INTELLECTUAL PROPERTY PRACTICE

INTELLECTUAL PROPERTY PRACTICE

Intellectual property is one of the legal fields that plays an important role in the legal systems of countries in general and Vietnam in particular. In Vietnam, intellectual property is a relatively new field.

Let us join CELIGAL in reviewing several key provisions of the current law on intellectual property.

Grounds for Establishing Intellectual Property Rights

Under the law, objects of intellectual property rights include copyright, related rights, industrial property rights, and rights to plant varieties.

Pursuant to Article 3 of the Law on Intellectual Property 2005, as amended and supplemented in 2009 and 2019, these objects are specified as follows:

• Objects of copyright include literary, scientific, and artistic works;
• Objects of related rights include performances, sound recordings, video recordings, broadcasting programs, satellite signals carrying encrypted programs;
• Objects of industrial property rights include inventions, industrial designs, layout-designs of semiconductor integrated circuits, trade secrets, trademarks, trade names, and geographical indications;
• Objects of rights to plant varieties include propagating materials and harvested materials.

Each object of intellectual property rights has different grounds for the establishment and protection of rights. Specifically, pursuant to Article 6 of the Law on Intellectual Property 2005, as amended and supplemented in 2009 and 2019:

• First, copyright arises from the moment a work is created and expressed in a certain material form. Copyright protection does not depend on the content, quality, form, means, language, publication status, or registration status of the work.
• Second, related rights arise when the objects of related rights are fixed or performed, provided that such fixation or performance does not prejudice copyright.
• Third, industrial property rights over inventions, industrial designs, layout-designs, trademarks, and geographical indications are established based on the granting of a protection title by a competent state authority through registration procedures or recognition of international registration under treaties to which Vietnam is a member.

Industrial property rights over well-known trademarks are established based on use.

Industrial property rights over trade names are established based on lawful use of such trade names.

Industrial property rights over trade secrets are established based on lawful acquisition and the maintenance of confidentiality of such trade secrets.

Rights against unfair competition are established based on competitive activities.

• Fourth, rights to plant varieties are established based on the decision granting a Plant Variety Protection Certificate.

Principles for Determining Damages for Intellectual Property Infringement

Currently, there are numerous acts that infringe intellectual property rights, which may cause material and moral damages. Under intellectual property law:

• Material damages include losses of property, reduction in income and profits, loss of business opportunities, and reasonable costs incurred to prevent and remedy damages.
• Moral damages include damage to honor, dignity, reputation, prestige, and other damages suffered by authors or performers.

The determination of damages must be based on the actual losses suffered by the intellectual property rights holder.

CELIGAL’s Intellectual Property Advisory Services

CELIGAL provides a wide range of legal services in the field of intellectual property, including:

• Advising on and registering protection for trademarks for goods and services;
• Registering protection for industrial designs;
• Registering protection for inventions and utility solutions;
• Registering protection for geographical indications and plant varieties;
• Registering protection for trade secrets;
• Registering protection for layout-designs of integrated circuits;
• Registering protection for trade names;
• Registering copyright and related rights;
• Representing clients in resolving disputes related to intellectual property rights.