- Like the protection of other civil rights, the Court should determine the legal right to intellectual property of a particular entity, on the basis of legal provisions, and determine whether there has been any breach of the intellectual property right.
- The Judge should note that in addition to the provisions of the Civil Code, the legislation which determines the intellectual property includes professional management provisions (Government’s Decrees regulating in detail each area), Law on Intellectual Property and international treaties to which Vietnam is a party.
- Noting that international treaties are an important source of laws in respect of intellectual property and technology transfer due to the nature of swift participation in international exchange of the subjects of intellectual property and technology transfer.
- Technology is one of the subjects of intellectual property or of the nature of being an intellectual asset. Therefore, the laws on intellectual property also covers the laws on technology transfer.
- The Civil Code 1995 regulates the intellectual property rights and technology transfer in «Part Six» of three chapters, from Article 745 to Article 825. In addition, there are provisions on the intellectual property and technology transfer with foreign elements (Articles 836, 837 and 838 of the Civil Code). There have been a lot of decrees and circulars providing guidelines for implementation of «Part Six» of the Civil Code 1995.
- The Civil Code 2005 regulates the intellectual property right and technology transfer in «Part Six» with three chapters, from Article 736 and Article 757. The provisions of the Civil Code 2005 with less detailed provision are considerably different from the provisions of the Civil Code 1995 (The Law on Intellectual Property governs this) .
- The Civil Code 2005 has replaced the Civil Code 1995 on 1 January 2006 but the Judge should note that the provisions of the Civil Code 1995 still apply to determine the legality of transactions made in the period when the Civil Code 1995 operated; and still may apply sub-legal documents of the Civil Code 1995 if such documents are not inconsistent with the new provisions of the Civil Code 2005.
- The number of cases on intellectual property and technology transfer brought before court is very limited. The law governing these matters has been passed by various bodies and in different forms (legislation, regulations) and appears in many legislation and regulations. The application of the law on this area is not a task which judges often perform. Thus, there needs be a list of all relevant laws for easy search and study; international agreements to which Vietnam is a party on this area should also be frequently updated (that may have the same contents, but different application).
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