How To Protect Trademark in Vietnam?

Trademark protection in Vietnam is initially obtained through trademark registration.

Trademark opposition could be filed to prevent a pending application for a mark from being granted application.  Litigation is the final measure to handle dispute during trademark protection in Vietnam.

Trademark is a sign that help distinguish the goods or services of one enterprise from those of others. Together with industrial design and patent, trademark of goods and services plays an extremely important role for the growth of the enterprise. Trademark establishes a link between enterprise and customer.  A strong trademark will attract customers to use goods or services. When trademark is popular and economic benefits achieved through sale of goods or provision of services coupled with trademark is large, the violation of trademark is inevitable.

The annual reports of the Vietnam National Office of Intellectual Property (NOIP) prove that trademark violation in Vietnam is the most popular, among other industrial property rights.  According to the preliminary annual report in 2011, and 2012, there has been more than 1,000 cases of trademark violations each year.  Report of 2013 and after shows more than 2,000 trademark infringements were handled with the total fines of trademark violators of around USD 1 million per year.  Having said that, it is important for trademark owner to register trademarks in Vietnam for better protection.  This is also suggested for even well-known trademarks.

For registration, trademark owner has two options: either directly register trademark in Vietnam by filling an application for registration with the Vietnam NOIP, or seek the protection in Vietnam through Madrid’s system.  For the first option, the trademark owner needs to prepare, file for registration, and pay fee as the requirement of Vietnam Intellectual Property law.  In case trademark needs to be protected in a number of nations, including Vietnam, trademark owner may register trademark through Madrid’s system.

Where the violation of trademark occurs, trademark owner needs to judge the level of infringement, level of damage to choose suitable resolutions.  Initially, the trademark owner may protect by requiring to the trademark violator to terminate the infringing acts, apologize, and rectify. In case of being damaged, trademark owners have rights to claim compensation.  If failing to reach result, trademark owner may use settlement mechanism through negotiation or mediation or could request the competent state agencies to handle acts of infringement through i.e. filling a denunciation application and submitting to the Vietnam NOIP.  Litigation might be required to handle acts of infringement.  Generally, the proceeding of civil litigation is more complex than the arbitration proceeding. In cases the trademark owner needs a decision from court in order to end trademark infringement, civil litigation is top priority. In the remaining cases, arbitration is a better choice with advantages of cheaper cost, shorter settling time, and more flexible.

Learn more about our ANT Lawyers Intellectual Property practice, its experience, and team members here.

Please contact our trademark attorneys in Vietnam for advice via email ant@antlawyers.vn or call us at +84 912 817 823.

Let ANT Lawyers help your business in Vietnam.

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Signals of Copyright Infringement

Authors might find their copyright are infringed in Vietnam and would need legal services from a local legal and intellectual property firm to advise.

A literary, artistic or scientific work is an achievement from hard intellectual labor of the author. However, after publishing works, many authors find others use, print or trade their works without their prior written permission. The copyright infringement action can cause many material damages for authors when their intellectual labor achievements are used by others without prior asking and annual royalties. To ensure the rights of authors, the law strictly forbids from infringing and stipulates particularly as follows:

Appropriating copyright in a literary, artistic or scientific work.

Impersonating an author.

Publishing or distributing a work without permission from the author.

Publishing or distributing a work of joint authors without permission from the co-authors.

Modifying, editing or distorting a work in any way which prejudices the honour and reputation of the author.

Copying a work without permission from the author or copyright holder, except in the cases allowed by the Law

Making a derivative work without permission from the author or copyright holder of the work used for making such derivative work, except in the case allowed by the Law.

Using a work without permission from the copyright holder and without paying royalties, remuneration or other material benefits in accordance with law, except in the cases allowed by the Law.

Leasing out a work without paying royalties, remuneration or other material benefits to the author or copyright holder.

Duplicating, producing copies of, distributing, displaying or communicating a work to the public via a communications network or digital means without permission from the copyright holder.

