INTELLECTUAL PROPERTY INFRINGEMENT

1. COPYRIGHTS INFRINGEMENT

1. Seizing copyrights of a literary, artistic, scientific work;
2. Assuming the author’s name of a work;
3. Publishing, disseminating a work without its author’s permission;
4. Publishing, disseminating a co-author works without permission of other co-author(s);
5. Modifying, mutilating or distorting a work in any forms, which is prejudicial to the author’s honor and prestige;
6. Copying a work without permission of the author or the copyrights owner, except for the cases stipulated in Articles 25.1.a and 25.1.dd of this Law;
7. Make derivative works without permission of the author or the copyrights owner of the work used to make such derivative work, except forms of use of works stipulated in Article 25.1.i of this Law;
8. Exploiting a work of without permission of copyrights owner, without paying royalties and remuneration and other material benefits under the law; except forms of use of works stipulated in Article 25.1 of this Law;
9. Renting a work without any payment of royalties, remuneration and other material benefits to its author and copyrights owner;
10. Photocopying, producing, disseminating, publishing, displaying or communicating a work to the public by broadcasting network or digital devices without permission of the copyrights owner;
11. Publishing a work without permission of the copyrights owner;
12. Intentionally canceling or invalidating technical methods applied by the copyrights owner to protect copyrights of his or her work;
13. Intentionally erasing or amending electronic information on copyrights management of a work;
14. Producing, assembling, altering, distributing, importing, exporting, selling or leasing an item of equipment when knowing or having basis to know that such equipment is used for invalidating the technical measures taken by the copyright owner to protect the copyright to his/her works.
15. Making and selling a work of which the author’s signature is being forged;
16. Exporting, importing, disseminating copies of a work without permission of the copyrights owner.


2. RELATED RIGHTS INFRINGEMENT

1. Abrogating the rights of performers, producers of phonograms, broadcasting organizations;
2. Assuming the names of performers, producers of phonograms, broadcasting organizations;
3. Publishing, producing and communicating to the public fixed performances, phonograms, broadcasts without the permission of performers, producers of phonograms, broadcasting organizations;
4. Modifying, mutilating or distorting performances in any form which prejudice to honor and prestige of performers;
5. Reproducing, extracting fixed performances, phonograms, broadcasts without the permission of performers, producers of phonograms, broadcasting organizations;
6. Removing or altering any right management information in electronic format without permission of the related right owner
7. Intentionally canceling or invalidating technical methods applied by the related right owner to protect his or her related rights.
8. Distributing, importing for distribution, broadcasting, communicating to the public performances, fixed copies of performances or phonograms when knowing or having basis to know that the right management information in electronic format has been removed or altered without permission of the related right owner;
9.  Producing, assembling, transforming, distributing, importing, exporting, selling or renting an item of an equipment when knowing or having basis to know that such equipment is used for illegal decoding a satellite signal carrying encrypted program;
10. Intentional recording or disseminating continuously of a satellite signal carrying encrypted program if the signal is decoded without permission of the lawful distributors.


3. ACTS OF INFRINGEMENT OF RIGHTS TO INVENTIONS, INDUSTRIAL DESIGNS AND LAYOUT DESIGNS
The following acts shall be regarded as an infringement of the rights of the owner of an invention, industrial design or layout design:
1.  Using the protected invention, using the protected industrial design or another industrial design insufficiently different from it, or using the protected layout design or any original part of it, within the validity term of the Protection Title without permission of the owner;
2.  Using the invention, industrial design or layout design without paying compensation in accordance with the provisions on provisional right as provided for in Article 131 of this Law.

