Acts of unfair competition on industrial property rights in Vietnam

Ngày cập nhật: 30/12/2022 lúc 12:00:50

Acts of unfair competition on industrial property rights in Vietnam

I. Unfair competition on industrial property rights

1.1 What is unfair competition?

According to the provisions of Clause 6, Article 3 of the 2018 Competition Law :

Unfair competition is an act of an enterprise that is contrary to the principles of good faith, honesty, commercial practices and other standards in business, causing damage or may cause damage to the rights and interests of the enterprise legitimate interests of other enterprises ”.

Competition is the driving force for the development of the economy, because competition makes producers more dynamic, more sensitive, better grasp the needs of consumers, forcing them to offer new products and strategies. economically viable strategy.

However, in order to achieve economic benefits, through its production and business process, enterprises have performed dishonest commercial acts to create competitive advantages and profits for themselves. . Such behavior negatively affects other businesses. That is unfair competition.

1.2 What is industrial property rights ?

According to the provisions of Clause 4, Article 4 of the Law on Intellectual Property in 2005, amended and supplemented in 2009, in 2019 , industrial property rights are the rights of organizations and individuals to inventions and public designs. industry, design and layout of semiconductor integrated circuits, trademarks, trade names, geographical indications, trade secrets created or owned by themselves, and the right to combat unfair competition ”.

According to the provisions of Clause 2, Article 3 of the Law on Intellectual Property 2005, as amended and supplemented in 2009, in 2019 , the subjects of industrial property rights include inventions, industrial designs, integrated circuit layout designs. semiconductor patents, trade secrets, trademarks, trade names and geographical indications.

According to the provisions of Clauses 12, 13, 15, 16, 21, 22, 23, Article 4 of the Law on Intellectual Property 2005, as amended and supplemented in 2009, in 2019 :

An invention is a technical solution in the form of a product or process that solves a specified problem by applying natural laws.

Industrial design is the external appearance of a product expressed by shapes, lines, colors or a combination of these elements.

Layout design of semiconductor integrated circuits (hereinafter referred to as layout design) is the spatial structure of circuit elements and the interconnection of those elements in a semiconductor integrated circuit.

A business secret is information obtained from financial and intellectual investment activities that has not been disclosed and is capable of being used in business.

Trademark is a sign used to distinguish goods and services of different organizations and individuals.

Trade name is the name of an organization or individual used in business activities to distinguish a business entity bearing that name from other business entities in the same business field and area.

A geographical indication is a sign that refers to a product originating in a particular region, locality, territory or country.

1.3 What is unfair competition in industrial property rights?

At present, the law has not given a specific concept of unfair competition on industrial property rights, but only lists out acts of unfair competition on industrial property rights. But based on the above definitions, it can be understood that acts of unfair competition on industrial property rights are: Competitive behavior of enterprises in the business process contrary to normal standards of business ethics business, causing damage or may cause damage to the state interests, the legitimate rights and interests of other enterprises or consumers regarding industrial property rights.

II. Acts of unfair competition in industrial property

According to the provisions of Point d, Clause 3, Article 6 of the Law on Intellectual Property in 2005, amended and supplemented in 2009, in 2019 , the right to combat unfair competition is established on the basis of competitive activities in the business. business “.

According to Clause 1.8, Article 1, Section 1 of Circular 01/2007/TT-BKHCN dated February 14, 2007 guiding the implementation of Decree No. 103/2006/ND-CP dated September 22, 2006 of the Government detailing and guiding the implementation of a number of articles of the Intellectual Property Law on industrial property: ” The right to combat unfair competition is established on the basis of the reality of competition activities without having to carry out registration procedures. at the Department of Intellectual Property. When using the right to fight against unfair competition, the subject must prove his/her right by proofs showing the object, field, territory and time of business related to competitive activities ” .

Regarding acts of unfair competition, the provisions of Article 130 of the Law on Intellectual Property 2005, as amended and supplemented in 2009 , clearly state the following cases:

“ Article 130. Unfair competition behavior

  1. The following acts are considered unfair competition acts:
  2. a) Using commercial indications to cause confusion about business entities, business activities, commercial origins of goods or services;
  3. b) Using commercial indications to cause confusion about the origin, production method, features, quality, quantity or other characteristics of goods or services; on conditions for providing goods and services;
  4. c) Using a trademark protected in a country that is a contracting party to an international treaty that prohibits the representative or agent of the mark owner from using such mark that the Socialist Republic of Vietnam is not authorized to use. also a member, if the user is the representative or agent of the trademark owner and such use is not consented to by the trademark owner and without good cause;
  5. d) Register, seize the right to use or use a domain name identical or confusingly similar to another’s trademark, protected trade name or geographical indication that it does not have the right to use for the purpose of seize domain names, take advantage of or damage the reputation and reputation of respective trademarks, trade names or geographical indications.
  6. Commercial indications specified in Clause 1 of this Article are signs and information intended to guide the trade of goods and services, including trademarks, trade names, business symbols, business slogans, geographical indications, packaging designs of goods, goods labels.
  7. Acts of using commercial indications specified in Clause 1 of this Article include acts of attaching such commercial indications to goods, goods packages, means of services, business transaction documents, means of transport. advertising facilities; sell, advertise for sale, stockpile for sale or import goods bearing such trade indications ”.

It can be seen that the law on intellectual property clearly stipulates the acts of unfair competition. However, not all acts of unfair competition are governed by intellectual property law, but only acts of unfair competition related to industrial property rights are specified in Article 2 of this Law. 130 Law on Intellectual Property in 2005, amended and supplemented in 2009, only violated the law on intellectual property in 2019 (violation of competition law). On the other hand, acts of unfair competition but not related to industrial property rights will only be considered a violation of competition law.

Measures to deal with unfair competition in industrial property rights

The provisions of Clause 3, Article 198 of the Law on Intellectual Property in 2005 as amended and supplemented in 2009 and 2019 allow:

Organizations and individuals that suffer damage or are likely to suffer damage due to acts of unfair competition have the right to request competent state agencies to apply civil measures specified in Article 202 of this Law. and administrative measures in accordance with the law on competition ”.

Civil measures : According to the provisions of Article 202 of the Law on Intellectual Property in 2005, amended and supplemented in 2009, in 2019 , civil measures include:

– Forcible termination of infringing acts;

– Forced public apology and correction;

– Forcible performance of a civil obligation;

– Forcible compensation for damage;

– Forcible destruction or forced distribution or use for non-commercial purposes of goods, raw materials, materials and means used mainly for production and trading of goods infringing upon property rights. intellectual property rights, provided that it does not affect the ability of the intellectual property right holder to exploit the rights.

Administrative measures according to the competition law : According to the provisions of Decree 75/2019/ND-CP dated September 26, 2019 on sanctioning of administrative violations in the field of competition to be applied respectively to each violation.

  1. Legal grounds

– Competition Law 2018;

– Law on Intellectual Property 2005, amended and supplemented in 2009, 2019;

– Decree 75/2019/ND-CP dated September 26, 2019 on sanctioning of administrative violations in the field of competition;

– Circular 01/2007/TT-BKHCN dated February 14, 2007 guiding the implementation of Decree No. 103/2006/ND-CP of September 22, 2006 detailing and guiding the implementation of a number of Articles of the Intellectual Property Law on industrial property;

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