Publishing a work without permission from the copyright holder.

Deliberately destroying or de-activating the technical solutions applied by the copyright holder to protect copyright in his or her work.

Deliberately deleting or modifying electronic information in a work regarding management of the rights to such work.

Manufacturing, assembling, transforming, distributing, importing, exporting, selling or leasing out equipment when knowing, or having grounds to know, that such equipment may de-activate technical solutions applied by the copyright holder to protect copyright in his or her work.

Making and selling a work with a forged signature of the author of such work.

Importing, exporting or distributing copies of a work without permission from the copyright holder.

With highly professional staff and great experience in Copyright and Related right aspect in Vietnam and other countries in the world , ANT Lawyers would like to support and represent the clients in protecting copyright and related right.

Source: ANTLawyers.vn

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The Patent Cooperation Treaty (PCT) procedure

The PCT procedure includes:

Filing: you file an international application with a national or regional patent Office or WIPO, complying with the PCT formality requirements, in one language, and you pay one set of fees.

International Search: an “International Searching Authority” (ISA) (one of the world’s major patent Offices) identifies the published patent documents and technical literature (“prior art”) which may have an influence on whether your invention is patentable, and establishes a written opinion on your invention’s potential patentability.

International Publication: as soon as possible after the expiration of 18 months from the earliest filing date, the content of your international application is disclosed to the world.

Supplementary International Search (optional): a second ISA identifies, at your request, published documents which may not have been found by the first ISA which carried out the main search because of the diversity of prior art in different languages and different technical fields.

International Preliminary Examination (optional): one of the ISAs at your request, carries out an additional patentability analysis, usually on an amended version of your application.

National Phase: after the end of the PCT procedure, usually at 30 months from the earliest filing date of your initial application, from which you claim priority, you start to pursue the grant of your patents directly before the national (or regional) patent Offices of the countries in which you want to obtain them.

FILING

What is the effect of an international patent application?

In general terms, your international patent application, provided that it complies with the minimum requirements for obtaining an international filing date, has the effect of a national patent application (and certain regional patent applications) in or for all PCT Contracting States. Moreover, if you comply with certain formal requirements set out in the Treaty and Regulations, which are binding on all of the PCT Contracting States, subsequent adaptation to varying national (or regional) formal requirements (and the cost associated therewith) will not be necessary.

Who has the right to file an international patent application under the PCT?

You are entitled to file an international patent application if you are a national or resident of a PCT Contracting State. If there are several applicants named in the international application, only one of them needs to comply with this requirement.

Where can I file my international patent application?

You can file an international patent application, in most cases, with your national patent Office, or directly with WIPO if permitted by your State’s national security provisions. Both of those Offices act as PCT “receiving Offices”. If you are a national or resident of a country which is party to the ARIPO Harare Protocol, the OAPI Bangui Agreement, the Eurasian Patent Convention or the European Patent Convention, you may alternatively file your international patent application with the regional patent Office concerned, if permitted by the applicable national law.

Can I file PCT applications electronically?

In the majority of cases, applicants file PCT applications electronically. You can file PCT applications electronically with any competent receiving Offices which accepts such filings. Preparing the PCT application using the WIPO web service (ePCT-filing) or the software provided by WIPO (PCT-SAFE) helps you to prepare your applications by automatically validating the entered data and drawing your attention to incorrectly or inconsistently completed parts. Moreover, it helps you to manage your applications, for example, with monitoring time limits for relevant actions. You are also entitled to certain PCT fee reductions when filing electronically. More details about PCT electronic filing can be found at www.wipo.int/pct-safe/en/.

What are the costs associated with the filing and processing of an international application under the PCT? What are the costs for entering the national phase?

PCT applicants generally pay three types of fees when they file their international applications:

(a) an international filing fee of 1,330 Swiss francs2,

(b) a search fee which can vary from approximately 150 to 2,000 Swiss francs2 depending on the ISA chosen, and

(c) a small transmittal fee which varies depending on the receiving Office.