4. ACTS OF INFRINGING THE RIGHTS TO BUSINESS SECRETS
1. The following acts shall be considered as an infringement of the rights to a business secret:

a)  Accessing or acquiring information embodied in a business secret by taking acts against secret-keeping measures taken by the lawful controller of the business secret;
b)  Disclosing or using information embodied in a business secret without permission of the owner the business secret;
c)  Breaching secret-keeping contracts or deceiving, inducing, bribing, forcing, seducing or abusing the trust of persons in charge of secret-keeping in order to access, acquire or disclose a business secret;
d)  Accessing to or acquiring information embodied in a business secret, that is submitted by another person under procedures for granting a license of business or marketing in respect of a product, by actions against secret-keeping measures taken by competent agencies;
đ)  Using or disclosing business secret, while knowing or being obliged to know that it has been acquired by another person engaged in one of the acts referred to in subparagraphs a, b, c and d of this paragraph;
e)  Failure to perform the obligation of secret keeping provided for in Article 128 of this Law.

2. The lawful controller of a business secret referred to in paragraph 1 of this Article shall include the owner, his or her lawful licensee or manager of the business secret.

5. ACTS OF INFRINGING THE RIGHTS TO MARKS, TRADE NAMES AND GEOGRAPHICAL INDICATIONS
1.  The following acts if performed without permission of the mark owner shall be considered as infringement of the rights to the mark:

a. Using signs identical with a protected mark for goods or services identical with those in the list registered with the mark;
b. Using signs identical with a protected mark for goods or services similar or related to those in the list registered with the mark if such use is likely to cause confusion as to the origin of the goods or services;
c. Using signs similar to a protected mark for the goods or services identical with, similar or related to those in the list registered with the mark, if such use is likely to cause confusion as to the origin of the goods or services;
d. Using signs identical with or similar to a well-known mark, or signs in the form of translation or transliteration of a well-known mark, for any goods or services, including those dissimilar or unrelated to the good or service having the well-known mark, if such use is likely to cause confusion as to the origin of the goods or services or wrong impression as to the relationship between the user of such signs and the well-known mark owner.

2.  Any act of using commercial indications identical with or similar to another person’s trade name having been used before for the same or similar goods or services that causes confusion as to business entities, business premises or business activities under the trade name shall be considered as infringement of the rights to the trade name.
3.  The following acts shall be considered as infringement of the rights to a protected geographical indication:

a. Using the protected geographical indication for products that do not satisfy the peculiar characteristics and quality of the product having the geographical indication although such products originate from a geographical area bearing such geographical indication;
b. Using the protected geographical indication for products similar to the product having the geographical indication for the purposes of taking advantage of the reputation and goodwill;
c. Using a sign identical with or similar to the protected geographical indication for products not originating from the geographical area bearing the geographical indication and therefore causing consumers mislead about the products originating from that geographical area;
d. Using a protected geographical indications of wines or spirits for the wines or spirits that are not originating in the territories corresponding to the geographical indication, even where the true origin of goods is indicated or the geographical indication is used in translation or transcription or accompanied by such words as “kind”, “type”, “style”, “imitation” or the like.


6. ACTS OF UNFAIR COMPETITION
1.  The following acts shall be acts of unfair competition:

a) Using commercial indications that cause confusion as to business entities or business activities or commercial source of goods or services;
b) Using commercial indications that cause confusion as to the origin, production method, feature, quality, quantity or other characteristics of goods or services; or as to the conditions for provision of goods and services;
c) Using a mark being protected in a country which is party to an international treaty to which the Socialist Republic of Vietnam is a party under which provisions, the representative or agent of the mark owner is prohibited from using the mark, if the user was a representative or agent of the mark owner and such use was neither consented to by the mark owner nor justified;
d) Registering or possessing the right to use or using a domain name identical with or confusingly similar to a protected trade name or mark of another person, or a geographical indication that one does not have the right to use, for the purpose of possessing the domain name, benefiting from or prejudicing reputation and goodwill of the respective mark, trade name and geographical indication.

2.   The commercial indications referred to in paragraph 1 of this Article mean signs, information serving as guidelines to trade of goods and services, including marks, trade names, business symbols, business slogans, geographical indications, package designs, label designs, etc.
3. Use of commercial indications referred to in paragraph 1 of this Article shall include any act of affixing such commercial indications on goods, packaging, service means, business transaction documents and advertising means; selling, advertising for sale, storing for sale and importing goods affixed with such commercial indications.

