Should IP holders handle with the infringement through litigation?

Should IP holders handle with the infringement through litigation?

How to handle effectively with infringement is a big concern of Intellectual Property (IP) holders. Should the IP holder file a lawsuit at Court? Is this way effective in Vietnam?  Should the IP enforcement law firm in Vietnam be helpful? This article will give you general information about handling of intellectual property disputes through legal action at court in Vietnam.

IP Enforcement Law Firm in Vietnam

Unlike many countries in the world, in case of infringement, most IP holders proceed with lawsuits in the courts (judicial authorities), while other administrative agencies only perform measures to ensure enforcement of judgments of the court.

Protection of IP rights through the litigation has many advantages over administrative measures because it guarantees the enforcement and compensation from infringers. However, in our opinions, the practice of resolving IP rights disputes in courts is not as effective as administrative measures in Vietnam.

Vietnamese laws have not given separate regulations on procedures for settling IP disputes. Therefore, the procedures for settling disputes shall be governed by the Law on Civil procedure. According to Clause 2 of Article 30 and Clause 1 of Article 34 of this law, disputes over intellectual property rights and technology transfer between individuals and organizations and all purposes of profit are commercial disputes to be trialed at the courts of the province.

According to Article 202 of the IP Law, the court could decide the following civil measures to the infringers upon IP right:

-Compelling termination of the infringement of intellectual property rights;

-Compelling public rectification and apology;

-Compelling the performance of civil obligations;

-Compelling compensation for damages;

-Compelling destruction, or distribution/ use for non-commercial purpose.

In addition, when initiating a lawsuit or during dispute at court, the IP holders may request the court to apply provisional emergency measures in order to prevent damages.

In practice, the IP holder does not proactively protect IP rights by civil measures to file a lawsuit at court. The number of cases resolved by courts is much lower than the number of cases handled by administrative measures. Specifically, the number of cases resolved by court are 177 cases from 2012 to 2015, of which 91 cases were canceled. The number of cases resolved by administrative measure is of 22,914 cases (excluding cases handled by Vietnam Customs Authority)

The reason for the above survey is that, the IP holder is less likely to resolve disputes through courts because time for dispute resolution is lengthy, the process is cumbersome and complicated, but not as effective as administrative measures. Therefore, dealing with disputes in the specialized administrations will give faster effects to the IP holders in Vietnam.IP law firm in Vietnam could help client with providing legal advice specifically on IT related matters, dispute resolutions and IP enforcement.

If you are looking for an experienced IP services in Vietnam to help you with your IP application, you should visit ANTLawyers. Our attorneys have experience with the IP process and will work closely with you as you apply for your IP. 

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What are the benefits that a society gets from intellectual property rights (IPR)?

In theory, intellectual property encourages innovation by rewarding scientists, inventors, artists, scholars, and other creators with exclusive rights to their ideas and expressions. This in turn results in greater artistic, scientific, and technological achievement, which in turn advances the economy and quality of life, and progress of humanity as a whole.   

IP Enforcement in Vietnam

It also satisfies a deeply held sense of ownership, that if you discover or make something it’s yours. This may be cultural rather than innate – not every society believes this about the fruits of creativity.

Whether an IP regime serves these goals depends a lot on the legal regime put in place around it, and how that plays in a given cultural and economic context. To establish something as property involves creating a bundle of rights such as a right to alienate it by selling, trading, or licensing, a right to exclusivity, the ability to create and enforce contracts about it, and a right to enforce ownership through legal means. A lot of fine tuning is involved, which could result in an effective IP system, or alternately, one that enforces privilege and disparity of wealth by denying basic things like life-saving drugs, software tools, or popular songs to those without ability to pay, that concentrates wealth by adding IP assignment terms to every employment or contractor relationship, or that suppresses innovation by denying creators access to what other creators have done. Even so, an unfair IP regime may (or may not) create wealth for a society.

If you are looking for an experienced IP attorney in Vietnam to help you with your patent application, you should visit ANT Lawyers.vn. Our attorneys have experience with the IP process and will work closely with you as you apply for your patent. We routinely match inventors with experienced IP attorneys for a free consultation on our platform and offer a money back guarantee.

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Basis of appearance, establishment of intellectual property rights

The Vietnam Intellectual Property Law No. 50/2005/QH11 stipulates copyright, copyright-related rights; industrial property rights; rights in plant varieties and for the protection of these rights.

This law applies to Vietnamese organizations and individuals, foreign organizations and individuals that satisfy the requirements stipulated in this Law and international treaties to which the Socialist Republic of Vietnam is party of.

IP Enforcement in Vietnam

1. Copyrights shall arise at the moment when a work is created and expressed in a certain material form regardless of its content, quality, form, mean, language, whether or not it has been published or registered.

2. Related rights shall arise at the moment when a performance, a phonogram, a broadcast program and a satellite signal carrying encrypted program is fixed without prejudice to copyrights.

3. Intellectual property rights shall be established as follows:

a) Industrial property rights in inventions, industrial designs, layout-designs, marks, geographical indications shall be established on the basis of the competent State authority’s decision on the grant of Protection Title in accordance with registration procedures stipulated in this Law or on the recognition of international registration under international treaties to which the Socialist Republic of Vietnam is party; in terms of for well-known marks, the ownership rights shall be established on the basis of use independently from registration procedures.

b) Industrial property rights to trade names shall be established on the basis of lawful use of the trade names.

c) Industrial property rights in business secrets shall be established on the basis of legal acquirement and secret keeping of the business secrets;

d) Right to repression of unfair competition shall be established on the basis of competition in business.

4. Rights to new plant varieties shall be established on the basis of the competent State authority’s decision on the grant of Plant Variety Protection Title in accordance with registration procedures stipulated in this Law.

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If you steal someone else business idea and start your own company, what is the worst thing that can happen?

Well, to answer your questions, I’m going to say hypothetically that “you” stole something that was legally protected in some way (be it via patent, trademark, copyright, signing an NDA, or the likes).

Can they successfully stop you from operating your business? Yes, they have options that could put “you” out of business. If you’ve violated their legally protected rights to certain items (their trademarked name, their copy-protected material, their patented goods, or business processes from a former employer after you signed an NDA and it is still within the legal timeframe), they can exercise their options (cease and desist letters, lawsuit for an injunction to stop you plus damages) under the law.

IP infringement lawyers in Vietnam

Can they sue you? Yes, they can, but whether or not they will sue you is a different story. Keep in mind two things: they must first elect to exercise their rights and they’re probably going to wait until it is profitable to sue “you.”

What are the consequences? That depends on what, if anything, that they can prove in court that you did to violate their intellectual property rights.

In all honesty, if you or someone you know have found yourself with a legal threat of a lawsuit because of intellectual property, you should consult with a lawyer experienced in the area. The laws related to intellectual property can be complex and it isn’t something that you should do on your own (and you could get advice on whether what happened was actually a legal issue).

Antlawyers.vn is a legal marketplace that could help. We make it easy for inventors and entrepreneurs to hire and work with business-minded lawyers at low flat rates. We offer free initial consultations as well as quick and easy price quotes. Hope this helps!

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