Because an international patent application is effective in all PCT Contracting States, you do not incur, at this stage in the procedure, the costs that would arise if you prepared and filed separate applications at national and regional Offices. Further information about PCT fees can be obtained from the receiving Offices, the Fee Tables, the PCT Applicant’s Guide and the PCT Newsletter.

The fees you will need to pay as you enter the national phase represent the most significant pre-grant costs. They can include fees for translations of your application, national (or regional) Office filing fees and fees for acquiring the services of local patent agents or attorneys. In several Offices however, national filing fees are lower for international patent applications than they are for direct national applications in recognition of the work already done during the international phase. You should also remember that in the case of all granted patents, whether or not the PCT is used to obtain them, you will need to pay maintenance fees in each country in order to keep the patents alive.

Are there any fee reductions available under the PCT?

PCT fee reductions are available to all applicants who file electronically, based on the type of filing and the format of the application submitted (see Question 7).

In addition, to encourage the use of the PCT System by applicants from developing countries fee reductions of 90% for certain fees, including the international filing fee, are available to natural persons.3 This same 90% reduction applies to any person, whether a natural person or not, who is a national of and resides in a State that is classed as a least developed country by the United Nations. If there are several applicants, each must satisfy those criteria.

Some ISAs also provide for a reduction of the international search fee if the applicant or applicants are nationals or residents from certain countries (see Annex D of the PCT Applicant’s Guide).

Some national or regional Offices provide for fee reductions for natural persons, universities, not-for-profit research institutes and small and medium-sized enterprises (SMEs) for the fees you will need to pay as you enter the national phase (see respective National Chapters of the PCT Applicant’s Guide).

How long does the PCT process take?

You have, in most cases, up to an additional 18 months from the time you file your international patent application (or usually 30 months from the filing date of the initial patent application of which you claim priority before you have to begin the national phase procedures with individual patent Offices and to fulfill the national requirements.

This additional time can be useful for evaluating the chances of obtaining patents and exploiting your invention commercially in the countries in which you plan to pursue patent protection, and for assessing both the technical value of your invention and the continued need for protection in those countries.

It is important to note, however, that you do not have to wait for the expiration of 30 months from the earliest filing date of your patent application (“priority date”) before you enter the national phase – you can always request an early entry into the national phase.

Since, in the national phase, each patent Office is responsible for examining your application in accordance with national or regional patent laws, regulations and practices, the time required for the examination and grant of a patent varies across patent Offices.

What does it mean to “claim priority” of an earlier patent application?

Generally, patent applicants who wish to protect their invention in more than one country usually first file a national or regional patent application with their national or regional patent Office, and within 12 months from the filing date of that first application (a time limit set in the Paris Convention, they file their international application under the PCT.

The effect of claiming the priority of an earlier patent application is that a patent shall not be invalidated by reasons of any acts accomplished in the interval, such as another filing, the publication or sale of the invention.

In what languages can an international patent application be filed?

You can file an international patent application in any language which the receiving Office accepts. If you file your application in a language which is not accepted by the ISA that is to carry out the international search, you will be required to furnish a translation of the application for the purposes of international search. Receiving Offices are, however, obliged to accept filings in at least one language which is both a language accepted by the competent ISA that is to carry out the international search and a “publication language”, that is, one of the languages in which international patent applications are published (Arabic, Chinese, English, French, German, Japanese, Korean, Portuguese, Russian and Spanish). You therefore always have the option of filing your international patent application in at least one language from which no translation is required for either PCT international search or publication purposes.

INTERNATIONAL SEARCH

Which Office will carry out the international search of my PCT application?