7. RIGHT TO PROTECTION BY ONESELF
1. Intellectual property right holders shall have the right to apply the following measures to protect their intellectual property rights:

a) Taking technological measures to prevent infringement of intellectual property rights;
b) Requesting organizations, individuals that have committed acts of infringement of intellectual property rights to terminate the infringing acts, apologize, publicly rectify and compensate damages;  
c) Requesting the competent state agencies to handle acts of infringement of intellectual property rights in accordance with provisions of this Law and other related laws and regulations;
d) Initiating a lawsuit at a competent court or an arbitrator to protect their legitimate rights and interests;

2. Organizations and individuals that suffer from damage caused by acts of infringement of intellectual property rights or discover acts of infringement of intellectual property rights that cause damage to consumers or the society shall have the right to request State competent agencies to handle such acts of infringement in accordance with the provisions of this Law and other related laws and regulations.
3. Organizations and individuals that suffer from damage or are likely to suffer from damage caused by acts of unfair competition shall have the right to request State competent agencies to impose civil remedies provided for in Article 202 of this Law and administrative remedies provided for in the laws on competition.

8. REMEDIES AGAINST ACTS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
1. Organizations and individuals that have committed acts of infringement of other’s intellectual property rights are liable to civil, administrative or criminal remedies, depending on nature and extent of such infringement.
2. In appropriate cases, State competent agencies shall have the right to apply provisional measures, intellectual-property-related control measures with regard to imports and exports and preventive measures and shall ensure that administrative penalties shall be imposed as provided for in this Law and other related laws and regulations. 

9. AUTHORITIES IN HANDLING THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS 
1.   Courts, inspectorate, market management agencies, custom offices, police agencies and the People’s Committees of all levels, within its duties and authorities, are entitled to handle acts of infringement of intellectual property rights. 
2.   The application of civil remedies and criminal remedies shall fall within the authorities of the courts. In appropriate cases, the courts are entitled to apply provisional measures in accordance with the laws and regulations.
 3. The application of administrative remedies shall fall within the authorities of inspectorate, police agencies, market management agencies, custom offices and the People’s Committee of all levels. In appropriate cases, the above-mentioned agencies are entitled to apply preventive measures and ensure that administrative penalties shall be imposed in accordance with the laws and regulations.
4.   The application of intellectual property border control measures with regard to imports and exports shall fall within the authorities of custom offices.

10. CIVIL REMEDIES
The court shall take the following civil remedies to handle organizations and individuals that have committed acts of infringement of intellectual property rights:
1. Compelling termination of the infringement of intellectual property rights;
2. Compelling public rectification and apology;
3. Compelling the performance of civil obligations;
4. Compelling compensation for damages;
5. Compelling destruction, distribution or use for non-commercial purpose in respect of goods, materials and implements the predominant use of which has been in the creation or trading of intellectual property right infringing goods, provided that such distribution and use does not affect the exploitation of rights by the intellectual property rights holder.

11. RIGHTS AND BURDEN OF PROOF OF THE LITIGANTS
1. The plaintiff and defendant in a lawsuit against infringement of intellectual property rights shall have the rights and burden of proof provided for in Article 79 of the Civil Procedures Code and this Article.
2. The plaintiff shall prove that he or she is the intellectual property right holder with one of the following evidences:

a) A valid copy of the Copyright Registration Certificate, Related Right Registration Certificate, Protection Title, or an extract from the National Registers of Copyrights and Related Rights, the National Registers of Industrial Designs, layout-designs and National Registers of Protected Plant Varieties;
b) Necessary evidence proving basis the establishment of copyrights, related rights in case of absence of a copyright registration certificate, related right registration certificate; necessary evidence proving the rights to business secrets, trade names or well-known marks;
c)  Copies of licensing contracts for using intellectual property subject matters in case the right to use is licensed under a contract.

