Settlement of intellectual property disputes
Enforcement of intellectual property laws through court proceedings
TS. NGUYEN HAI AN - High-Level People's Court in Hanoi - Intellectual property rights disputes have a specific nature, owners are intangible assets, types of disputes are still relatively new, meanwhile, the legal basis for This dispute resolution has not been completed yet, so the resolution of disputes on IP rights is facing many difficulties and problems. December 10, 2020
In the increasingly advanced conditions of science and technology, acts of IPR infringement are increasing in number, sophisticated in nature, and serious in consequences. In order to restore and remedy damages to protect the legitimate rights and interests of the right holders being infringed, the law enforcement in the field of intellectual property (IP) by civil means is mainly. . Before the request of international integration, Vietnamese law also recognized civil jurisdiction for the People's Court to resolve IP disputes, including: Copyright, related rights and industrial property rights. technology transfer between individuals and organizations. The resolution of this type of dispute is based on the principles, order, and procedures generally specified in the CPC (CPC). It can be said that IPR disputes have a specific nature, the subject of ownership is intangible property, the types of disputes are still relatively new, meanwhile, the legal basis for this dispute resolution is also Not yet completed, so the resolution of disputes over IP rights is facing many difficulties and problems.
Competence to resolve civil disputes over IP rights in Court
According to the provisions of the CPC 2015, the Court's jurisdiction to resolve IP disputes according to civil proceedings is determined as follows:
+ If the IP dispute is purely a civil dispute, it falls under the jurisdiction of the District Court; + If a purely IP dispute is a civil dispute but there are foreign litigants or IP subjects, under the jurisdiction of a provincial court; + If an IP dispute between an individual or an organization has a profit purpose, it is considered a commercial dispute. joint venture and under the jurisdiction of the Court of the province .
Previously, to distinguish these two types of disputes, the law gave the sign "profit purpose". The Judiciary Council of the Supreme People's Court has clearly explained: “For disputes specified in Clause 2, Article 29 of the CPC 2004, it is not necessary that individuals or organizations have to have business registration. business but only requires individuals and organizations to have profit purposes, while the other party has no profit purposes, it is civil disputes specified in Clause 4, Article 25 of the CPC 2004 ” . According to the provisions of civil procedure law, intellectual property rights disputes, technology transfer between individuals and organizations for no profit purpose, the settlement competence of the People's Court (People's Court) grants District; disputes over IP rights, technology transfer between individuals and organizations, and both for profit purposes, fall under the jurisdiction of the People's Courts of provinces and centrally-run cities . At the same time, the Council of Judges of the TANDTC guides the determination of business and commercial disputes, it does not necessarily require individuals and organizations to have business registration, but only requires individuals and organizations to have beneficial purposes. profits from business activities, commerce; If there is only one party for profit purposes, and the other for non-profit purposes, then the dispute is a civil dispute .
In fact, most of the infringements of IP rights are for profit purposes. When accepting IPR disputes, it is difficult for the courts to clearly identify both parties for profit purposes; Based on the plaintiff's request to initiate a lawsuit, the Court may determine the defendant's profit purpose, and the plaintiff cannot determine. Therefore, when the plaintiff submits the petition to the Court requesting the settlement of an IPR dispute, the Court has determined the business and commercial case; have the Court determine the civil case; Therefore, there are many cases between district courts and provincial courts "pushing" the authority for each other; make it difficult for the petitioner.
We must admit that: “Obviously, the legal basis for the resolution of disputes over IP rights in accordance with civil proceedings is not specific and incomplete. This makes it difficult for the dispute settlement agencies and for the litigants, making the effective enforcement of IP rights in our country not high. Therefore, it is extremely necessary to complete the legal basis for the enforcement of IP rights in general and to resolve disputes over IP rights according to civil proceedings in particular ”. There is an opinion that: "Should agree to assign cases to resolve IP rights disputes, technology transfer under the jurisdiction of the district People's Court" . We find that, compared with civil disputes in general, IPR disputes are often complicated, so the capacity of District Court Judges cannot be assumed. Therefore, civil procedure law should provide guidance on uniform application of all disputes on IP rights, technology transfer between individuals and organizations for profit or non-profit purposes. are under the jurisdiction of the People's Courts at the provincial level, centrally-affiliated cities.