The following have been appointed by the PCT Contracting States as International Searching Authorities (ISAs): the national Offices of Australia, Austria, Brazil, Canada, China, Chile, Egypt, Finland, India, Israel, Japan, the Republic of Korea, the Russian Federation, Spain, Sweden, Ukraine4 and the United States of America, and the following regional Offices, the European Patent Office and the Nordic Patent Institute. The availability of a particular ISA to the nationals or residents of a country is determined by the receiving Office where the international application was filed. Some receiving Offices provide a choice of more than one competent ISA. If your receiving Office is one of those, you can choose any one of them, taking into account differing requirements relating to language, fees, etc..

What is a PCT international search?

A PCT international search is a high quality search of the relevant patent documents and other technical literature in those languages in which most patent applications are filed (Chinese, English, German and Japanese, and in certain cases, French, Korean, Russian and Spanish). The high quality of the search is assured by the standards prescribed in the PCT for the documentation to be consulted, and by the qualified staff and uniform search methods of the ISAs, which are all experienced patent Offices. The results are published in an international search report and a written opinion of the ISA on the potential patentability of your invention (see Questions 15 and 18).

What is an international search report?

The international search report consists mainly of a listing of references to published patent documents and technical journal articles which might affect the patentability of the invention disclosed in the international application. The report contains indications for each of the documents listed as to their possible relevance to the critical patentability questions of novelty and inventive step (non-obviousness). Together with the search report, the ISA prepares a written opinion on patentability, which will give you a detailed analysis of the potential patentability of your invention (see Question 18). The international search report and the written opinion are sent to you by the ISA.

What is the value of the international search report?

The report enables you to evaluate your chances of obtaining patents in PCT Contracting States. An international search report which is favorable, that is, in which the documents (prior art) cited would appear not to prevent the grant of a patent, assists you in the further processing of your application in those countries in which you wish to obtain protection. If a search report is unfavorable (for example, if it lists documents which challenge the novelty and/or inventive step of your invention), you have the opportunity to amend the claims in your international patent application (to better distinguish your invention from those documents), and have them published, or to withdraw the application before it is published.

Will an international search be carried out for all international applications?

As a rule, an international search is carried out for all international applications. There are instances, however, where the ISA will not be able to carry out a search. For example, where the international application relates to subject matter which the ISA is not required to search or if the description, claims or drawings are not sufficiently clear for it to carry out a meaningful search. In such cases, the ISA will issue a declaration that no international search report will be issued.

There are also circumstances where the ISA will issue a partial search report. This can occur when, in the view of the ISA, the international application contains multiple inventions but the applicant has not paid additional search fees to cover the work required to search those additional invention(s).

What is the written opinion of the International Searching Authority?

For every international application, the ISA will establish, at the same time that it establishes the international search report, a preliminary and non-binding opinion on whether the invention appears to meet the patentability criteria in light of the search report results. The written opinion, which is sent to you together with the international search report, helps you understand and interpret the results of the search report with specific reference to the text of your international application, being of special help to you in evaluating your chances of obtaining a patent. The written opinion is made available to the public at the same time as the application.

SUPPLEMENTARY INTERNATIONAL SEARCH

What is the PCT supplementary international search?

Supplementary international search permits the applicant to request, in addition to the international search (the “main international search”), one or more supplementary international searches each to be carried out by an ISA other than the ISA which carried out the main international search. The additional search has the potential of reducing the risk of new patent documents and other technical literature being discovered in the national phase since, by requesting supplementary search the applicant can enlarge the linguistic and/or technical scope of the documentation searched.

What is the supplementary international search report?

The supplementary international search report is generally similar in content and appearance to the main international search report; it contains a listing of references to patent documents and other technical literature which may affect the patentability of the invention claimed in the international application. However, it does not repeat documents which have already been cited in the international search report, unless this is necessary because of new relevance when read in conjunction with other documents discovered during the supplementary international search. On occasion, the supplementary international search report may contain more detailed explanations than those in the main international search report. This is due to the fact that, unlike the main international search, no written opinion is established with the supplementary international search report, and these additional details are helpful for a full understanding of the references listed.

INTERNATIONAL PUBLICATION

What does international publication under the PCT consist of?

