Who has rights to request provisional urgent measures (injunctive relief) under civil measure in Vietnam?

In accordance with Article 199 of Law on Intellectual Property (No. 50/2005/QH11 of November 29,2005) (“IP Law 2005”), organizations and individuals that commit acts of infringing upon IPR of other organizations and individuals shall, depending on the nature and seriousness of such infringements, be handled with civil, administrative or criminal measures. In case of necessity, competent state agencies may apply provisional urgent measures, or measures to prevent and secure the administrative sanctioning.

In accordance with Vietnam laws, injunctive relief may be, to some extent, construed similar the “Preventive measures to secure administrative sanctioning” under Article 215 of IP Law 2005, “provisional urgent measure” under Article 206 thru 208 of IP Law 2005, and “provisional emergency measure” under Article 99 thru Article 126 of Civil Procedure Code (No. 24/2004/QH11 of June 15, 2004).

1.1. Intellectual property rights holders may request courts to apply provisional urgent measures upon or after the institution of civil lawsuits over intellectual property rights.

a) If they request the application of provisional urgent measures specified in Articles 206 thru 210 of the Intellectual Property Law, courts shall apply the provisions of these articles of the Intellectual Property Law.

b) If they request the application of provisional urgent measures not specified in the Intellectual Property Law but specified in Chapter VIII of the Civil Code, courts shall apply the provisions of that Chapter of the Civil Code. When intellectual property rights holders request courts to apply one or several provisional urgent measures specified in Article 102 of the Civil Procedure Code, courts shall consider whether or not these requested provisional urgent measures are related to intellectual property rights for appropriate application.

1.2. An intellectual property rights holder may request a court to apply a provisional urgent measure in the cases specified in Clause 1, Article 206 of the Intellectual Property Law, specifically as follows:

a) There exists a danger of irreparable damage to that intellectual property rights holder. The damage is the inevitable consequence of an infringement which is likely to happen and once it is committed, its consequence is irreparable for the intellectual property rights holder unless that provisional urgent measure is applied.

b) Goods suspected of infringing upon intellectual property rights or evidence related to an infringement of intellectual property rights is likely to be dispersed or destroyed unless it is protected in time.

o Disperse means to quickly scatter goods suspected of infringing upon intellectual property rights or evidence related to an infringement of intellectual property rights to many places for hiding;

o Destroy means to deform or to make goods suspected of infringing upon intellectual property rights or evidence related to an infringement of intellectual property rights to disappear without any traces.

1.3. When requesting a court to apply a provisional urgent measure, an IPR holder shall clearly identify the case as specified in Clause 1, Article 206 of the Intellectual Property Law into which his/her request falls. If a written request for the application of a provisional urgent measure is filed together with a petition for the institution of a lawsuit, the petition must be made under Article 164 of the Civil Procedure Code.

1.4. If the contents of a petition for the institution of a lawsuit are sufficient for a Vietnamese Court to determine that the acceptance of the petition and the handling of the case fall under its competence, though some other contents need to be amended or supplemented, that court shall promptly accept and handle the written request for the application of a provisional urgent measure under Clause 3, Article 117 of the Civil Procedure Code and the guidance in Section 6 of Resolution No. 02/2005/NQ-HDTP of April 27, 2005, of the Judges’ Council of the Supreme People’s Court, guiding the implementation of a number of provisions of the Civil Procedure Code’s Chapter VIII on provisional urgent measures. Requests for modification or supplementation of petitions for institution of lawsuits and acceptance of cases for handling must comply with Articles 169 and 171 of the Civil Procedure Code.

Vietnamese Courts competent to issue decisions on the application of provisional urgent measures are those competent to accept petitions for institution of lawsuits and handle cases under Articles 33, 34, 35 and 36 of the Civil Procedure Code and the guidance in Section 1, Part I of Resolution No. 01/2005/NQ-HDTP of March 31, 2005, of the Judges’ Council of the Supreme People’s Court, guiding the implementation of a number of provisions of the Civil Procedure Code’s Part I on general provisions.

1.5. Courts shall decide on the application of provisional urgent measures at the request of intellectual property rights holders before listening to parties subject to those measures.

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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