Handling of infringement of intellectual property rights by civil means
According to Vietnamese law, depending on the nature and severity of an IPR infringement, an infringer can be handled by civil, administrative or criminal means. The application of civil and criminal measures falls within the jurisdiction of the Court. The application of administrative measures falls under the authority of Inspectorate, Public Security, Market Management, Customs, and People's Committees at all levels . The Court applies the following civil measures to handle organizations and individuals that have IPR infringements: Forced termination of infringements; forced public apology and correction; forced performance of civil obligations; forced compensation for damage; forced destruction or forced distribution or use for non-commercial purposes of goods, raw materials, materials and means used mainly to produce or trade in goods infringing IP rights with the lawsuits do not affect the ability of IP rights holders to exploit the rights .
Compared to handling by administrative measures, handling by civil remedies in court accounts for a modest percentage and still has many limitations. The subjective cause comes from the petitioner, the organizations and individuals that are doing business in the marketplace, fearing the "scandal" to "appear in Court" to reduce their reputation; goods, products and services that infringe their IP rights reduce the competitiveness in the market and cause confusion among consumers. Due to objective reasons from procedure-conducting agencies, the time for dispute settlement often exceeds the time limit prescribed by law; making IP rights holders "discouraged" when they have to "run after" rounds of court proceedings. According to the civil procedure law, the time limit for preparation for first-instance trial for civil cases is 4 months, for business and commercial cases is 2 months from the date the Court accepts the case. ; for complicated cases or due to objective obstacles, the extension can be extended but not more than 2 months for civil cases and 1 month for commercial business cases . However, in fact, in most cases that resolve IP rights disputes in court, the resolution time is often very long, because the objects of IPR are diversified, to assess the infringement. It is necessary to wait for the conclusions of the specialized agencies to wait for the damage or to determine the damage. Therefore, instead of requiring the judiciary to protect the infringed rights and interests, IPR infringement of organizations and individuals often request the competent authority to handle administrative measures. in order to achieve results quickly and promptly. The use of civil measures to resolve IPR disputes is considered the most popular and effective IP protection mechanism in most countries in the world. We acknowledge: “Enhancing the role of resolving IP rights disputes by civil means, limiting the application of criminal or administrative measures; because IP rights are civil law institutions, belonging to civil law relations ”. To meet the contents of the TPP agreement with IP rights protected by a higher and stricter standard in order to substantially improve the enforcement of IP rights. Accordingly, the TPP stipulates that member states must be obliged to clearly define civil, administrative and criminal liabilities for infringements of IP rights; These sanctions are not only to compensate for damages to IP rights holders but also to deter and prevent future infringements. Therefore, we believe that the measure of forcing damages under civil liability should also be clearly and strictly regulated for infringements. At the same time, the order and procedures for resolving IP rights disputes also need to be revised in line with judicial practice.
Take temporary emergency measures
In the course of settlement of the case, involved parties, their legal representatives or the agency or organization initiating lawsuits in order to protect the legitimate rights and interests of others in accordance with the law shall have the right to love. to request the Court that is handling the case to apply one or more provisional urgent measures to temporarily resolve the urgent request of the involved party, protect the evidence, preserve the existing situation, and avoid causing irreparable damage or warrant enforcement. In case of an emergency situation, it is necessary to immediately protect evidence and prevent possible serious consequences, individuals, agencies or organizations may file applications to request a competent court to make a decision. apply the ICC concurrently with the filing of the lawsuit petition with that Court.
Civil procedure law states: “The person who requests the Court to apply one of the provisional urgent measures specified in Clauses 6, 7, 8, 10, 11, 15 and 16, Article 114 of this Code must submit to the Court a document of guarantee. secured with the property of a bank or other credit institution or another agency, organization or individual or deposited an amount of money, precious metals, gems or valuable papers determined by the Court but must be is equivalent to the loss or damage that could arise as a result of improper application of the interim emergency measure to protect the interests of the person subject to the interim emergency action and prevent abuse of rights request the application of provisional emergency measures from the part of the person who has the right to request ”. Forcible implementation of security measures is a compulsory measure (except for some special cases prescribed by law) for the Court to consider and issue a decision on application of IPC. According to the law, the person who requests the Court to apply one of the administrative procedures must deposit an amount of money, precious metals, gems or valuable papers determined by the Court but must be equivalent to the property obligation. the obligor is obliged to perform in order to protect the interests of the person subject to the APC and to prevent the abuse of the right to request the application of ICC from the obligee. Applying this provision, many courts understand "the sum of money, precious metals, gems or valuable papers determined by the Court but must be equivalent to the property obligation to be performed by the obligor". Yes, the Court understands that the property value that the Court forces the requester to perform the IRR must be equal to the value of the property for which the ICC is applied.
