Main tasks and practical skills:
- Industrial property rights can be divided into two categories:
- Group of traditional and typical industrial property rights, including: industrial property rights with respect to inventions, industrial designs, design of semiconducting closed circuits, and crop seeds.
- Group of rights associated with industrial property rights, including: industrial property rights with respect to business secrets, trademarks, commercial names and geographical instructions, right against unfair competition.
- Objects of industrial property rights under typical group are products from creative labour of one person or a group of persons who have the right to stand as the author in the protection title. The using of such work shall produce economic benefits and can be used for many times. Due to this characteristics, the lease of use rights or transfer of use rights is common method of using this right. Therefore, disputes related to this group are often concerning rights to use industrial property objects.
- Grounds for establishing industrial property rights are different, of which industrial property rights to inventions, industrial designs, design of semiconducting closed circuits, trademarks, geographical instructions, and rights to crop seeds are established on the basis of a decision of a competent State agency in the course of registration. Therefore, industrial property rights to the above objects only arise on the basis of a protection title issued by a competent agency.
- Protection titles have different validity periods. For example: An invention exclusive title is valid from the date of issuance and shall take effect 20 years from the date of valid filing of the application; An industrial design exclusive title is valid from the date of issuance and shall take effect 5 years from the date of valid filing of the application. The contents of the title shall provide in detail the nature and scope of protection and other necessary information related to the protection right (Article 26 of Decree 63/CP dated 24 October 1996). Therefore, the Judge should check protection titles in resolving the dispute on industrial property rights and pay attention to the contents of the titles.
- There are also cases where rights of the owner arise earlier or have shorted term than as written in the title. For example: As from the date of announcement of the application to the date of issuance of the title, if the invention is being used by another person and they have been announced of the filing of the application, right after the date of issuance of the title, they have to pay an amount for their use of the invention; term on the Trademark Registration Certificate has not expired yet but owner of the certificate has not used such trademark for 5 consecutive years, then validity shall be suspended since the first day of such 5-year period.
- The Judge should also pay attention to cases where there exist signs of infringement but laws on intellectual property stipulate that “not infringing upon industrial property rights" (Article 53 of Decree 63/CP).
- When resolving a dispute related to trademarks, the Judge should pay attention to the criteria “similarity that may cause confusion”. This is not only for trademark registration bodies but also for determining that there has been an infringement when resolving such dispute at the Court.
- Regarding compensation for damages: The Judge should refer to experience of other countries and may apply one of the four compensation methods, that is compensation according to actual damages, profits gained by the person who has infringed upon the rights, by laws or according to reasonable royalties or licence issuance fee. Licence issuance fee is an amount equivalent to a fee for transfer of ownershup. Reasonable royalties may range from 5% to 10% of the total turnover of the defendant.
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