Whether the requester of provisional urgent measure in Vietnam has to deposit a security?

Depositing a security prior to requesting the Court to apply provisional urgent measure in Vietnam is provided in Article 208 of the Vietnam IP Law. Accordingly, we wish to convey the following for your consideration:

3.1. Depending on their requests for application of provisional urgent measures, requesters shall supply to the Vietnamese Courts evidence specified in Clause 2, Article 203 of Vietnam IP Law and Clause 1, Article 117 of Vietnam Civil Procedure Code to prove the necessity to apply those provisional urgent measures.

3.2. Provision of security

Persons who request the Vietnamese Courts to apply provisional urgent measures, regardless of whether these measures are specified in Vietnam IP Law or Vietnam Civil Procedure Code, shall provide corresponding security. Courts shall order these persons to provide the following security.

a) Security for the requested application of provisional urgent measures specified in Clause 1, Article 207 of Vietnam IP Law.

A requester of application of a provisional urgent measure in Vietnam shall deposit a security in one of the forms specified in Clause 2, Article 208 of Vietnam IP Law, specifically as follows:

a.1) A sum of money equal to 20 of the value of the goods subject to the application of provisional urgent measures.

The Vietnamese court shall ask the requester of application of a provisional urgent measure to clearly state the quantity and type of goods subject to the provisional urgent measure, the estimated value of such goods for determining the value of goods subject to the provisional urgent measure which serves as a basis for fixing the security sum of money.

The value of goods subject to the provisional urgent measure in Vietnam is determined at the time the infringement of IPR is committed and on the bases arranged in the priority order specified in Clause 2, Article 28 of Decree No. 105/2006/ND-CP.

If it is impossible to determine the value of goods subject to the provisional urgent measures in Vietnam (after all necessary methods such as value estimation, price appraisal and valuation are applied), the Vietnamese Court shall decide on the security deposit of at least VND 20 million. However, attention should be paid to the fact that Point a, Clause 2, Article 208 of Vietnam IP Law specifies only the minimum level of the security sum of money for cases in which it is impossible to determine the value of goods subject to the provisional urgent measures. Therefore, if the Vietnamese Court, through estimation and temporary calculation and study of circumstances of a case, believes that possible actual damage can exceed the specified minimum security of VND 20 million, it may rule on a security sum of money of more than VND 20 million to be paid by the requester of application of provisional urgent measures, depending on each case.

a.2) A guarantee deed issued by a bank in Vietnam or another credit institution (regardless of whether the guarantee deed issued by a domestic or foreign bank or credit institution valued at equal to 20 of the value of goods subject to provisional urgent measures or at least VND 20 million). Guarantee deeds may take the form of guarantee letters or guarantee contracts established under the Vietnamese law, unless otherwise provided for by the Vietnamese law.

b) Provision of security in the case of application of provisional urgent measures specified in Clause 2, Article 207 of Vietnam IP Law.

Under Clause 2, Article 207 of Vietnam IP Law, rights holders may request the Vietnamese Courts to apply other provisional urgent measures specified in Vietnam Civil Procedure Code. Therefore, when deciding on the application of one of provisional urgent measures specified in Article 102 of Vietnam Civil Procedure Code, the Vietnamese Courts shall base themselves on the provisions of Article 102 of Vietnam Civil Procedure Code and the guidance in Section 8 of Resolution No. 02/2005/NQ-HDTP of April 27, 2005, of the Vietnam Judges’ Council of Vietnam Supreme People’s Court, guiding the implementation of a number of provisions of Vietnam Civil Procedure Code’s Chapter VIII on Provisional Urgent Measures, to identify specific cases in which security is required before ordering requesters of application of provisional urgent measures in Vietnam to provide such security.

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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