Phần thứ năm Luật Sở hữu trí tuệ 2005: Bảo vệ quyền sở hữu trí tuệ

PART V

PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

Chapter XVI

GENERAL PROVISIONS ON PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

Article 198. Right to self-protection

1. An intellectual property right holder shall have the right to apply the following measures to protect the intellectual property rights of such holder:

 (a) To apply technological measures to prevent acts of infringement of its intellectual property rights;

 (b) To request any organization or individual who commits an act of infringement of the intellectual property rights of the holder to terminate such act, make a public apology or rectification, and pay damages;

 (c) To request the competent State body to deal with acts of infringement of its intellectual property rights in accordance with the provisions of this Law and other relevant laws;

 (d) To initiate a lawsuit at a court or a claim at an arbitration centre to protect the legitimate rights and interests of the holder.

2. Organizations and individuals who suffer loss and damage caused by acts of infringement of intellectual property rights or who discover acts of infringement of intellectual property rights which cause loss and damage to consumers or society shall have the right to request the competent State body to deal with such acts in accordance with the provisions of this Law and other relevant laws.

3. Organizations and individuals who suffer loss and damage or who are likely to suffer loss and damage caused by acts of unfair competition shall have the right to request the competent State body to apply the civil remedies stipulated in article 202 of this Law and the administrative remedies stipulated in the law on competition.

Article 199. Remedies when dealing with acts of infringement of intellectual property rights

1. Any organization or individual who commits an act of infringement of the intellectual property rights of another organization or individual shall, depending upon the nature and seriousness of such infringement, be dealt with by the application of civil, administrative or criminal remedies.

2. In necessary cases, the competent State body may apply provisional urgent measures, measures to control intellectual property related imports and exports, preventive measures and measures to secure enforcement of an administrative penalty in accordance with the provisions of this Law and other relevant laws.

Article 200. Authority for dealing with acts of infringement of intellectual property rights

1. The following bodies shall, within the scope of their respective duties and powers, have authority to deal with acts of infringement of intellectual property rights: courts, inspectorates, market management offices, customs offices, police offices and people's committees at all levels.

2. The application of civil and criminal remedies shall fall within the authority of courts. In necessary cases, courts may apply provisional urgent measures stipulated by law.

3. The application of administrative remedies shall fall within the authority of inspectorates, police offices, market management offices, customs offices and people's committees at all levels. In necessary cases, such bodies may apply preventive measures stipulated by law or measures to secure payment of administrative fines stipulated by law.

4. The application of measures to control intellectual property related imports and exports shall fall within the authority of customs offices.

Article 201. Intellectual property assessment

1. Intellectual property assessment means the use by competent organizations or individuals of their professional knowledge and expertise to make an assessment of and conclusions on matters related to cases of infringement of intellectual property rights.

2. A State body competent to deal with acts of infringement of intellectual property rights shall have the right to arrange for an intellectual property assessment while dealing with a case for which such body has accepted jurisdiction.

3. Intellectual property right holders and other related organizations and individuals shall have the right to request an intellectual property assessment in order to protect the legitimate rights and interests of such holder, organization or individual.

4. The Government shall provide detailed guidelines on activities being intellectual property assessment.

Chapter XVII

APPLICATION OF CIVIL REMEDIES IN DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS

Article 202. Civil remedies

Courts may apply the following civil remedies in dealing with organizations and individuals who have committed acts of infringement of intellectual property rights:

1. Compulsory termination of the infringing acts.

2. Compulsory public apology and rectification.

3. Compulsory performance of civil obligations.

4. Compulsory payment of damages for loss.

5. Compulsory destruction, distribution or use for non-commercial purposes of goods, raw materials and materials, and facilities used principally for the production or trading of goods which infringed intellectual property rights, provided that such destruction, distribution or use will not affect the exploitation of rights by intellectual property right holders.

Article 203. Burden of proof of litigants

1. The plaintiff and the defendant to a lawsuit regarding infringement of intellectual property rights shall bear the burden of proof stipulated in article 79 of the Civil Procedure Code and this article.

2. The plaintiff must prove that the plaintiff is the intellectual property right holder by leading one of the following forms of evidence:

 (a) Copies of the copyright registration certificate, related right registration certificate or protection title; or an extract of the National Register of Copyright and Related Rights, the National Register of Industrial Property or the National Register of Protected Plant Varieties;

 (b) Necessary evidence proving the basis for establishment of copyright or related rights in the absence of a copyright registration certificate, related right registration certificate; necessary evidence proving the right to a trade secret, trade name or well known mark;

 (c) Copy of the license contract for an intellectual property object where the use right is licensed pursuant to a contract.