According to the Intellectual Property Law: “The person who requests for the application of temporary urgent measures is obliged to compensate for damage caused to the person subject to such measures in case that person does not infringe IP rights. To secure the performance of this obligation, the person who requests for the application of provisional measures must pay a security in one of the following forms: a) An amount equal to 20% of the value of the goods for which the measure is to be applied. temporary emergency or at least 20,000,000 VND if the value of the goods cannot be determined… ”. Thus, the provisions of applying IPC under the IP Law are not guaranteeing the rights of the person who is required to apply IPC if they do not infringe IP rights. It is also because there is no unified guidance on the application of administrative complaint between the above provisions, creating psychology for the Judge to "hesitate" to apply when the petitioner requests. Therefore, we believe that, it is necessary to apply according to CPC when the person who requests for the application of CCA has to pay the actual damage due to the improper application of CCA has not happened yet; therefore, in order to fix an amount of money, precious metals, gems or papers of value equivalent to a property obligation, the Judge or the Trial panel must anticipate and be provisional of a relative nature of damage. could actually happen.
Determining the damage caused by an infringement of IP rights
As we all know, the principle of determining damages caused by infringement of IP rights is: Physical damage includes property loss, decrease in income, profit, and loss of opportunity. business, reasonable cost to prevent, repair damage. Mental damage includes loss of honor, dignity, prestige, reputation and other damages caused to authors of literary, artistic or scientific works; Performers; author of the invention, industrial design, layout design of semiconductor integrated circuit, plant variety. The level of damage is determined on the basis of actual losses suffered by IPR holders due to IPR infringements . Based on determining the level of compensation for damages caused by IPR infringement, in case the plaintiff proves that an infringement of IP rights has caused material damage to him / her, he / she has the right to request the Court to decide the amount of compensation. on one of the following grounds: Total monetary damage plus the amount of profit the defendant has earned from conducting IPR infringement, if the plaintiff's reduced profits have not been count towards total physical damage. The licensing price of the IP object is assumed that the defendant is assigned the right to use that object by the plaintiff under the license to use the IP object to the extent corresponding to the infringement act committed. In cases where the level of compensation for material damage cannot be determined as prescribed above, the level of compensation for material damage shall be determined by the court, depending on the level of the damage, but not exceeding VND 500 million. In the event that the plaintiff proves that an IPR infringement has caused mental damage to him, he / she has the right to request a court to decide the amount of compensation within the limit of VND 5 million to VND 50 million, depending on extent of damage. In addition, it also has the right to request the Court to force organizations and individuals that commit IPR infringements to pay reasonable fees to hire a lawyer .
Reality shows, plaintiffs often do not accurately prove the actual damage occurred. The plaintiff requests the Court to determine the value of the damage on the basis of the value of the goods or services that the plaintiff thinks has infringed IP rights; while the defendant admits to having an IPR infringement request the Court to determine the value of the damage on the basis of the defendant's listing price of goods and services. If the plaintiff is unable to determine the level of compensation for material damage, the level of compensation for material damage to the Court set with a maximum of not exceeding VND 500 million is unconvincing. According to the CPC stipulates: “Costs for lawyers are amounts payable to lawyers according to the involved parties' agreements with lawyers within the scope of the law-practicing organization and the provisions of law. Costs for interpreters and lawyers shall be borne by the requester, unless the involved parties agree otherwise ”. Thus, in civil proceedings, attorneys' fees are borne by the petitioner, unless the parties agree otherwise. However, according to the IP Law, IP rights holders have the right to request the Court to force organizations and individuals that violate IP rights to pay reasonable fees to hire a lawyer . A reasonable cost to hire a lawyer is the actual cost necessary, consistent with the nature and complexity of the case; the skills, qualifications of the attorney, and the amount of time required to research the case. The cost includes the attorney's fees and the travel and accommodation expenses for the attorney. Remuneration rates agreed by lawyers with clients in legal service contracts based on the bases and methods of remuneration specified in Article 55 of the Law on Lawyers.