WIPO publishes the international application shortly after the expiration of 18 months from the priority date (if it has not been withdrawn earlier), together with the international search report. PCT international applications are published online on PATENTSCOPE, a powerful, fully searchable database with flexible, multilingual interfaces and translation tools to assist users and the public in understanding the content of published applications..

Can third parties access documents contained in the file of the international application? If so, when?

Until international publication (18 months after the priority date), no third party is allowed access to your international application unless you as applicant request or authorize it. If you wish to withdraw your application (and you do so before international publication), international publication does not take place and, as a consequence, no access by third parties is permitted. However, when international publication occurs, certain documents in the international application file are made available on PATENTSCOPE together with the published international application, for example, the written opinion of the ISA and any informal comments on the written opinion.

INTERNATIONAL PRELIMINARY EXAMINATION

What is international preliminary examination?

International preliminary examination is a second evaluation of the potential patentability of the invention, using the same standards on which the written opinion of the ISA was based. If you wish to make amendments to your international application in order to overcome documents identified in the international search report and conclusions made in the written opinion of the ISA, international preliminary examination provides the only possibility to actively participate in the examination process and potentially influence the findings of the examiner before entering the national phase – you can submit amendments and arguments and are entitled to an interview with the examiner. At the end of the procedure, an international preliminary report on patentability (IPRP Chapter II) will be issued.

The International Preliminary Examining Authorities (IPEAs) which carry out the international preliminary examination are the ISAs mentioned above. For a given PCT application, there may be one or more competent IPEAs; your receiving Office can supply details or you may consult the PCT Applicant’s Guide and the PCT Newsletter.

What is the value of the international preliminary report on patentability?

The IPRP (Chapter II) which is provided to you, to WIPO and to the national (or regional) patent Offices, consists of an opinion on the compliance with the international patentability criteria of each of the claims which have been searched. It provides you with an even stronger basis on which to evaluate your chances of obtaining patents, in most cases on an amended application, and, if the report is favorable, a stronger basis on which to continue with your application before the national and regional patent Offices. The decision on the granting of a patent remains the responsibility of each of the national or regional Offices in which you enter the national phase; the IPRP (Chapter II) should be considered by the Offices but is not binding on them.

NATIONAL PHASE

It is only after you have decided

How do I enter the national phase?

whether, and in respect of which States, you wish to proceed further with your international application that you must fulfill the requirements for entry into the national phase. These requirements include paying national fees and, in some cases, filing translations of the application. These steps must be taken, in relation to the majority of PCT Contracting States’ patent Offices, before the end of the 30th month from the priority date. There may also be other requirements in connection with the entry into the national phase – for example, the appointment of local agents. More general information on national phase entry can be found in the PCT Applicant’s Guide, National Phase, and specific information concerning fees and national requirements can be found in the national chapters for each PCT Contracting State in the same Guide.

What happens to my application in the national phase?

Once you have entered the national phase, the national or regional patent Offices concerned begin the process of determining whether they will grant you a patent. Any examination which these Offices may undertake should be made easier by the PCT international search report and the written opinion and even more by an international preliminary examination report.

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What are the advantages of the Patent Cooperation Treaty (PCT)?

The advantages of the Patent Cooperation Treaty

The PCT is an international treaty with more than 145 Contracting States. The PCT makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications. The granting of patents remains under the control of the national or regional patent Offices in what is called the “national phase”.

The PCT System has many advantages for you as an applicant, for the patent Offices and for the general public:

You have up to 18 months more than if you had not used the PCT to reflect on the desirability of seeking protection in foreign countries, to appoint local patent agents in each foreign country, to prepare the necessary translations and to pay the national fees;

If your international application is in the form prescribed by the PCT, it cannot be rejected on formal grounds by any PCT Contracting State patent Office during the national phase of the processing of the application;

The international search report and written opinion contain important information about the potential patentability of your invention, providing a strong basis for you to make business decisions about how to proceed;

