How can the Vietnamese Courts determine the losses in business opportunities in an IPR related lawsuit?

A business opportunity means a favorable circumstance or an actual possibility of directly using or exploiting, leasing, licensing or assigning IP objects by intellectual property rights holders to other parties for profit.

a/ Business opportunities in Vietnam include:

a.1/ Actual possibility of directly using or exploiting IP objects in business. More specifically, the direct use or exploitation of an IP object in business (on the market for profit) by a right holder may become possible and realistic under certain conditions.

a.2/ Actual possibility of leasing IP objects (original cinematographic works or computer programs or copies thereof) to other persons. More specifically, a right holder can lease an IP object to another individual or organization and has actually negotiated and agreed with that individual or organization on principal terms of a contract on lease of the object. Such a contract will be signed and performed under normal conditions if there is no infringement of a third party.

a.3/ Actual possibility of licensing or assigning IP objects to other persons. More specifically, a right holder receives an order after making negotiations and reaching an agreement with a partner on principal terms of a contract. Such a contract will be signed and performed if there is no infringement of a third party.

a.4/ Other business opportunities the loss of which is directly caused by an infringement. Opportunities mentioned in this case include opportunities of business entities to negotiate with partners, to conduct business or enter into cooperation in investment, marketing, advertisement or trade promotion through international exhibitions or displays, etc., which are lost because their intellectual property objects are appropriated by others.

b/ A loss in business opportunities means loss of the in-cash value of the income that the aggrieved person would have achieved in any of the cases referred to in Clause 1, Article 19 of Decree No. 105/2006/ND-CP and the guidance at Point a of this Item 1.6, if no infringement had been committed.

When considering claims for compensations for loss in business opportunities, Vietnamese Courts shall ask aggrieved persons to clearly state and prove their lost business opportunities, which case they fall into and their in-cash value for consideration and decision.

1.7. Reasonable expenses for prevention and remedy of damage include expenses specified in Article 20 of Decree No. 105/2006/ND-CP

INDEX:

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

Question 2: Right to institute civil lawsuits on IPR in Vietnam

Question 3: Conditions on institution of civil lawsuits over intellectual property rights in Vietnam

Question 4: Application of law: IP Law of Vietnam or other Laws?

Question 5: Application of transitional provisions to settling disputes over intellectual property rights in Vietnam

Question 6: Intellectual property assessment in Vietnam – Vietnam Intellectual property assessment

Question 7: Claims for compensations for damage upon infringing Intellectual Property Rights in Vietnam

Question 8: Bases for determination of compensations to be paid for damage caused by infringements of IPRs in Vietnam

Question 9: Provisional urgent measures in Vietnam

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

How do the Vietnamese enforcement authorities coordinate to handle the IPR disputes?

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