
man wearing a suit sitting in a table showing a signboard with the text licensing written in it

In the following cases, the right to use an invention may be licensed to another organization or individual under a decision of the competent state agency without permission from the holder of exclusive right to use such invention:

– Where the use of such invention is for public and non-commercial purposes or in service of national defense, security, disease prevention and treatment and nutrition for people or other urgent needs of the society.

– Where the holder of exclusive right to use such invention fails to fulfill the obligations to use such invention provided for in Clause 1, Article 136  and Clause 5, Article 142 of Intellctual property  Law upon the expiration of a 4-year duration as from the date of filing the invention registration application and the expiration of a 3-year duration as from the date of granting the invention patent;

– Where a person who wishes to use the invention fails to reach an agreement with the holder of exclusive right to use such invention on the entry of an invention license contract in spite of his/her efforts made within a reasonable time for negotiation on satisfactory commercial price and conditions;

– Where the holder of exclusive right to use such invention is considered having performed anti- competition practices banned by competition law.

The holder of exclusive right to use an invention may request the termination of the use right when the bases for licensing provided above  no longer exist and are unlikely to recur, provided that such termination shall not be prejudicial to the invention licensee

Right of prior use of inventions

By
sblaw
-

– Where a person has, before the publication date  of an invention registration application, used or prepared necessary conditions for use of an invention identical with the protected invention stated in such registration application but created independently (hereinafter referred to as the prior use right holder), then after a protection title is granted, such person shall be entitled to continue using such invention within the scope and volume of use or use preparations without having to obtain permission of or paying compensations to the owner of the protected invention.

The exercise of the right of prior users of inventions shall not be regarded as an infringement of the right of invention or industrial design owners.

– . Holders of prior use right to inventions must not assign such right to others, except where such right is assigned together with the transfer of business or production establishments which have used or are prepared to use the inventions  Prior use right holders must not expand the use scope and volume unless it is so permitted by invention owners.

Provisional rights to industrial designs

By
sblaw
-
Single Red Document Folder among Many Blue on White Background 3D Illustration, Find Documents Concept

– Where an applicant for registration of an industrial design knows that such industrial design is being used by another person without prior use right for commercial purposes, the applicant may notify in writing the user of the filing of his/her application, clearly specifying the filing date and the date of application publication in the Official Gazette of Industrial Property so that the later shall terminate or continue such use

– Where the person notified of contents specified continues using industrial design as soon as an industrial design patent the owner of such  shall have the right to request the user of such industrial design to pay a compensation equivalent to the price for licensing of such  industrial design within the relevant scope and duration of use.

 

Provisional rights to inventions

By
sblaw
-

– Where an applicant for registration of an invention knows that such invention is being used by another person without prior use right for commercial purposes, the applicant may notify in writing the user of the filing of his/her application, clearly specifying the filing date and the date of application publication in the Official Gazette of Industrial Property so that the later shall terminate or continue such use

– Where the person notified of contents specified continues using such invention as soon as an invention patent shall have the right to request the user of such invention to pay a compensation equivalent to the price for licensing of such invention within the relevant scope and duration of use.

Acts of infringing upon the rights to trademark

By
sblaw
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The following acts if being performed without the permission of mark owners, shall be regarded as  infringements of the rights to marks:

– Using signs identical with protected marks for goods or services identical with goods or services on the lists registered together with such marks;

– Using signs identical with protected marks for goods or services similar or related to those goods on services on the lists registered together with such marks, if such use is likely to cause confusion as to the origin of the goods or services;

– Using signs similar to protected marks for goods or services identical with, similar to or related to goods or services on the lists registered together with such marks, if such  use is likely to cause confusion as to the origin of the goods or services;

– Using signs identical with, or similar to, well-known marks, or signs in the form of translations or transcriptions of well-known marks for any goods or services, including those unidentical with, dissimilar or unrelated to goods or services on the lists of those bearing well-known marks, if such use is likely to cause confusion as to the origin of the goods or services or misleading impression as to the relationship between users of such signs and well-known mark owners.

Requirements on trademark registration applications

By
sblaw
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1. Documents, samples, information identifying a mark registered for protection in a trade mark registration application include:

– A sample of the mark and a list of goods or services bearing the trade mark;

– Regulation on use of collective marks or regulation on use of certification trade mark.

2. The sample of the mark must be described in order to clarify elements of the trade mark and the comprehensive meaning of the trade mark, if any; where the mark consists of words or phrases of hieroglyphic languages, such words or phrases must be transcribed; where the trade mark consists of words or phrases in foreign languages, such words or phrases must be translated into Vietnamese.

3. Goods or services listed in a mark registration application must be classified into appropriate groups in accordance with the Classification List under the Nice Agreement on International Classification of Goods and Services for the purpose of mark registration, and published by the state management agency in charge of industrial property rights.

4. The regulation on use of collective marks consists of the following principal contents:

– Name, address, grounds of establishment and operations of the collective organization being the owner of the trade mark;

– Criteria for becoming a member of the collective organization;

– List of organizations and individuals permitted to use the trade mark;

–  Conditions for use of the trade mark;

– Measures for handling acts violating the regulation on use of trade mark.

5. The regulation on use of certification trade mark consists of the following principal contents:

– The organization or individual being the trade mark owner;

– Conditions for using the trade mark;

– Characteristics of goods or services certified by the trade mark;

– Methods of evaluating characteristics of goods or services and methods of controlling the use of the

trade mark;

e/ Expenses to be paid by the mark user for the certification and protection of the mark, if any

Requirements on industrial design registration applications

By
sblaw
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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.

Requirements on invention registration applications

By
sblaw
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1. Documents identifying an invention registered for protection in an invention registration application shall include a description of the invention and an abstract of the invention. The invention description consists of the description section and the scope of protection of the invention.

2. The description of invention must satisfy the following conditions:

a/ Fully and clearly disclosing the nature of the invention to the extent that such invention may be realized by a person with average knowledge in the art;

b/ Briefly explaining the accompanied drawings, if it  is required to further clarify the nature of the invention;

c/ Clarifying the novelty, inventive step and susceptibility of industrial application of the invention.

3. The scope of protection of inventions shall be expressed in the form of a combination of technical specifications which are necessary and sufficient to identify the scope of the rights to such inventions, and compatible with the description of inventions and drawings.

4. Abstracts of inventions must disclose principal features of nature of such inventions.

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