An actual loss is regarded as having occurred when all of the following bases exist:
a) Physical or spiritual benefit is real and belongs to the aggrieved persons.
Physical or spiritual benefit is the outcome (product) of IPR and the aggrieved person is entitled to that physical or spiritual benefit.
b) The aggrieved person could achieve that physical or spiritual benefit.
The aggrieved person could achieve (collect) that physical or spiritual benefit under certain conditions, provided no infringement is committed.
c) There is a decrease in or loss of the benefit of the aggrieved person after the intellectual property right infringement is committed as compared to the possibility of achieving that benefit when such infringement does not happen and it constitutes the direct cause of such decrease in or loss of that benefit, specifically as follows:
Before an intellectual property right infringement happens, the aggrieved person has already achieved the physical or spiritual benefit. Upon the commission of the infringement, the aggrieved person suffers from a decrease in or loss of the previously achieved benefit, and there exists a causal relation between the infringement and the benefit decrease or loss. The benefit decrease or loss is the inevitable consequence of the infringement and vice versa the infringement is the direct cause of the benefit decrease or loss.
1.4. Losses of property are determined under Article 17 of Vietnam Decree No. 105/2006/ND-CP
When aggrieved persons make claims for compensations for losses of property, they shall clearly state the in-cash value of infringed IP objects at the time of infringement and bases for determination of this value.
For example: In case of a claim for compensation for a loss of property caused by a mark infringement in Vietnam, it is necessary to clearly state the value of the mark at the time of infringement and bases for determination of the mark value.
1.5. Decrease in incomes or profits is determined under Article 18 of Decree No. 105/2006/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