3. The plaintiff shall bear the burden of proving acts of infringement of intellectual property rights or acts of unfair competition.

4. In a lawsuit regarding infringement of the right to an invention which is a production process, the defendant shall bear the burden of proving that the product of the defendant was produced by a process other than the protected process in the following cases:

 (a) The product made by the protected process is new;

 (b) The product made by the protected process is not new, but the invention owner believes that the product of the defendant is made by the protected process and fails to identify the process used by the defendant in spite of having applied appropriate measures.

5. Where a party to a lawsuit regarding infringement of intellectual property rights can prove that appropriate evidence proving such party's claim is under the control of the other party and is therefore inaccessible, the former party shall have the right to request the court to compel the latter party to produce such evidence.

6. When making a claim for compensation for damages for loss, the plaintiff must prove the plaintiff's actual loss and damage and specify the basis for determining the amount of compensation for damages in accordance with article 205 of this Law.

Article 204. Principles for determining loss and damage caused by an infringement of intellectual property rights

1. Loss and damage caused by acts of infringement of industrial property rights shall comprise:

(a) Material loss and damage including property loss, decrease in income and profit, loss of business opportunity, and reasonable expenses for mitigating and remedying the material damage;

 (b) Spiritual loss and damage including damage to honour, dignity, prestige, reputation and other spiritual loss caused to authors of literary, artistic and scientific works; to performers; to authors of inventions, industrial designs, layout designs; and to breeders of plant varieties.

2. The extent of damage shall be determined on the basis of actual losses suffered by intellectual property right holders due to acts of infringement of intellectual property rights.

Article 205. Bases for determining amount of damages for loss and damage caused by an infringement of intellectual property rights

1. Where the plaintiff proves that an act of infringement of intellectual property rights has caused the plaintiff material damage, the plaintiff shall have the right to request the court to decide the amount of damages on one of the following bases:

 (a) Total material damage calculated in an amount of money plus profit derived by the defendant as a result of the act of infringement of intellectual property rights, where the reduced profit amount of the plaintiff has not yet been included in such total material damage;

 (b) The price of the licensing of an intellectual property object on the assumption that the defendant was licensed by the plaintiff to use that object under a license contract within a scope corresponding to the act of infringement which was committed;

 (c) Where it is impossible to determine the amount of damages for material damage on the bases stipulated in sub-clause (a) and (b) of this clause, such amount of damages shall be set by the court depending on the extent of loss but must not exceed five hundred million (500,000,000) dong.

2. Where a plaintiff proves that the act of infringement of intellectual property rights caused the plaintiff spiritual damage, the plaintiff shall have the right to request the court to decide on the amount of damages depending on the extent of loss, to range from five million (5,000,000) to fifty million (50,000,000) dong.

3. In addition to the amount of damages stipulated in clauses 1 and 2 of this article, an industrial property right holder shall also have the right to request the court to compel the organization or individual who have committed the act of infringement of industrial property rights to pay reasonable costs of engaging a lawyer.

Article 206. Right to request the court to apply provisional urgent measures

1. 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:

 (a) There is a danger of irreparable damage to such intellectual property right holder;

 (b) Goods suspected of infringement of intellectual property rights or evidence related to the act of infringement of industrial property rights are likely to be dispersed or destroyed unless they are protected in time.

2. A court may make a decision applying provisional urgent measures at the request of an industrial property right holder as stipulated in clause 1 of this article before hearing the party subject to such measures.

Article 207. Provisional urgent measures

1. The following provisional urgent measures may be applied to goods suspected of infringing intellectual property rights or to raw materials and materials, or facilities of production or trading of such goods:

 (a) Retention;

 (b) Seizure;

 (c) Sealing; prohibiting any alteration of the original state; prohibiting any movement;

 (d) Prohibiting transfer of ownership.

2. Other provisional urgent measures may be applied in accordance with the Civil Procedure Code.

Article 208. Obligations of applicants for provisional urgent measures

1. Applicants for provisional urgent measures shall bear the burden of proving their right provided for in clause 1 of article 206 of this Law by producing the documents and evidence stipulated in clause 2 of article 203 of this Law.

2. An applicant for provisional urgent measures shall be obliged to pay compensation for loss caused to a person subject to such measures in a case where the latter is found not to have infringed industrial property rights. To secure the performance of this obligation, an applicant for provisional urgent measures shall deposit security in one of the following forms:

 (a) A sum of money equal to twenty (20) per cent of the value of the goods subject to the application of provisional urgent measures, or at least twenty million (20,000,000) dong where it is impossible to value such goods;

 (b) A deed of guarantee issued by a bank or other credit institution.

