Identifying Acts of Infringement of Intellectual Property Rights

In the digital age and fierce business competition, intellectual property (IP) is a strategic asset yielding millions, even billions of dollars in profits for major corporations. Landmark disputes, such as Apple v. Samsung over smartphone design and Google v. Oracle concerning Java code, have shaken the tech world, affirming that intellectual property is the vital “business code” for enterprises in the race for market dominance. Consequently, acts of intellectual property infringement consistently pose a complex challenge for IP owners and legal authorities in Vietnam, as malicious actors seek to illicitly gain economic benefits from IP assets through increasingly sophisticated methods.

Therefore, raising awareness and proactively protecting one’s intellectual property rights has become more critical than ever. Join Inter Justice Law Firm as we explore in detail the acts of intellectual property infringement to enable individuals and businesses to accurately identify and proactively safeguard their assets and legitimate rights.

What Constitutes Infringement of Intellectual Property Rights?

Acts of intellectual property infringement are often carried out by perpetrators using intricate methods and schemes. Article 5 of Decree No. 105/2006/ND-CP stipulates that an act is considered an intellectual property infringement as prescribed in Articles 28, 35, 126, 127, 129, and 188 of the Law on Intellectual Property, when the following conditions are met:

• The object under consideration falls within the scope of objects currently protected by intellectual property rights.
• There is an infringing element in the object under consideration.
• The person committing the act under consideration is not the intellectual property rights holder and is not a person permitted by law or a competent authority as prescribed in Articles 25, 26, 32, 33, Clauses 2 and 3 of Article 125, Articles 133, 134, Clause 2 of Article 137, and Articles 145, 190, and 195 of the Law on Intellectual Property.
• The act under consideration occurs in Vietnam.

Thus, determining whether an act constitutes intellectual property infringement is based on whether the object violates the aforementioned elements.

Acts of Intellectual Property Infringement

Copyright Infringement

Acts of copyright infringement often occur in various forms. According to Article 28 of the Law on Intellectual Property 2005, infringing acts include:

• Usurpation of authorship: An organization or individual unauthorizedly publishes or distributes a work without the author’s consent.
• Passing off: Claiming authorship of a work that one did not actually create.
• Unauthorized reproduction: Illegally copying works without the author’s permission.
• Distortion of a work: Modifying or excerpting a work in a manner that prejudices the author’s honor and reputation.

Industrial Property Infringement

According to Article 126 of the Law on Intellectual Property 2005, acts of industrial property rights infringement may include:

• Unauthorized exploitation of a patent: An organization or individual uses a protected invention without the patent holder’s consent.
• Use of a substantially identical industrial design: Using an industrial design that is not significantly different from a design protected by a patent.

Infringement of Trade Secrets

According to Article 127 of the Law on Intellectual Property 2005, acts of trade secret misappropriation typically occur when:

• Unauthorized access to confidential information: Obtaining confidential information through illegal means.
• Disclosure or use of confidential information: Disclosing or using confidential information without the owner’s permission.

Trademark Infringement

Acts of intellectual property infringement related to trademarks are stipulated in Article 129 of the Law on Intellectual Property 2005, including:

• Use of an identical trademark: Using a sign identical to a protected trademark for similar goods or services.
• Creating confusion: Causing confusion about the origin of goods or services through the use of a similar sign.

Infringement of Plant Variety Rights

According to Article 188 of the Law on Intellectual Property 2005, acts of intellectual property infringement concerning plant varieties may occur when:

• Exploitation of a protected plant variety: Using a plant variety protected by a certificate of protection without permission.

Steps to Handle Intellectual Property Infringement

To address acts of intellectual property infringement, IP owners need to take the following steps:

Step 1: Establish Ownership and Prepare Documentation

• Certificate of registration: Original or certified copy of IP registration.

• Licensing agreements: Valid license contracts registered with the IP Office of Vietnam.

• Evidence of infringement: At least three infringing product samples or visual documentation.

• Infringer’s information: Name and address of the business or individual infringer.

• Power of attorney: If represented by a legal firm or agent.

Step 2: Verify and Collect Evidence

• Verify the Infringing Party: Gather information about the infringing individual or organization.
• Verify Damages: Assess the extent of damages caused by the infringing act.
• Check Intellectual Property Registration: Ensure the infringing party has not registered a similar object.

Step 3: Proceed with Handling the Infringement

Possible remedies include:

• Issuing a Cease and Desist Letter: Issuing an official warning letter regarding the infringement.
• Requesting Action from Competent Authorities: Drafting and submitting a request for handling the infringement to the competent authority.
• Initiating Civil Litigation: Filing a lawsuit at the provincial-level People’s Court requesting cessation of the infringing act, public apology, and compensation for damages.

The time and costs involved in handling acts of intellectual property infringement depend on the nature and complexity of the case and the measures applied. To enhance effectiveness in the infringement handling process, businesses and individuals should seek advice from experts or professional legal service organizations.