Demands for establishing intellectual property courts in Vietnam05/08/2020 admin
After many years of innovation and globalization, the intellectual property law system of Vietnam has had outstanding advancement. Similar to other kinds of properties, the intellectual property right is a kind of rights protected by Constitution and Laws. However, the infringements of intellectual property right in Vietnam are at the alarm level. The popularity of counterfeits is progressively increasing, especially intellectual property infringement on the internet environment. The distribution of copyright protected goods without the owner’s permission also is more and more complicated. According to the special report 301 in 2019 of United States Trade Representative (USTR), Vietnam is unable to provide adequate and effective border protection against counterfeit and pirated goods, fail to adequately resolve the emerging challenges and persist in relation to copyright infringement including piracy on the online environment.
In light of the increasing demand to protect IP rights in the globalization era, Vietnamese laws have also recognized the jurisdiction of the People’s Court to resolve intellectual property disputes. However, so far, not so many intellectual property cases have been resolved at the Court because of the too long processing time of dispute resolution. The procedures for filing lawsuits are complicated. Therefore, in order to well enforce intellectual property rights, it is necessary for Vietnamese laws to build and improve the Court systems to protect intellectual property rights. For this reason, the establishment of a specialized Court system of Intellectual Property in Vietnam will promptly meet objective requirements in the industrial revolution 4.0.
1| Measures to deal with intellectual property infringements in Vietnam
The current Intellectual Property Law does not have specific provisions on the mechanisms for resolving intellectual property rights disputes. Generally, where the protected intellectual property right is infringed, the right owner may apply following measures to enforce his rights, namely:
- Applying technological measures to prevent infringements;
- Requesting an infringing organization or individual to stop the infringing act, apologize, publicly rectify and compensate for damage;
- Requesting competent state agencies to handle infringements;
- Initiating a lawsuit in court to protect its legitimate rights and interests.
Thus, if an IP dispute arises, the owner may require State agencies to enforce his legitimate rights, including:
- Taking legal proceedings ate the court to protect their legitimate rights and interests (Civil remedies);
- Requesting competent State agencies to handle infringements such as Market Management (Ministry of Industry and Trade), Economic Police (Ministry of Public Security), Customs (Ministry of Finance), Science and Technology Inspectorate (Ministry of Science and Technology) … (Administrative remedies);
- Denouncing as the provisions of criminal law for individuals committing acts of infringing upon intellectual property rights with elements constituting crimes (Criminal remedies).
In fact, the application of Civil remedies prescribed in the Civil Procedure Code in resolving disputes of intellectual property right is time-consuming, expensive, and ineffective in some practical aspects. Therefore, the owner tends to be afraid to invoke civil remedies.
On the other hand, administrative remedies bring advantages in time and fee. This measure is known as “dealing with infringement of rights” which is a specific method in Vietnam. If the violation is identified, the violating organization/individual will be fined; suspended the production and trading of infringing goods and services within a definite time; forced to remove infringing elements on goods, business facilities, or destroy nfringing goods, means of business … However, there are some disadvantages in applying administrative measures to resolve complex IP disputes. In such cases, the litigation processes may be required.
2| The need to set up a specialized Court on intellectual property
With the diversity of intellectual property objects and the complexity of different types of intellectual property disputes, courts may find challenging to deal with intellectual property cases. Moreover, due to the lack of professional skills in IP field, decisions of judgments often fail to provide solid grounds for assessing infringements of intellectual property rights. For that reason, Court’s decisions at different levels in the same case may be contradictory.
Besides, in the 4.0 technology revolution, everything is connected by the internet, infringements of intellectual property rights are more and more complicated in terms of the volume and the scope of infringements, not only in the territory of Vietnam but also expands to other nations at the same time. The Intellectual Property Court not only resolves disputes over patent rights, trademarks and common copyrights but also deals with infringements and disputes involving foreign elements and broadens the settlement of disputes on advertising, domain name disputes in the digital field, the use of copyright without permission on the online media.
From the above analysis, it can be observed that the ability of court system to handle disputes on intellectual property rights is still limited while there is an increase in both quantity and complexity of IP cases. However, with the legislative regime being adjusted to suit the situation of economic and social development, along with the proposal to set up a specialized intellectual property court to resolve disputes on intellectual property rights, the situation is expected to improve soon. In parallel with the establishment of a specialized court to handle disputes on intellectual property rights, it is necessary to provide professional training for Judges and Court officials.
If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.
This article is for general information only and is not a substitute for legal advice.
 Special Report 301 of US Department of Commerce (USTR) Office 2019 (English only) at the link: https://ustr.gov/sites/default/files/2019_Special_301_Report.pdf; Or see the brief information posted at: https://khoahocphattrien.vn/thoi-su-trong-nuoc/viet-nam-con-it-don-sang-che-quoc te / 201905160254584p882c918.htm
 Article 198 of Intellectual Property Law 2005