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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