3.   The plaintiff shall produce evidence of the infringement of intellectual property rights or acts of unfair competition.
4.   In a lawsuit against an infringement of the right to a patented invention, which is a production process, the defendant shall prove that his or her products are made by a process other than the protected process:

a)   The product made by the protected process is new;
b) The product made by the protected process is not new, but the owner of the protected process believes that the product of the defendant is made by the protected process and failed identify the process used by the defendant despite that reasonable measures have been taken.

5.   In case a party to a lawsuit against an infringement of intellectual property rights has proven that evidence relevant to substantiation of his or her claims lies in the control of the other party and therefore inaccessible, the former shall have the right to request the court to compel the later to produce such evidence.
6.   In case of a claim for damages, the plaintiff must prove his or her actual damages and specify the basis for his or her claim in accordance with Article 205 of this Law.

12. PRINCIPLES OF DETERMINATION OF DAMAGES CAUSED BY THE INFRINGEMENT OF IPR
1.   Damages caused by an infringement comprise:

a)   Physical damages comprise loss in property, decrease in income and profits, losses in business opportunities, reasonable expenses for prevention and restoration from such damages, reasonable attorney fees and other tangible losses;
b) Spiritual damages comprise loss to honor, dignity, prestige, reputation and other spiritual losses caused to the authors of literary, artistic and scientific works; to performers, authors of inventions, industrial designs, lay out designs; and breeders.

2. The level of damage shall be determined on the basis of the actual losses suffered by the intellectual property right holders due to the infringement of his or her intellectual property rights.

13. BASES FOR DETERMINATION OF DAMAGES CAUSED BY THE INFRINGEMENT OF IPR
1.   In case the plaintiff succeeds in proving that an infringement of intellectual property rights has caused physical damages to him or her, he or she shall have the right to request the court to determine the rate of compensation on one of the following bases:

a) The total physical damage determined in an amount of money plus the profits gained by the dependent as a result of infringement if reduced profits of the plaintiff have not yet been included in the total physical damage;
b) The value of the transfer of the right to use the intellectual property subject matter with the presumption that the defendant has been transferred by the plaintiff with the right to use that intellectual property subject matter under an agreement for using such intellectual property subject matter to the extent equivalent to the act of infringement committed;
c) Where it is impossible to determine the rate of compensation in accordance with subparagraphs a) and b) of this paragraph, that rate shall be fixed by the court depending on the loss level but not exceeding VND 500 million.

2.   If the plaintiff succeeds in proving that the infringement of intellectual property rights has caused spiritual damage to him or her, he or she shall have the right to request the court to determine the rate of compensation ranging from VND 5 million to VND 50 million, depending on the level of damage.
3.   In addition to the damages referred to in clauses 1 and 2 of this Article, an IPR holder may request the court to compel the infringer to pay reasonable costs of hiring attorneys.

14. RIGHT TO REQUEST THE COURT TO APPLY PROVISIONAL MEASURES
1.   Upon or after 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 threat of irreparable damage to the intellectual property right holder;
b) There is a threat of dispersal or destruction of goods suspected of infringing upon intellectual property rights and relevant evidence if they are not protected in time.

2.  The court shall decide to apply provisional measures at the request of the IPR holder as set out in clause 1 of this Article before listening to the opinion of the party liable for such provisional measure.

15. PROVISIONAL MEASURES
1.    The following provisional measures are shall applicable to goods suspected of infringing upon intellectual property rights or to the materials, raw materials or implements for producing or trading such goods:

a. Seizure;
b. Distraint;
c. Sealing, prohibition of changing status or displacing;
d. Prohibition of transferring ownership;

