Vietnam

ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS (IPRs)                                                                
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1.  INTRODUCTION TO IPR ENFORCEMENT IN VIETNAM
1.1. Main features

The enforcement of IPRs in Vietnam operates in the general framework of enforcement. There does not exist a special system for IPR enforcement in both civil and administrative procedures. As a matter of fact, resorting to administrative procedures and remedies to repress an IPR infringement is regarded more effective than taking a suit before a court. While a few of IPR cases are brought before the courts, a large number of cases are handled by the administrative enforcement authorities. Apart from the inadequacy in the particular civil procedures and remedies for IPR enforcement, the limited qualification and capacity of judges in dealing with IPR matters reduce the incentives of IPR enforcement under the civil procedures.   
In the context of the immature IPR knowledge of the enforcement bodies, the National Office of Intellectual Property plays an active role in preparing and disseminating the national policies and regulations on IPR enforcement. In practice, the enforcement bodies often consult with the National Office of Intellectual Property plays in handling the IPR related cases.

1.2   IPR enforcement authorities

• The People's Courts;
• The Specialized Inspectorates;
• The Market Control Forces;
• The Customs Offices;
• The Economic Polices;
• The People’s Committees.

1.3 Main source of the national law for IPR enforcement:

• The Civil Code (2005);
• The Procedure Civil Code (2004);
• The Criminal Code (1999);
• The Customs Law (2001);
• The Competition Law (2004);
• The Ordinance on Handling the Violation of Administrative Regulations (2005).
• The Intellectual Property Law (enacted in 2005, to be effective on 1 July 2006).

1.4 Source of international treaties for Vietnam obligations on IPR enforcement

• The Paris Convention for the Protection of Industrial Property (since 1949);
• The Berne Convention for the Protection of Literary and Artistic Works (since 2005);
• The Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (since 2005);
• The Bilateral Intellectual Property Agreement between Vietnam and Switzerland (since 1999);
• The Bilateral Trade Agreement between Vietnam and the United States of America (since 2000).

2.   CIVIL IPR ENFORCEMENT
2.1.   Competent Courts
2.1.1   First Instance 

• The People’s Courts at the district level (including the Civil Courts);
• The People’s Courts at the provincial level (including the Civil Courts and the Economic Courts).

2.1.2   Appeal

• The People’s Courts at the provincial level (including the Civil Courts and the Economic Courts);
• The Supreme People’s Court (including the Civil Court and the Economic Court).

2.2  Remedies

The following civil remedies may be imposed on an IPR infringer:

• Forced to desist from an act of infringement;
• Forced to make a public rectification or apology;
• Forced to perform a prescribed civil obligation (e.g., payment of a remuneration);
• Forced to remove the signs of infringement from infringing goods to be circulated for non-commercial purposes;
• Forced to destroy counterfeiting or pirate goods and the intruments used to produce such goods;
• Forced to compensate for infringement damages.

2.3  Execution of Court Decisions
2.3.1.  Local Court Decisions

The execution of the civil court decisions is supervised by the system of the civil court decision executors.

The organization of the civil court decision executors consists of:

• the Civil Court Decision Executing Team (belonging to the Legal Affairs Division of the District People’s Committee);
• the Civil Court Decision Executing Division (belonging to the Justice Department of the Provincial People’s Committee);
• the Civil Court Decision Executing Bureau (belonging to the Ministry of Justice).

2.3.2.   Overseas Court Decisions

• An overseas civil court decision should be first recognized by the appropriate local court to be effective and executable in Vietnam.
• The system of the civil court decision executors is exploited to supervise the execution of the civil overseas court decisions.

3.  CRIMINAL IPR ENFORCEMENT
3.1  Police Authorities

• The Economic Police Team at the district level (belonging to the District Police Unit);
• The Economic Police Division at the provincial level (belonging to the Provincial Police Department);
• The Economic Police Bureau (belonging to the Ministry of the Interior).

3.2  Prosecutors

• The People’s Prosecuting Institutes at the district level;
• The People’s Prosecuting Institues at the provincial level;
• The Supreme People’s Prosecuting Institute.

3.3  Competent Courts

• The People’s Courts at the district level (including the Criminal Courts);
• The People’s Courts at the provincial level (including the Criminal Courts).
• The Supreme People’s Court (including the Criminal Court).

3.4  Remedies

• Warning;
• Monetary fine (the maximum is of 200 million VND);
• Non-detained re-education;
• Imprisonment;
• Prohibition from holding an official position or conducting a business within a certain period.

4.   BORDER CONTROL
4.1    Registration procedure

An IPR holder is entitled to request the customs authorities to register his IPR for the ex officio controlling measures taken place by the customs officers at the borders.
An IPR registration placed with a customs unit shall be valid within:

• one year for controlling the counterfeits (renewable for one more year);
• three months for controlling the other types of infringing goods (renewable for a more period of 2 months).

Upon the request recorded in the IPR registration, the customs officers are in charge of keeping watch for any counterfeits or any suspected infringing goods moving through one or certain customs units under the jurisdiction of the relevant customs office, where the IPR registration is lodged with.

4.2  Registration Authority

The customs offices having authority to receive a registration request from an IPR holder include:

• theCustoms Branches;
• the Customs Bureaus;
• the General Department of Customs.

4.3  Border control measures

• Inspection and supervision for the imports or the exports being suspected of the IPR infringing goods;
• Suspension of customs procedures upon the request of the IPR holder within 10 working days (a security equivent to 20% of the infringing goods value or not less than 20 million VND is required). The duration of suspension may be extended, but not exceeding 20 working days in the total, where the justifiable reasons and another security are provided by the right holder.

4.4 Remedies

• The administrative remedies are generally applicable to the counterfeiting goods detected at the borders;
• The compulsory re-exportation is applicable to the conterfeiting goods where such goods are eliminated from the infringement.

5.  ADMINISTRATIVE IPR ENFORCEMENT
5.1   Competent authorities

• The People’s Committees at the district and the provincial level;
• The Specialized Inspectorates on Science and Technology (under the supervision of the Ministry of Science and Technology);
• The Specialized Inspectorates on Culture and Information (under the supervision of the Ministry of Culture and Information);
• The Market Control Forces (under the supervision of the Ministry of Trade);
• The Economic Polices (under the supervision of the Ministry of Interior).

5.2  Remedies

• Warning;
• Monetary fine (the maximum is of 100 milion VND under the current regulation; 5 times of the infringing goods value under the IP Law 2005)
• Revocation of the business permission;
• Detainment and confiscation of the meterials and instruments being used for performing the infringement;
• Removement of signs of infringement and delivery for non-commercial purposes;
• Destruction of the infringing goods whose exploitation may be harmful to human-beings, animals or plants;

6.  COMMENTS

The Intellectual Property Law that codified the current regulations on IPR enforcement is scheduled to enter into force on 1 July 2006. Certain governmental regulations for implementing this law are going to be issued in the coming time. These regulations are preparing with the intension of making the IPR enforcement system fully consistent with requirements of the TRIPs Agreement and other international treaties on IPRs to which Vietnam is party.