In order to determine decrease in incomes or profits of aggrieved persons, it is necessary to determine whether or not they earn incomes or profits before infringements are committed.
a) Incomes or profits include:
a.1. Incomes or profits earned by aggrieved persons from the direct use and exploitation of intellectual property objects.
For example: The owner of an invention manufactures patented products in accordance with Point a, Clause 1, Article 124 of Vietnam IP Law and sell them for profits.
a.2. Incomes or profits earned by aggrieved persons from the lease of infringed intellectual property objects (original cinematographic works or computer programs or copies thereof).
For example: The holder of copyright to a cinematographic work or a computer program exercises the economic right provided for at Point f, Clause 1, Article 20 of Vietnam IP Law by leasing the original cinematographic work or computer program or copies thereof and receiving rents or other physical benefits from organizations and individuals renting that cinematographic work or computer program.
a.3. Incomes or profits earned by aggrieved persons from the licensing of intellectual property objects.
For example: The owner of an invention signs a contract on licensing of that invention to another individual or organization and receives a licensing payment as agreed in the contract.
b) Based on determined incomes or profits of aggrieved persons, it is necessary to determine the level of decrease in their incomes or profits on one of the bases specified in Clause 2, Article 18 of Decree No. 105/2006/ND-CP.
For example: If incomes or profits are earned from the direct use or exploitation of IPR, levels of actual incomes or profits earned before and after infringing acts are committed must be compared in order to clearly identify the level of income or profit decrease. If an aggrieved person’s income or profit amount earned after an infringement is committed is smaller than his/her income or profit amount earned before the infringement is committed, the difference between these amounts is the aggrieved person’s actual income or profit decrease.
Upon determination of incomes or profits of aggrieved persons in Vietnam, it is necessary to clearly identify objective factors which affect the increase or decrease of incomes or profits of aggrieved persons but are not related to the infringements of IPRs in order to ensure the correct determination of the aggrieved persons’ actual income or profit decreases.
Any case in which an infringement of IPRs in Vietnam is actually committed and the determination of damage shows that the aggrieved party’s income or profit amounts earned after the infringement is committed do not decrease compared to those earned before the infringement but are still smaller than those they should actually have earned in the absence of the infringement would also be considered a case of income or profit decrease.
For example: In 2004, Company A invested in a new technological line to manufacture building steel bearing the mark “TN” which is sold well on the construction market. Based on received product orders, Company A could sell up to 200,000 tons of steel “TN” and earn a turnover of VND 10 billion and a profit VND 2 billion (100). Company B illegally affixed the mark “TN” of Company A on its steel products and sold them on the market, causing a loss of 20 of Company A’s market share. Consequently, Company A could not sell 40,000 tons of steel and suffered a decrease of 20 in both expected turnover and profit (VND 400 million). Though Company A’s profit amount earned in 2006 saw no decrease compared to that earned in 2005, its expected profit amount actually decreased by VND 40 million due to Company B’s infringement. This decrease is therefore considered a loss of Company A.
1.6. Losses in business opportunities are determined under Article 19 of Decree No. 105/ND-CP.
Question & Answer for Joint Circular No. 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT&DL-BKH&CN-BTP of April 3, 2008, Guiding the Application of a Number of Legal Provisions to the Settlement of Disputes over intellectual Property Rights at People’s Courts
Question 1: Disputes over intellectual property rights which fall under the handling competence of people’s courts in Vietnam
- Which copyright disputes in Vietnam can be settled by the Vietnamese Courts?
- Which related right disputes in Vietnam can be settled by the Vietnamese Courts?
- Which industrial property right disputes in Vietnam can be settled by the Vietnamese Courts?
Question 2: Right to institute civil lawsuits on IPR in Vietnam
- Could you tell us who has right to institute civil lawsuits over copyright or related rights in Vietnam?
- Could you tell us who has right to institute civil lawsuits over industrial property rights in Vietnam?
Question 3: Conditions on institution of civil lawsuits over intellectual property rights in Vietnam
- Could you tell us conditions on institution of a civil lawsuit over copyright or related rights in Vietnam?
- Could you tell us conditions on institution of a civil lawsuit over industrial property rights in Vietnam?
Question 4: Application of law: IP Law of Vietnam or other Laws?
- What law shall be applied if there is a difference between Vietnam IP Law and other laws?
- Application of domestic legal documents in Vietnam
- Application of International Treaties
Question 6: Intellectual property assessment in Vietnam – Vietnam Intellectual property assessment
- How can the concerned parties in a civil proceedings request Intellectual property assessment in Vietnam?
Question 7: Claims for compensations for damage upon infringing Intellectual Property Rights in Vietnam
- If we file a civil lawsuit in Vietnam concerning IPR infringement, how can we request the Vietnamese Court to award a compensatory damage?
- How can the Vietnamese Courts determine the losses in business opportunities in an IPR related lawsuit?
Question 8: Bases for determination of compensations to be paid for damage caused by infringements of IPRs in Vietnam
- How can the Vietnamese courts determine the compensable damages caused by IPR infringement in Vietnam?
- How can the Vietnamese Court determine the spiritual damage that the infringer must indemnify the IPR holder in an IPR related lawsuit?
Question 9: Provisional urgent measures in Vietnam
- Who has rights to request provisional urgent measures (injunctive relief) under civil measure in Vietnam?
- What injunctive relief (provisional urgent measures) can be applied under civil measure in Vietnam?
- Whether the requester of provisional urgent measure in Vietnam has to deposit a security?
Question 10: The right and burden of proof of involved parties in a civil proceedings in Vietnam
Question 11: Court rulings on application of civil remedies in Vietnam (Article 202 of Vietnam Intellectual Property Law)
Question 12: Coordination in settling IPR disputes