Compared with conventional civil disputes, only legal IP rights disputes have a provision that the party committing an IPR infringement must pay a reasonable cost of hiring a lawyer for the infringed IP right owner. In fact, most of the IPR disputes resolved in the Court, the disputing parties hire lawyers. Regarding the attorney fee, the IP right holder believes that many IP rights infringement cases are very high and there are increasingly new costs such as: Lawyers' fees for establishing licenses to provide evidence just go to the Court. The problem is, it is necessary to determine the cost of hiring a lawyer to suit the provisions of law and reality. We agree with the opinion that: “For the costs to hire a lawyer must be specific expenses for the lawyer to carry out the work, these costs must be reasonable according to the average price to complete the work. , the basis for payment is invoices and documents provided by the litigant ”. Under the TPP, in an IPR dispute, the party that has lost the judgment by the Court must pay the winning party all court fees, court fees and reasonable attorneys' fees, or any expenses. Any other fees are specified in accordance with the laws of each country. According to the current CPC as well as the Ordinance on Court fees and charges, the involved parties must bear first-instance civil court fees for their requests which are not accepted by the Court . The appellate parties shall bear appellate civil court costs, if the appellate Court upholds the first-instance judgments or rulings. In cases where the appellate courts amend the first-instance judgments or rulings being appealed against or cancel the first-instance judgments or rulings being appealed for for re-trial, the appellants who appeal shall not bear appellate civil court costs . As such, the basic principle is that anyone who cannot accept the request must bear a court fee; Those who are accepted are not subject to the legal fees. Therefore, the party that violates IP rights, in addition to having to pay the cost of hiring an attorney for the IP right holder, must also bear the prescribed court fees. Therefore, we think that it is necessary to have specific regulations on how reasonable it is to hire a lawyer for an IP right dispute.
Intellectual property assessment
Intellectual property rights disputes are one of civil disputes in general, resolved according to the order and procedures specified in the CPC. Accordingly, the Judge shall issue a decision to solicit expert examination according to the selection agreement of the involved parties or at the request of one or more of the involved parties. Expertise conclusions are an important source of evidence . However, according to the IP Law, the state agency competent to handle IP infringement has the right to solicit an IP examination when resolving the case that they are handling. IPR holders and other related organizations and individuals have the right to request an IP assessment to protect their legitimate rights and interests . However, according to the CPC about an assessor, only general provisions “An examiner is a person with necessary knowledge and experience in accordance with the provisions of the field where the subject needs to be examined” . And the Law on Intellectual Property stipulates: “IP assessment is the use of professional knowledge and expertise by organizations and individuals to evaluate and conclude on issues related to IP rights infringement cases. ".
Judicial examiners in the IP field have specific regulations on the competent authorities, the examination order and procedures, specifically: “The field of assessment of copyright and related rights is specified in Point a, Clause 2, Article 39 of the Government's Decree No. 105/2006 / ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the Intellectual Property Law regarding IP rights protection and house management IP countries are amended and supplemented in Decree No. 119/2010 / ND-CP dated December 30, 2010 of the Government amending and supplementing a number of articles of Decree No. 105/2006 / ND-CP, including majors: Examination of copyright for literary, artistic and scientific works specified in Article 14 of the Law on Intellectual Property; Assessment of related rights for related rights objects specified in Article 17 of the Law on Intellectual Property ”. The IP assessment conducted by the Institute of Intellectual Property Science and the Ministry of Science and Technology conducts industrial property (IP) assessment on the basis of the legal provisions: Article 201 of the Law on Intellectual Property; Articles from 39 to 53 of Decree No. 105/2006 / ND-CP dated September 22, 2006 detailing and guiding the implementation of a number of articles of the IP Law on IPR protection and state management of IP are amending and supplementing according to Decree 119/2010 / ND-CP dated December 30, 2010. Circular No. 01/2008 / TT-BKHCN dated February 25, 2008, amended according to Circular No. 04/2009 / TT-BKHCN dated March 27, 2009, guiding the issuance and revocation of SHCN assessor cards and papers. certification of organization eligible for IP assessment activities.
In the process of resolving the case for IPR infringements, a problem posed to the Court is the assessment of evidence through IP assessment. Although the current legal provisions on IP assessment are relatively complete, there are still some problems and problems from the actual operation of the authorities that have directly affected. to the effectiveness of legal proceedings. Intellectual property assessment is a content of judicial assessment, performed by judicial examiners at the request of the proceeding agency, who conducts proceedings for the resolution of cases. For IP rights is an area with many different subjects such as: IP rights, copyright (QTG) and rights related to financial management, rights to plant varieties. However, when there are acts of infringement to these objects, when requested to solicit expertise to collect evidence; Due to the limited number of assessors, it is impossible to meet the requirements of reality affecting the effectiveness of the proceedings. In addition, many objects of IP rights have high specificity such as objects of the World Bank for literary works, art, software programs, new varieties, similar trademarks. confusing consumers requires a team of assessors in addition to expertise and in-depth knowledge of the subject of assessment; At the same time, there must be equipment and means to serve the assessment process, but currently in IP assessment, if there is a lack of equipment, machinery and facilities for this work, it will be limited. great to the assessment results of the assessors. Currently, the Institute of Intellectual Property Science is an organization eligible to assess IP rights; 4 people are eligible for IP assessment; two of them operate independently, while 2 work under the Institute of Intellectual Property Science.
