Intellectual Property (IP) plays a pivotal role in fostering innovation and protecting the rights of individuals and organizations engaged in creative activities. In Vietnam, as the country continues to integrate into the global economy, the significance of IP protection has garnered considerable attention. This article examines and outlines the legal framework governing IP and the procedures for addressing IP infringements in Vietnam while providing detailed information on policy mechanisms available to IP rights holders.
1. Legal Framework for IP Protection in Vietnam
The legal framework governing Intellectual Property (IP) in Vietnam primarily consists of the 2005 IP Law, as amended in 2009, 2019, and 2022. In addition, the IP Law is supplemented by various decrees, circulars, and international treaties. Below are some international treaties related to IP rights protection that are recognized and applied in Vietnam:
- The Paris Convention for the Protection of Industrial Property.
- The Berne Convention for the Protection of Literary and Artistic Works.
- The TRIPS Agreement under the WTO framework.
- The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
These instruments collectively establish a robust framework for IP rights protection and enforcement.
2. Mechanisms for Intellectual Property Rights Protection in Vietnam
a. Administrative measures
Administrative measures are the most commonly used due to their high efficiency and lower costs compared to other options. Intellectual property (IP) rights holders can file complaints with competent authorities such as the Inspectorate, Police, Market Surveillance, Customs, or People’s Committees at various levels.
Organizations or individuals committing one or more of the following IP infringement acts may face administrative penalties:
- IP rights infringement causing damage to the author, owner, consumers, or society;
- Manufacturing, importing, transporting, or trading counterfeit IP goods as defined under the IP Law, or assigning others to perform such acts;
- Manufacturing, importing, transporting, trading, or storing labels or items bearing counterfeit trademarks or geographical indications, or assigning others to perform such acts.
Primary administrative penalties for IP infringements include warnings and monetary fines. Depending on the nature and severity of the infringement, supplementary sanctions may also be imposed, such as:
- Confiscation of counterfeit IP goods, materials, equipment, and means primarily used to produce or trade such goods;
- Temporary suspension of business operations in the field where the infringement occurred.
In addition to sanctions, competent authorities may require remedial measures such as distributing or utilizing counterfeit IP goods, materials, and equipment for non-commercial purposes, provided it does not affect the rights of the IP owner and complies with other government regulations.
b. Civil measures
Civil measures are applied to IP violations through legal action in court. Litigation is a time-consuming process that requires substantial evidence of infringement and expert evaluations to determine the extent of violations and actual damages caused. However, this approach provides comprehensive resolution and enforcement of court rulings, making it a valuable tool for IP rights holders.
IP rights holders can file lawsuits in court to address violations through the following civil measures:
- Public apology and correction;
- Fulfillment of civil obligations;
- Compensation for damages;
- Destruction or non-commercial utilization of infringing goods, materials, and equipment used to produce or trade such goods, provided it does not affect the exploitation rights of the IP owner.
Damages caused by IP infringements include material and non-material damages. Material damages cover property losses, decreased income or profits, loss of business opportunities, and reasonable costs for prevention and remediation. Non-material damages encompass harm to reputation, honor, and dignity, as well as other emotional distress suffered by authors, performers, or inventors.
To determine compensation, IP rights holders must quantify actual losses caused by the infringement. The court may award compensation based on:
- The total material loss plus the profits gained by the infringer if not already included in the total material loss;
- The licensing fee that would have been charged if the infringer had been granted a license under similar conditions;
- Other methods proposed by the IP rights holder in accordance with the law;
- If none of the above methods apply, the court may award up to VND 500 million, depending on the extent of material loss.
For non-material damages, rights holders can claim compensation ranging from VND 5 million to VND 50 million, depending on the severity of the harm caused.
Beside administrative and civil measures, Vietnam’s IP law also provides for criminal prosecution and export/import control to address IP violations. In the second part of this article, Apolat Legal will offer detailed insights into these mechanisms and outline specific steps for handling IP rights violations.
c. Criminal Measures
Criminal measures are applied in cases where individuals or commercial organizations deliberately infringe upon IP rights and cause significant harm to the rights holder or society. According to Article 212 of the amended Intellectual Property Law (2022), individuals and commercial entities engaging in acts of IP infringement that constitute criminal offenses will be prosecuted.
The current Criminal Code stipulates the following crimes related to IP infringement:
- Article 192 – Crime of producing and trading counterfeit goods;
- Article 193 – Crime of producing and trading counterfeit food, food additives;
- Article 194 – Crime of producing and trading counterfeit medicines for treatment or prevention;
- Article 195 – Crime of producing and trading counterfeit goods such as animal feed, fertilizers, veterinary drugs, pesticides, plant seeds, and livestock breeds;
- Article 225 – Crime of infringing copyright and related rights; and
- Article 226 – Crime of infringing industrial property rights.
In addition to monetary penalties specified in the above provisions, imprisonment is also applicable for serious and particularly serious crimes. Especially, life imprisonment or the death sentence may apply to offenders producing or trading counterfeit medicines for treatment or prevention if:
- Unlawful profits reach 2,000,000,000 VND or more;
- The act causes the death of two or more people;
- The act causes injuries or health damage to two or more people, with a total bodily harm rate of 122% or more;
- The act causes property damage of 1,500,000,000 VND or more.
Additionally, for commercial entities committing such acts, courts may require the entity to export or re-export goods, items, or means imported into Vietnam that violate IP laws or counterfeit IP rights, after removing infringing elements to mitigate and prevent further consequences of the crime.
d. Measures for Controlling Exported and Imported Goods in Protecting IP Rights
Measures to control exported and imported goods are applied when IP rights holders request enforcement against infringing acts, or customs authorities proactively act if there is clear evidence suggesting exported or imported goods violate IP rights. The measures include:
- Temporarily suspending customs procedures for suspected infringing goods;
- Inspecting and supervising goods to detect signs of infringement.
To apply such measures, the requester has the following obligations:
- Proving their status as the IP rights holder according to legal provisions;
- Providing sufficient information to identify the suspected infringing goods or detect signs of infringement;
- Submitting an application to customs authorities and paying applicable fees and charges;
- Compensating damages and covering expenses incurred by the affected party in cases where the controlled goods do not infringe IP rights.