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

16. ACTS OF IPR INFRINGEMENTS LIABLE FOR ADMINISTRATIVE REMEDIES
1.  The following acts of IPR infringements shall be subject to the administrative remedies:

a)   Committing an act of infringement of intellectual property rights, which causes loss to consumers or the society;
b) Not terminating an act of infringement of intellectual property rights, even if a written notice has been served by the intellectual property right holder;
c)   Producing, importing, transporting, and trading in intellectual property counterfeit goods referred to in Article 213 of this Law or assigning others to do so;
d) Producing, importing and trading in articles bearing a mark or a geographical indication that is identical with or confusingly similar to a protected mark or a protected geographical indication or assigning others to do so;

2.   The Government shall make specific provisions for acts of IPR infringements to be liable for administrative remedies, form and level of remedies and procedures for imposing such administrative remedies.
3.   Organizations and individuals that have committed acts of unfair competition shall be liable to the administrative remedies provided for in the competition legislation.

17. ACTS OF IPR INFRINGEMENTS LIABLE FOR CRIMINAL REMEDIES
Individuals who have committed acts of infringement of intellectual property rights having factors that constitute a crime shall be liable to the criminal liabilities in accordance with the criminal laws and regulations.

18. INTELLECTUAL PROPERTY COUNTERFEIT GOODS
1.   Intellectual property counterfeit goods referred to in this Law include counterfeit mark goods or counterfeit geographical indication goods (hereinafter referred to as counterfeit mark goods) referred to in paragraph 2 of this Article and pirated goods referred to in paragraph 3 of this Article.
2.   Counterfeit mark goods are goods or their packaging bearing a mark or a sign which is identical with or substantially indistinguishable from a mark or geographical indication which is protected for such goods without consent of the owner of such mark or the management organization of such geographical indication respectively.
3.   Pirated goods are copies made without the consent of the copyrights holder or the related rights holder.

19. ADMINISTRATIVE PENALTIES AND REMEDIES
1.   Organizations and individuals that have committed acts of IPR infringement referred to in Article 211.1 of this Law shall be compelled to terminate the infringement and subject to one of the following main remedies:

a)   Warning;
b) Monetary fine.

2. Depending on nature and level of the infringement, the IPR infringing organizations and individuals are liable to the following complementary remedies:

a)   Confiscation of intellectual property counterfeit goods, materials, raw materials and implements mainly used for manufacturing or trading such intellectual property counterfeit goods;
 b) Suspension of relevant business activities for a definite term.

3.   In addition to the remedies referred to in paragraphs 1 and 2 of this Article, organizations and individuals that have committed IPR infringing acts are liable to the following restoration remedies:

a)   Compelling destruction, distribution or use of the intellectual property counterfeit goods for non-commercial purposes and materials, raw materials and implements mainly used for manufacturing or trading such intellectual property counterfeit goods provided that such distribution and use does not affect the exploitation of rights by intellectual property right holder;
b) Compelling delivery of the transiting goods out of the territory of Vietnam or re-export of the intellectual property counterfeit goods, implements and materials that are imported mainly for manufacturing or trading such intellectual property counterfeit goods, after having removed infringing elements.

4.   The monetary fine rates referred to in subparagraph b of paragraph 1 of this Article shall be at least equal to the value of the discovered infringing goods but must not exceed five times of that value.
      The Government shall make detailed provisions for the method of determination of the value of infringing goods.

20. APPLICATION OF PREVENTATIVE MEASURES
1.   In the following cases, organizations and individuals shall have the right to request the competent agency to apply administrative remedies and ensure that administrative penalties shall be imposed in accordance with clause 2 of this Article:

a)   Acts of infringement of intellectual property rights may cause serious damage to consumers or the society;
b) There is a threat of the infringing means being dispersed or the infringer evading his or her liabilities;
c)   In order to guarantee the implementation of administrative remedies.

2.   Administrative preventative measures applicable under administrative procedures to the infringement of intellectual property rights comprise the followings:

a) Temporary hold of related individuals;
b) Temporary detention of the goods, means and implements used for such infringement;
c) Search of related individuals;
d) Search of the place where infringing goods means and implements are stored;
đ) Other administrative preventative measures in accordance with the laws and regulations.