In fact, when an IP right holder suspects an IPR infringement, they have conducted a solicitation of assessment at the Institute of Intellectual Property Science to determine whether or not the infringement is committed. After the Court accepted the case, in the process of resolving the case, the defendant did not accept the results presented by the plaintiff, had the assessment conclusion of the Institute of Intellectual Property Science and the defendant requested the Court to solicit reevaluate at another IP assessment organization. Meanwhile, the: “Additional assessment is done in case the assessment conclusion is incomplete or unclear about the contents that need to be assessed or new circumstances have arisen that need to be clarified. Requests for additional expertise and the performance of additional expertise must comply with the provisions for first expertise; Re-assessment is done in case the mediator or request for assessment disagrees with the assessment result or there is a contradiction between the assessment conclusions on the same subject matter to be assessed. The re-assessment can be done by an assessment body or assessor that has been previously assessed or by another assessment organization or assessor at the request of the person who solicits or requests assessment; In case there is a conflict between the first assessment conclusion and the re-assessment conclusion on the same subject matter to be assessed, it is possible to continue to request and solicit another organization or assessor to perform the re-assessment. ".
For disputes on establishing IP rights, disputes requesting cancellation of validity of IP object protection titles, disputes on licensing agreements, the courts always have to rely on the opinions of specialized agencies. subject and assessment conclusions of the IP object assessment agency as a basis for trial. Although, in many cases the Tribunal may base its judgment on the evidence the parties provide to its judgment. Because of "Dependency and lack of understanding, the Court always pushes this' ball" to the NOIP or the Copyright Office ". In order to wait for opinions of specialized agencies and expert examination conclusions, the Court must issue a decision to suspend the resolution of the case. The time of suspending the settlement of the case may sometimes last for one year; In many cases, the opinions of specialized agencies and the assessment bodies' assessment conclusions are inconsistent, making it difficult for the Court to assess IPR infringements.
Therefore, we believe that, in addition to developing a team of assessors in each IP subject; completing the legal provisions on re-assessment order, procedures and conditions; then, the Court should have a mechanism to actively coordinate with specialized agencies in soliciting expert examination and consultation most effectively; The judge directly independently evaluates the evidence and makes a judgment, without expecting and relying on the expert's conclusions.
The Court's capacity in resolving IP disputes
As we all know, with the diversity of IP objects, the complexity of all kinds of IP rights disputes, but the Courts at all levels do not have judges with special training in IP, the judges are assigned. Dispute resolution in this area Refund due to randomness; In the same IP rights disputes, based on the purpose of the disputing parties is profitable or unprofitable to distinguish civil disputes (the Civil Court resolves) and business disputes - commercial (Court Kinh settlement). At the same time, IP rights disputes resolved at courts of all levels are still very few compared to other types of common civil disputes; leading to "collision" for infrequent IP disputes. The mentality of judges directly assigned to resolve IP rights disputes is very apprehensive. Due to lack of professional expertise, the judgments section of the Judges' judgments often does not state solid grounds for assessing IPR infringements; decisions of the Courts of all levels to settle in the same case are sometimes contradictory. In order to improve the capacity of courts and judges to resolve IP rights disputes, there are many solutions that have been raised, such as: there must be a special judge to adjudicate IP rights disputes, to be successful. set up a specialized Court to adjudicate IP rights, to regularly train and improve professional knowledge on IP for court staff and judges; must regularly review the trial work, learn from experience in adjudicating IP rights disputes; organized more seminars and seminars domestically and internationally for Court officials and judges to attend. We fully agree with the above solutions; However, at present, the quality of IP rights disputes resolved in courts is small compared to civil disputes, so building a team of specialized IP judges or establishing a specialized court on IP is not. is feasible. Therefore, first of all, the Court needs to regularly improve the expertise of judges in the IP field and uphold the judges' responsibility for independent judgment.
Intellectual property develops along with the development of science, technique and technology of the knowledge economy. To meet the requirements of the international economic integration process, contribute to creating a healthy competitive and business environment, creating attractiveness, attracting foreign investment capital, contributing to protecting consumer interests and more importantly, protecting the legitimate rights and interests of intellectual property owners. Along with the development, the law to protect intellectual property rights has to be improved. The development orientation of the judiciary is to improve the capacity and effectiveness of IPR enforcement; The development orientation of the Court system is to improve the efficiency of dispute resolution in the IP field./.
 Clause 4 Article 26 and Clause 2 Article 30 CPC 2015.
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