Article 209. Cancellation of application of provisional urgent measures

1. The court shall issue a decision cancelling provisional urgent measures previously applied in the case stipulated in clause 1 of article 122 of the Civil Procedure Code or in a case where the person subject to such measures proves that such application was not well founded.

2. In a case of cancellation of a provisional urgent measure, the court shall consider refunding the applicant the security stipulated in clause 2 of article 208 of this Law. Where a request for the application of a provisional urgent measure was not well founded thus causing loss to the person subject to such measure, the court shall compel the applicant to pay compensation for such loss.

Article 210. Authority and procedures for application of provisional urgent measures

The authority and procedures for application of provisional urgent measures shall be implemented in accordance with the provisions of Chapter VIII, Part One of the Civil Procedure Code.

Chapter XVIII

DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF ADMINISTRATIVE AND CRIMINAL MEASURES; CONTROL OF INTELLECTUAL PROPERTY RELATED IMPORTS AND EXPORTS

Section 1. DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF ADMINISTRATIVE AND CRIMINAL MEASURES

Article 211. Acts of infringement of industrial property rights which shall be subject to administrative penalties

1. The following acts of infringement of industrial property rights shall be subject to administrative penalties:

 (a) Acts of infringement of intellectual property rights which cause loss and damage to consumers or society;

 (b) Failure to terminate an act of infringement of intellectual property rights although the intellectual property right holder has issued a written notice requesting termination of such act;

 (c) Producing, importing, transporting or trading in intellectual property counterfeit goods stipulated in article 213 of this Law, or assigning others to do so;

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

2. The Government shall specify acts of infringement of intellectual property rights which shall be subject to administrative penalties, the forms and levels of penalties, and the procedures for applying same.

3. Any organization or individual who commits an act of unfair competition in intellectual property shall be subject to an administrative penalty in accordance with the law on competition.

Article 212. Acts of infringement of industrial property rights which shall be subject to criminal penalties

Any individual who commits an act of infringement of intellectual property rights involving a criminal element shall be criminally prosecuted in accordance with the criminal law.

Article 213. Intellectual property counterfeit goods

1. Intellectual property counterfeit goods regulated in this Law comprise goods bearing counterfeit marks and goods bearing counterfeit geographical indications (hereinafter referred to as counterfeit mark goods) defined in clause 2 of this article and pirated goods defined in clause 3 of this article.

2. Counterfeit mark goods means goods or their packages bearing a mark or sign which is identical with or indistinguishable from a mark or geographical indication currently protected for those very goods, without permission from the mark owner or organization managing the geographical indication.

3. Pirated goods means copies made without permission from the copyright holder or related right holder.

Article 214. Forms of administrative penalty and measures for remedying consequences

Any organization or individual who commits an act of infringement of intellectual property rights defined in clause 1 of article 211 of this Law shall be compelled to terminate such act and shall be subject to one of the following principal penalties:

 (a) A caution;

 (b) A monetary fine.

2. Any organization or individual who infringes intellectual property rights may, depending on the nature and seriousness of the infringement, also be subject to one of the following additional penalties:

 (a) Confiscation of intellectual property counterfeit goods, raw materials and materials, and facilities used mainly for production or trading of such intellectual property counterfeit goods;

 (b) Suspension of business activities for a fixed period in the sector in which the infringement was committed.

3. In addition to the penalties stipulated in clauses 1 and 2 of this article, any organization or individual who infringes intellectual property rights may also be subject to one or more of the following measures for remedying consequences:

 (a) Compulsory destruction, distribution or use for non-commercial purposes of intellectual property counterfeit goods as well as raw materials and materials, and facilities used mainly for production or trading of such intellectual property counterfeit goods, provided that such destruction, distribution or use will not affect the exploitation of rights by intellectual property right holders;

 (b) Compulsory transportation out of the territory of Vietnam of transit goods infringing intellectual property rights or compulsory re-export of intellectual property counterfeit goods and imported materials and raw materials, and facilities used mainly for production or trading of such intellectual property counterfeit goods after the infringing elements have been removed from such goods.

4. The amount of the monetary fine stipulated in sub-clause (b) of clause 1 of this article shall be set at least equal to the value of the detected infringing goods but shall not exceed five times such value.

The Government shall issue detailed regulations on the method of determining the value of infringing goods.

Article 215. Preventive measures and/or measures to secure enforcement of administrative penalties

1. In the following cases, organizations and individuals shall have the right to request the competent body to apply preventive measures and/or measures to secure enforcement of the administrative penalties stipulated in clause 2 of this article:

 (a) An act of infringement of intellectual property rights is likely to cause serious loss and damage to consumers or society;

 (b) Material evidence of the infringement is likely to be dispersed or there are indications that the offender will evade responsibility;

 (c) In order to secure enforcement of a decision imposing an administrative penalty.

