Disputes over industrial property rights are conflicts over subjects’ rights and interests related to inventions, designs, trademarks, etc. These disputes can significantly impact on the rightful owners. For careful understanding, the following article will delve deeper into this topic.
Industrial property rights are one of the objects of intellectual property rights and depend on the scope of regulation of the Vietnamese Intellectual Property Law. So what are industrial property rights? What are the documents and procedures for filing a lawsuit to request the settlement of industrial property disputes? NPLaw, a law firm with many years of experience, will provide clients with consulting and dispute resolution services for industrial property rights.
In practice, the resolution of disputes over industrial property rights is mainly through negotiation. Meanwhile, commercial mediation and commercial arbitration, although they bring many advantages to the disputing parties in terms of time, efficiency and cost, the number of organizations and individuals accessing these forms is still limited.
Similarly, the number of cases of industrial property infringement that are handled by the Court also accounts for a small number. These numbers have partially reflected the reality of resolving disputes over intellectual property rights in general and industrial property rights in particular in Vietnam.
Clause 4, Article 4 of the Intellectual Property Law 2005 (amended and supplemented in 2009) (hereinafter referred to as the IP Law) stipulates that industrial property rights are the rights of organizations and individuals with respect to inventions, industrial designs, integrated circuit layout designs, trademarks, trade names, geographical indications, and trade secrets created or owned by them, and the rights against unfair competition.
The methods for resolving industrial property disputes include:
+ Negotiation between the parties
+ Mediation between the parties by an authority, an organization, or an individual selected by the parties to act as a mediator.
+ Arbitration
+ Court
A lawsuit against an individual or organization for infringing industrial property rights is a dispute over intellectual property rights under Clause 4, Article 26 of the Civil Procedure Code 2015, except as provided for in Clause 2, Article 30 of this Code. The People's Court of the District has jurisdiction to resolve this dispute in the first instance under Point a, Clause 1, Article 35 of the Civil Procedure Code 2015.
For cases of disputes over intellectual property rights or technology transfers between individuals and organizations that both have profit purposes according to Clause 2, Article 30 of the Civil Procedure Code 2015, then the jurisdiction to resolve these cases belongs to the People's Court of the Province according to the provisions of Point a, Clause 1, Article 37 of the Civil Procedure Code 2015.
The Court where the defendants reside, work, or has its competent headquarters to resolve the cases according to Point a, Clause 1, Article 39 of the Civil Procedure Code 2015. However, the parties have the right to agree with each other in writing to require the Court where the plaintiffs reside, work, or has its competent headquarters to resolve these cases according to Point b of this Clause.
However, if disputes have foreign elements such as one of the parties being a foreign person or organization, property abroad, judicial entrustment for Vietnamese representative agencies abroad or foreign courts, then cases will be under the jurisdiction of the People's Court of the Province.
- Petition (known as an application): When filing a lawsuit, you need to consider the petition forms. The petition must contain the main contents according to Clause 4, Article 189 of the Civil Procedure Code 2015, and the petition form according to Form 23-DS as defined by Resolution No. 01/2017/NQ-HDTP.
- A certified or notarized copy of the identity card, passport or citizen identity card and family household book (for individuals); business registration certificate, establishment decision or operating license (for organizations).
Notes:
- Documents whose contents can be read are considered evidence if they are originals, certified copies or provided and confirmed by competent authorities.
- Foreign language documents must be translated into Vietnamese by translation agencies, accompanied by the originals.
- Determine the conditions for filing a lawsuit:
- The owners of industrial property rights have the right to file a lawsuit with competent courts or arbitrations to protect their legitimate rights and interests under Point d, Clause 1, Article 198 of the Intellectual Property Law.
- The plaintiffs must meet the regulations on the right to file a lawsuit and the procedural capacity of the Civil Procedure.
- Cases have not been resolved by a valid judgment of the law.
- Cases are within the jurisdiction of the court.
- There are considerations for the competent courts to resolve cases.
