New guidelines on civil IP rights disputes
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The People’s Supreme Court, the People's Supreme Procuracy, the Ministry of Culture, Sport and Tourism, the Ministry of Science and Technology and the Ministry of Justice have adopted Inter-Ministerial Circular 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT&DL-BKH&CN-BTP, which aims to provide guidance on civil IP rights disputes.
The new circular, which was published in the Official Gazette on May 7 2008 and came into effect on May 22 2008, aims to ensure that the application of the law by the people's courts is harmonized.
The key features of the circular include the following:
- IP rights holders may request that the court order the infringers to pay for the costs incurred during the proceedings. Such expenses depend on the complexity of the case, the lawyer’s skills and qualifications and the time spent working on the case. Expenses include the lawyer’s fee, as well as his or her travel costs and accommodation. The lawyer’s fee must be agreed by the lawyer and his or her client, and be calculated in accordance with the Law on Lawyers.
- Plaintiffs and defendants in IP rights disputes must provide evidence of their rights. The plaintiff must prove that it has suffered actual damage as a result of the infringement and provide a specific basis for the determination of compensation under the Intellectual Property Law.
- Depending on the facts of each case, the court may:
- at the request of the plaintiff, issue an order enjoining the defendant from continuing the infringing acts. The court must specify which IP rights have been infringed and which infringing acts are involved. In addition, the court must specify exactly which actions must be taken by the defendant in order to comply with the court’s order.
- order that the defendant issue a public apology and rectification notice in order to restore the fame, prestige, human dignity and honour of the IP rights holder. The public apology and rectification notice must be issued in the area where the aggrieved person is domiciled, or published in a national daily newspaper or in a local newspaper (in three consecutive issues).
- order the performance of civil obligations.
- order that the defendant pay damages to the IP rights holder.
- The court may, by written request, ask for the opinion of the Copyright Office of Vietnam, the Department of Information and Culture, the National Office of Intellectual Property, the Department of Science and Technology, and the Vietnam Internet Centre.
Le Hoai Duong, LÊ & LÊ, Hanoi
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