You have the possibility during the optional international preliminary examination to amend the international application, enter into dialogue with the examiner to fully argue your case and put the application in order before processing by the various national patent Offices;

The search and examination work of patent Offices in the national phase can be considerably reduced thanks to the international search report, the written opinion and, where applicable, the international preliminary report on patentability that accompany the international application;

You may be able to fast-track examination procedures in the national phase in Contracting States that have PCT-Patent Prosecution Highway (PCT-PPH) agreements or similar arrangements;

Since each international application is published together with an international search report, third parties are in a better position to evaluate the potential patentability of the claimed invention;

For you as an applicant, international publication online puts the world on notice of your invention. You may also highlight your interest in concluding licensing agreements on PATENTSCOPE, which can be an effective means of advertising and looking for potential licensees;

You also achieve other savings in document preparation, communication and translations because the work done during the international processing is generally not repeated before each Office (for example, you submit only one copy of the priority document instead of having to submit several copies); and

If your invention appears to be not patentable at the end of the international phase, you may abandon the PCT application and you will have saved the costs you would otherwise have incurred by directly seeking protection in foreign countries, appointing local patent agents in each foreign country, preparing the necessary translations and paying the national fees.

Ultimately, the PCT:

Brings the world within reach;

Streamlines the process of fulfilling diverse formality requirements;

Postpones the major costs associated with seeking multinational patent protection;

Provides a strong basis for patenting decisions; and

Is used by the world’s major corporations, research institutions and universities when they seek multinational patent protection.

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Overview of the Patent Cooperation Treaty (PCT) System and The role of WIPO in the PCT

What is the Patent Cooperation Treaty (PCT)?

The PCT is an international treaty with more than 145 Contracting States. The PCT makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications. The granting of patents remains under the control of the national or regional patent Offices in what is called the “national phase”.

The PCT procedure includes:

Filing: you file an international application with a national or regional patent Office or WIPO, complying with the PCT formality requirements, in one language, and you pay one set of fees.

International Search: an “International Searching Authority” (ISA) (one of the world’s major patent Offices) identifies the published patent documents and technical literature (“prior art”) which may have an influence on whether your invention is patentable, and establishes a written opinion on your invention’s potential patentability.

International Publication: as soon as possible after the expiration of 18 months from the earliest filing date, the content of your international application is disclosed to the world.

Supplementary International Search (optional): a second ISA identifies, at your request, published documents which may not have been found by the first ISA which carried out the main search because of the diversity of prior art in different languages and different technical fields.

International Preliminary Examination (optional): one of the ISAs at your request, carries out an additional patentability analysis, usually on an amended version of your application.

National Phase: after the end of the PCT procedure, usually at 30 months from the earliest filing date of your initial application, from which you claim priority, you start to pursue the grant of your patents directly before the national (or regional) patent Offices of the countries in which you want to obtain them.

How do I protect my invention in several countries?

Patents are territorially limited. In order to protect your invention in multiple countries you have a few options:

–  Direct or Paris route: you can directly file separate patent applications at the same time in all of the countries in which you would like to protect your invention (for some countries, regional patents may be available) or, having filed in a Paris Convention country (one of the Member States of the Paris Convention for the Protection of Industrial Property), then file separate patent applications in other Paris Convention countries within 12 months from the filing date of that first patent application, giving you the benefit in all those countries of claiming the filing date of the first application;

–  PCT route: you can file an application under the PCT, directly or within the 12-month period provided for by the Paris Convention from the filing date of a first application, which is valid in all Contracting States of the PCT and, therefore, simpler, easier and more cost-effective than both, direct or Paris route filings.

Who uses the PCT?

The PCT is used by the world’s major corporations, research institutions, and universities when they seek international patent protection. It is also used by small and medium sized enterprises (SMEs) and individual inventors. The PCT Newsletter contains a yearly list of the largest PCT filers.

What is the role of WIPO in the PCT?