2. Preventive measures and/or measures to secure enforcement of administrative penalties which may be applied in accordance with administrative procedures to acts of infringement of intellectual property rights shall comprise:

 (a) Temporary detention of persons;

 (b) Temporary custody of infringing goods, material evidence and facilities;

 (c) Body searches;

 (d) Searches of means of transport and objects; searches of places where infringing goods, material evidence and facilities are hidden;

 (dd) Other administrative preventive measures in accordance with the law on dealing with administrative breaches.

Section 2. CONTROL OF INTELLECTUAL PROPERTY RELATED IMPORTS AND EXPORTS

Article 216. Measures to control intellectual property related imports and exports

1. Measures to control intellectual property related imports and exports shall comprise:

 (a) Suspension of customs procedures for goods suspected of infringing intellectual property rights;

 (b) Inspection and supervision to detect goods showing signs of infringing intellectual property rights.

2. Suspension of customs procedures for goods suspected of infringing intellectual property rights means a measure taken at the request of an intellectual property right holder in order to collect information and evidence on the goods consignment in question so that the intellectual property right holder may exercise the right to request that the infringing act be dealt with and to request the application of provisional urgent measures, preventive measures and/or measures to secure enforcement of administrative penalties.

3. Inspection and supervision to detect goods showing signs of infringing intellectual property rights means a measure taken at the request of an intellectual property right holder in order to collect information for the exercise of the right to request suspension of customs procedures.

4. If any intellectual property counterfeit goods within the meaning of article 213 of this Law are found during the course of application of the measures stipulated in clauses 2 and 3 of this article, the customs office shall have the right and responsibility to apply administrative remedies to deal with such goods in accordance with articles 214 and 215 of this Law.

Article 217. Obligations of applicants for measures to control intellectual property related imports and exports

1. An applicant for application of a measure to control intellectual property related imports or exports shall have the following obligations:

 (a) To prove that the applicant is an intellectual property right holder by producing the documents and evidence stipulated in clause 2 of article 203 of this Law;

 (b) To supply information sufficient to identify goods suspected of infringing intellectual property rights or to detect goods showing signs of infringing intellectual property rights;

 (c) To file a written request with the customs office and to the pay fees and charges stipulated by law;

 (d) To pay damages and other expenses incurred to persons subject to control measures in a case where the controlled goods are found not to have infringed industrial property rights.

2. In order to secure the performance of the obligation stipulated in sub-clause (d) of clause 1 of this article, an applicant shall deposit security in one of the following forms:

 (a) A sum of money equal to twenty (20) per cent of the value of the goods consignment subject to the application of the measure of suspension of customs procedures, or at least twenty million (20,000,000) dong where it is impossible to value such goods;

 (b) A deed of guarantee issued by a bank or other credit institution.

Article 218. Procedures for application of the measure of suspension of customs procedures

1. When an applicant for the suspension of customs procedures has fulfilled the obligations stipulated in article 217 of this Law, the customs office shall issue a decision suspending customs procedures with regard to the goods consignment in question.

2. The duration of suspension of customs procedures shall be ten (10) working days from the date of issuance of the suspension decision. Where the applicant has justifiable reasons, this duration may be extended but must not exceed twenty (20) working days, provided that the applicant deposits the security stipulated in clause 2 of article 217 of this Law.

3. Upon expiry of the duration stipulated in clause 2 of this article, if the applicant does not initiate civil proceedings and the customs office does not issue a decision accepting jurisdiction to deal with the case in accordance with administrative procedures as an administrative breach by the importer or exporter of the goods, then the customs office shall have the following responsibilities:

 (a) To continue customs procedures for the goods consignment in question;

 (b) To compel the applicant to compensate for all loss and damage caused to the owner of the goods consignment due to the unreasonable request for suspension of customs procedures, and to pay expenses for warehousing and preservation of goods as well as other expenses incurred by the customs office and any related body, organization or individual in accordance with the law on customs;

 (c) To refund to the applicant the remaining security amount after the obligation to pay compensation and expenses stipulated in sub-clause (b) above has been fulfilled.

Article 219. Inspection and supervision to detect goods showing signs of infringement of intellectual property rights

Where an intellectual property right holder requests inspection and supervision to detect goods showing signs of infringement of intellectual property rights and the customs office then finds such a goods consignment, the customs office shall promptly notify the applicant thereof. If the applicant does not request the suspension of customs procedures with regard to the offending goods consignment and the customs office does not issue a decision on consideration of application of the administrative penalties stipulated in articles 214 and 215 of this Law within three working days from the date of notification, then the customs office must continue carrying out customs procedures for the goods consignment in question.

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