New decree will set rules for damages calculations

The Vietnamese Ministry of Justice is drafting a decree that will make it easier for courts to calculate damages for trademark infringement.

Although Vietnam's intellectual property laws provide for damages to compensate trademark owners when their rights are infringed, the method of calculating damages has been left to the courts to decide. The common method used by the courts has been to assess lost sales and injury to reputation; however, both of these are difficult to prove and quantify, especially when neither the plaintiff nor the defendant has any sales history.

Thus, the Ministry of Justice has taken it upon itself to draft rules that will make the calculation of damages easier, consistent and more predictable, for example, by addressing plaintiff's lost sales, defendant's profits, reasonable royalties and statutory damages. The drafting team and outside experts are also discussing additional remedies, such as attorneys' fees and punitive damages where trademark infringement is malicious, deliberate or wilful.

The first draft of the decree is expected to be finished by mid-May, at which time it will be sent to the National Office of Industrial Property and other relevant bodies for consideration and comment.

Le Hoai Duong, Le & Le, Hanoi