WIPO administers the PCT. It also organizes the PCT Assembly, the PCT Working Group and the Meeting of International Authorities. Further, for each PCT application filed, WIPO is responsible for:

– Receiving and storing all application documents;

– Performing a formality examination;

– Publishing the international application on WIPO’s online database PATENTSCOPE;

– Publishing data about the PCT application as prescribed in the Treaty and Regulations;

– Translating various portions of the PCT application and certain associated documents into English and/or French, where necessary;

– Communicating documents to Offices and third parties; and

– Providing legal advice on request to Offices and users.

WIPO also:

– Provides overall coordination of the PCT System;

– Provides assistance to existing, new and potential Contracting States and their Offices;

– Provides advice on implementing the PCT in the national legislation and on setting up internal procedures in the Contracting States’ patent Offices;

– Publishes the PCT Applicant’s Guide and the PCT Newsletter;

– Creates and disseminates PCT information via the PCT website, webinars, and through telephone and e-mail assistance; and

– Organizes and gives PCT seminars and training courses.

Source: ANTLawyers.vn

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How Foreign Investors Could Handle Intellectual Property Dispute in Vietnam?

Intellectual property disputes in Vietnam

Foreign investor could handle intellectual property disputes in Vietnam through negotiation and mediation, arbitration or litigation depending on various factors.

Intellectual property rights is the rights of organizations, individuals to the intellectual property, including copyrights and related rights, industrial property rights, including trademark, patent, and industrial design and rights to the plant varieties. Under Vietnam intellectual property law, owners are granted certain exclusive right to the intangible assets. Intellectual property infringement occurs whenever the rights of any type of intellectual property are violated. The intellectual property disputes arise directly from all types of intellectual property as mentioned or commercial transactions and extraction process regarding to types of intellectual property such as license agreement, intellectual property transferring agreement.  Disputes could be settled by different methods, depending on the subjective wills of parties. The parties have right to choose any methods that they deem ideal to protect their interests.

Nowadays, international practice allows parties to choose one of two ways to settle their disputes, including dispute settlement mechanism without litigation (negotiation and mediation) and dispute settlement mechanism with litigation (civil litigation and arbitration). Typically, when disputes occur, parties often choose simplest methods before using other ones. The simplest methods are negotiation and mediation.

Negotiation is a procedure whereby parties work together and reach the solution by expressing their own point of views to the dispute. This method is used for small, non-complex disputes so that parties could be easy to reach a consensus about dispute settlement. Though this method is simple, it is hard for parties to shake their hands together and come to consensus. It is simply because each party always need advantages come to them. Besides, for example, if parties reach the consensus in settling dispute, there is no mechanism to ensure enforcement of dispute solution.

Mediation, different from negotiation, the participation of third party is requested by parties. However, the same thing between negotiation and mediation is that parties are sole those holding right to decide what solutions are applied to settle dispute. Despite the third party only act as intermediary, the mission of third party is really important. The third party helps to connect dispute parties and avoid stronger conflict between them. With experience and skills, they make opportunity for parties exchange information, help them express their standpoints, promote flexible solutions and suggest solution suitable for both of them. Of course, a methodswhich the third party proposes is solely recognized as a reference. In mediation, the information security is highly ensured. Parties are not forced to reveal any information that they want to keep as a secret. Besides, mediation helps parties minimize fees due to simple procedure. Moreover, mediation allows opportunity for parties to work together and reach settlement and typically, parties still keep their business relationship. Last but not least, parties can mediate in any period of dispute settling process. Mediation can be chosen as the first step to come to dispute settling process after each side’s endeavor.

After no result of both side’s endeavor, parties can choose one of the dispute settlement mechanism with litigation to settle dispute. Generally, the proceeding of civil litigation is more complex than the arbitration proceeding. In case one side needs a decision from court so as to end infringement, civil litigation is top priority. In the remaining case, arbitration is a choice with advantages. Arbitration is solely conducted when parties reach consensus that arbitration is a form of dispute resolution. Arbitration agreement must be a term of the core contract or an independent agreement.

