How is it determined when enhanced damages apply under Vietnam IP Law? What type of enhanced damages can be applied?
Please be noted that there are 03 laws concerning the determination of seriousness of damages in Vietnam: Administrative Laws; Criminal Laws; Civil Laws. There are no clear regulations concerning enhanced damages in case of willful infringement. As a result, please, pay attention to the followings which are in our opinion, are related to enhanced damages in case of willful infringement:
(i) With reference to civil remedies
There is no regulation in current Vietnam IP Law as well as in Vietnam Civil Code 2005 concerning enhanced damages be awarded as the result of willful infringement. It can be seen in Article 205 of Vietnam IP Law and Articles 15 to 20 of Decree No. 105/2006/ND-CP that there is no regulations concerning enhanced damages be awarded in case of willful infringement. The other important Law (Civil Code 2005) has also no provisions concerning enhanced damages be awarded in case of willful infringement.
(ii) As to administrative remedies
Please be advised that there are regulations concerning enhanced fine in case of willful infringement. The particular fine is stipulated in Article 12 of Decree No.106/2006. You can see that the maximum fine is 4-5 times the value of products or goods detected in violation in case the products or goods in violation are valued at over VND 60,000,000 (about 3,750 USD). Furthermore, please refer to Article 3.3 of Decree No. 106/2006 and Article 4 of Decree No. 106/2006 defining aggravating circumstances.
(iii) Criminal remedies
The enhanced criminal remedy will be applied in case of repeating action, i.e., willful infringement (see Article 171.1 of Criminal Code). In particular, subject to a fine of between twenty million dong and two hundred million dong (about 1,200 USD to 12,000 USD) or to non-custodial reform for up to two years.
Article 4. Aggravating circumstances
2. Aggravating circumstances:
a/ Committing violations in an organized manner;
b/ Committing violations repeatedly or relapsing into violation in the domain of industrial property;
c/ Inciting or inducing minors to commit violations, forcing one’s materially or spiritually dependent people to commit violations;
d/ Abusing one’s own positions or powers to commit violations;
e/ Abusing circumstances of wars, natural calamities or other particular common grieves to commit violations;
f/ Committing violations while serving criminal sentences or executing decisions on handling of administrative violations;
g/ Continuing to commit administrative violations in spite of the competent persons’ requests for termination of violations;
h/ Shirking liability or concealing administrative violations after committing them.