The right and burden of proof of involved parties in a civil proceedings in Vietnam
Burden of proof is not only borne by the plaintiff, but also the defendant in a civil lawsuit in Vietnam.
1. Civil disputes over IPR in Vietnam constitute a type of civil disputes falling under the handling competence of Vietnam People’s Courts under Vietnam Civil Procedure Code. Plaintiffs and defendants have, therefore, the right and bear the burden of proof under Article 79 of Vietnam Civil Procedure Code and Article 203 of Vietnam IP Law.
1.1. Depending on the special nature of IPR in Vietnam and each specific kind of dispute and claim, plaintiffs enjoy the right and bear the burden of proof in Vietnam as follows:
a) They shall prove that they are IPR holders with one of evidence specified in Clause 2, Article 203 of Vietnam Intellectual Property Law and Article 24 of Decree No. 105/2006/ND-CP.
b) For disputes arising from IPR infringement in Vietnam, to prove that their IPR are infringed upon, they shall supply evidence proving the IPR infringements in Vietnam or acts of unfair competition in Vietnam specified in Clause 3, Article 203 of Viet Nam Intellectual Property Law and Article 25 of Decree No. 105/2006/ND-CP.
c) When determining whether or not the IPR infringements in Vietnam stated by plaintiffs in their petitions for institution of lawsuits exist, Vietnamese Courts shall base themselves on the provisions of Articles 28, 35, 126, 127, 129 and 130 of Vietnam IP Law specifying infringements of copyright, related right and industrial property rights. At the same time, they shall apply the provisions of Articles 5 thru 15 of Chapter II of Decree No. 105/2006/ND-CP to identify infringing elements of IPR in Vietnam. Because IPRs are special rights, in some cases using IPRs is not regarded as infringing upon IPRs. Vietnamese Courts shall therefore base themselves on the provisions of Articles 25, 26, 32 and 33, Clauses 2 and 3 of Article 125, Articles 133 and 134 of Vietnam IP Law to determine whether or not infringements exist, depending on specific IP objects.
1.2. Pursuant to Clause 4, Article 203 of Vietnam IP Law, in lawsuits against infringements in Vietnam of the right to inventions which are production processes, defendants shall bear the burden of proof. Defendants shall prove that their products are produced by processes other than the protected ones in the cases specified at Points and b, Clause 4, Article 203 of the Intellectual Property Law. Courts shall order defendants to produce evidence proving that they have not infringed upon IPRs to plaintiffs’ inventions.
2. Plaintiffs may request the Vietnamese Courts to decide on ordering parties that control evidence to produce such evidence under Clause 5, Article 203 of Vietnam IP Law and Article 94 of Vietnam Civil Procedure Code and the guidance in Section 8, Part IV of Resolution No. 04/2005/NQ-HDTP of September 17, 2005, of the Judges Council of the Supreme People’s Court, guiding the implementation of a number of provisions of the Civil Procedure Code on burden of proof and evidence.
3. Plaintiffs shall prove damage caused to them; produce evidence proving their actual damage (various kinds of damage and losses in each kind of damage), and specifically state bases for determination of compensations for damage under Article 205 of Vietnam IP Law.
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