Firstly, cost for arbitration is typically cheaper than traditional litigation. Attorney’s fees and expense are minimized in arbitration because arbitration is generally concluded in far less time than cases at court. Secondly, length of dispute settling time in arbitration is shorter than litigation in court because of simple procedure. Court cases generally require more counsel time and, thus, more expenses for preparation and trial than is needed in arbitration. Thirdly, settling dispute by arbitration is effective because of its flexibility. In arbitration, parties have right to choose form of arbitration (Ad hoc or permanent). Moreover, parties can schedule hearings and deadlines to meet their objectives and convenience. This flexibility allows parties save money, time and partially promote dispute settling process to be faster. Fourthly, arbitration is a secret proceeding. The decision is public, but the trial is close. This feature of arbitration is a big advantage for dispute involving trade secret or patent. Lastly, arbitration council’s decision is final. It means that contrary to decision of court, most of arbitration council’s decisions cannot be appealed. Chance for canceling arbitration’s decisions is not much, primarily because of basic mistakes about procedures.

Dispute settling method in arbitration is suitable for most of intellectual property disputes because this method meets the featured requirements of intellectual property dispute (multinational, information security, complexity). Mediation and arbitration can combine together in settling dispute. Firstly, dispute is settled by mediation. Then, in case if parties do not reach settlement in mediation, dispute will be settled by arbitration council. The advantage of this combination is that it promotes parties propose goodwill engagement in mediation and after that, will create more advantages for dispute resolution in arbitration.

To summarize, when facing a dispute relating to intellectual property right, foreign investor can handle out dispute through judging exactly about scale of dispute, financial capability, dispute settling time, level of information security because intellectual property is worthy assets that can impact development as well as existence of enterprises.

With highly professional staff and great experience in IP aspect in Vietnam, ANT Lawyers would like to support you in extending your intellectual property in Vietnam.

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Vietnam M&A market hits US$1.8 billion in Jan-May

HCMC – Capital contributions and share purchases by foreign investors via mergers and acquisitions (M&A) deals amounted to around US$1.8 billion in the first five months of the year, up a whopping 116.2% compared to the same period last year.

Foreign investors engaged in 2,061 M&A transactions in the period, according to the Foreign Investment Agency under the Ministry of Planning and Investment. Foreign investors via M&A deals have now entered various sectors, including production and services.

For example, Thailand’s Siam Cement Group acquired the entire stake worth US$156 million in a cement manufacturer, Vietnam Construction Materials JSC, in the central province of Quang Binh, while South Korean food firm CJ CheilJedang Corporation raised its controlling stake to 71.6% in the former Cau Tre Export Processing JSC late last year.

In regard to the real estate sector, Singapore’s Keppel Land Limited through its subsidiary Krystal Investments Pte Ltd clinched a deal with the Southern Waterborne Transport Corporation (Sowatco) to acquire an additional 16% stake worth VND845.9 billion in the Saigon Centre property in downtown HCMC.

M&A deals in the real estate market could hit a record high this year as many investors are sounding out opportunities to pour billions of dollars in budget and mid-end apartments, offices, hotels and industrial parks, according to propertyservices provider Jones Lang LaSalle Vietnam.

The European Chamber of Commerce in Vietnam (EuroCham) says many investors consider M&A deals as the most effective way to penetrate the Vietnamese market and expand their business as well. This investment trend is expected to continue next year.

The growth of M&A deals is thanks to the 2014 Investment Law that clarifies some previously ambiguous regulations, according to analysts.

Specifically, foreign investors have no need to go through investment procedures if they choose investment capital contributions and share purchases.

Notably, Decree No. 60/2015/ND-CP allows investors to increase their ownership at many listed and public companies from 49% to 100%, except for those active in conditional business sectors.

Besides, they have seen more opportunities emerging, especially the Government’s effort to equitize State-owned enterprises to divest State stakes from non-core business operations.

Source: English.thesaigontimes.vn

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