- Preparing the lawsuit documents and the advance payment of court fees:
+ According to Clause 2, Article 195 of the Civil Procedure Code 2015, within 7 days from the date of receiving the court's written notice to make the advance payment of court fees, the plaintiffs must make the advance payment of court fees and submit to the court a receipt for the payment. The court fees for civil cases in the first instance are specifically stipulated in the List of Court Costs and Fees issued together with Resolution No. 326/2016/UBTVQH14. In fact, these are cases of civil disputes with a monetary value, the amount of the advance payment of court fees for civil cases in the first instance will have a monetary value at 50% of the amount of the civil fees in the first instance with a monetary value under Clause 2, Article 7 of Resolution No. 326/2016/UBTVQH14.
+ Submitting the petition (with supporting documents) to competent Courts to resolve cases according to the methods prescribed in Clause 1, Article 190 of the Civil Procedure Code 2015, as follows:
+ Submitting directly to the court;
+ Sending by postal service;
+ Submitting online in electronic form through the Court's E-Portal (if any).
+ The procedures for receiving and processing the petition are prescribed in Article 191 of the Civil Procedure Code 2015:
+ Within 03 (three) working days from the date the petitions are received, the Chief Justices of Courts shall assign one Judge to review the petitions according to Clause 2 of this Article.
+ Within 05 (five) working days from the date they are assigned, the Judges shall review the petitions and make one of the following decisions: To request amendment and/or supplementation of lawsuit petitions; To carry out the acceptance procedures of the cases; To transfer the lawsuit petitions to competent Courts and notify the plaintiffs thereof if the cases fall under other courts' jurisdiction; To return the lawsuit petitions to the plaintiffs if such cases do not fall under the court's jurisdiction.
In the process of resolving industrial property disputes, the parties are allowed to use the industrial products, except in cases where the Court applies temporary emergency measures. Therefore, there are no restrictions on the use of industrial products that are involved in disputes over intellectual property rights under Clause 2, Article 199 of the Intellectual Property Law 2005.
A restaurants’ food recipe can be protected as a work or a trade secret. According to the Law, a trade secret is information obtained from financial and intellectual investment activities, not yet disclosed and has the potential to be used in business (as defined by Clause 23, Article 4 of the Intellectual Property Law).
Article 84 of the Intellectual Property Law stipulates the conditions for trade secrets to be protected, as follows:
+ Trade secrets are not common knowledge and are not easily obtained.
+ When used in business, trade secrets will give the owners of trade secrets advantages over those who do not hold or use trade secrets.
+ Trade secrets are protected by the owners by necessary measures to prevent disclosure and easy access.
Therefore, when the food recipes meet the above criteria, they will be recognized by the law as protecting the rights to industrial property. From there, if there are disputes over the food recipes of restaurants, these are disputes over industrial property.
Measures to protect trade secrets in the resolution of industrial property disputes are as follows:
- When trade secrets are infringed, the owners of the trade secrets have the right to require the competent state agencies to force persons who commit the infringement to cease the infringement and compensate for damages.
- The duration for implementing the right to request the handling of infringing acts is one year from the date of discovering infringing acts, but not more than three years from the date the infringing acts occur.
- For damage compensation, the owners of trade secrets must prove the extent of damages as well as conditions for establishing the rights and specify the infringing acts of their rights (name and address of the violator, evidence of the acts and the extent of infringement).
- The People's Court is the competent authority to hear these industrial property disputes. The principles of damage compensation caused by infringement of trade secrets are applied to the regulations on liability for damage compensation in the Civil Code 2015. The amount of damage caused must be compensated. Damage is fully and promptly compensated. The compensation procedures include the following orders: determining whether the acts causing damage belong to an individual or a legal entity, determining the direct and indirect damage, calculating the damage and the method of damage compensation.
The above article is about industrial property disputes and the documents and procedures for filing a lawsuit to request dispute resolution. If you need to send documents or schedule a meeting with a lawyer, please contact Ngoc Phu Law Firm - NPLaw Law Firm via hotline: 0913449968 to receive advice on industrial property disputes or direct exchange.
NPLAW
Hotline: 0913449968
Email: legal@nplaw.vn
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