How to Temporary Suspension Customs Clearance Procedures for Goods Subject to Intellectual Property Rights Protection?

The import and export of counterfeit goods or goods that violate intellectual property rights have been causing huge loss to the intellectual property rights owner.  The government’s process to control such will help utilize the resources in the society and encourage the innovative companies to invest in products in quality, designs, build trademarks… and ensure their intellectual property rights are protected and they could benefit from such. When the owner of property rights scans the market and find the violation of intellectual property rights, they could appoint intellectual property attorney to work with authorities and have proper legal solutions, including requesting the customs authority to suspend the customs clearance.

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As part of the international integration process into world trade, Vietnam has gradually issued legal instruments to strengthen tools for managing the potential violations especially in intellectual property areas.

On March 6, 2020, the Ministry of Finance issued Circular no. 13/2020/TT-BTC on amending and supplementing a number of articles of Circular no. 13/2015/TT-BTC dated January 30, 2015 providing for inspect, supervise and temporarily suspend customs procedures for exports and imports subject to intellectual property protection; controlling counterfeit goods and goods infringing intellectual propertyrights.

Under point b, clause 1, Article 1 of Circular no. 13/2020/NTT-BTC, customs control of counterfeit goods and goods infringing intellectual property rights means the application of professional customs control measures or/and other professional measures implemented by customs authority according to the provisions of law to prevent and combat smuggling and illegal transportation of goods being counterfeit goods and goods infringing intellectual property rights in the geographical areas of customs operation. Compared with the provisions of Circular no. 13/2015/TT-BTC, the scope of customs control for counterfeit goods and goods infringing intellectual property rights is expanded, not only borders, non-tariff areas.

The Ministry of Finance supplements cases of refusal to receive applications for inspection and supervision of export and import goods that require protection of intellectual property rights of organizations or individuals, specifically: may refuse to accept applications if additional submissions are within 10 working days from the date of the notice of additional submission.

Besides, amending and supplementing regulations on handling of goods showing signs of intellectual property rights infringement. Within 03 working days after receiving the notice of goods showing signs of infringement of intellectual property rights of the customs office, if the intellectual property right holder or the lawfully authorized person does not have the request for suspension of customs procedures is completed, the customs authority will continue to carry out the customs procedures. In case the intellectual property right owner or the lawfully authorized person does not have a written request for temporary suspension of customs procedures but pays a sum of money or guarantee documents as prescribed or have a written request for temporary suspension of customs procedures but do not pay a sum of money or guarantee documents as prescribed, the Sub-department of Customs where customs procedures are carried out does not suspend customs procedures for goods, unless it is detected counterfeit goods on intellectual property. In contrast, if the intellectual property rights owner of goods requests the suspension of customs procedures, the Sub-department of Customs where the customs procedures are carried out shall issue a decision on suspension of customs procedures. In cases where there are sufficient grounds to identify goods infringing upon intellectual property rights, the Director of the Customs Sub-Department shall consider deciding to immediately apply handling measures prescribed in Articles 214 and 215 of the Law on Intellectual Property 2005, at the same time, coordinate with control forces at all levels to collect information, investigate and verify goods to handle according to regulations. The time limit for suspension of customs procedures is 10 working days from the date the customs authority issues a decision to suspend customs procedures. In addition, different from the previous regulations, the person who requests for temporary suspension of customs procedures may extend the time limit (if there is a plausible reason) if paying additional money or guarantee documents, the extended time limit; the extended period shall not exceed 10 working days from the expiry of the suspension period as prescribed in clause 8, Article 1 of Circular no. 05/2020/TT-BTC.

Regulations on suspension of customs procedures for detecting signs of infringement of intellectual property rights are provisions to protect goods that have been registered for intellectual property rights. Intellectual property is the most valuable type of intangible asset to every enterprise. When an enterprise has trademarks, inventions, industrial designs… applied to products that are registered for intellectual property rights, these intellectual property objects will become the property of the enterprise, and giving the company a lot of advantages on monopoly rights and protection policies and such should be protected properly with the help of intellectual property lawyers.

This Circular is effective from April 20, 2020. Organizations and individuals exporting or importing goods; Organizations and individuals that are owners of intellectual property rights, owners of genuine goods which are counterfeited or lawful representatives of owners need to follow and comply with the provisions of law to know and protect their rights.

ANT Lawyers - A Law firm in Vietnam is supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property rights in Vietnam.  We have specialized in the preparation and registration of patents, trademarks and designs for our clients.

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Is intellectual property really that important?

Intellectual property protection is extremely important. When it comes to protecting IP two areas of protection should be taken in account: 1) protecting your liability and 2) protecting your intellectual property (IP).

Liabilities like the terms and conditions prevent claims initiated by people who use your website. The other liability known as privacy policy is legally required for websites that collect user data. Protecting your IP requires confidentiality agreement. Every employee, developers and programmers should sign a non-disclosure agreement in order to avoid disclosure of trade secrets, in case they are involved in your website development. IP assignment agreement is also essential for the protection of IP when you hire people to work on your website.

Intellectual Properties Rights in Vietnam

Among the assets of IP protection a patent is the most expensive and complex form of protection. A patent helps to prevent others from exploiting the owner’s invention. It is a territorial right exclusively applicable in the area or geographical region where a patent has been granted. It is highly recommended that you consult a patent attorney if you’re going to head in this direction.

IP protection asset like a trademark is a sign that can distinguish a good or a service of an enterprise from the other. It is protected by IP rights registered with a national or regional office of emblem, in order to confer an exclusive right to use the registered logo.

Copyright is the legal term that describes the rights of the creators on their creative inventions that could be a design, a painting; literary work etc. in simple words copyright protects the work of a creator.

Source: Quora.com

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How Can IPR Holder Protect Intellectual Property Rights?

An intellectual property right holder shall have the right to apply the following measures to protect the intellectual property rights of such holder in Vietnam:

To apply technological measures to prevent acts of infringement of its intellectual property rights;

To request any organization or individual who commits an act of infringement of the intellectual property rights of the holder to terminate such act, make a public apology or rectification, and pay damages;

To request the competent State body to deal with acts of infringement of its intellectual propertyrights in accordance with the provisions of this Law and other relevant laws;

To initiate a lawsuit at a court or a claim at an arbitration centre to protect the legitimate rights and interests of the holder.

Organizations and individuals who suffer loss and damage caused by acts of infringement of intellectual property rights or who discover acts of infringement of intellectual property rights which cause loss and damage to consumers or society shall have the right to request the competent State body to deal with such acts in accordance with the provisions of this Law and other relevant laws.

Organizations and individuals who suffer loss and damage or who are likely to suffer loss and damage caused by acts of unfair competition shall have the right to request the competent State body to apply the civil remedies stipulated of IP Law and the administrative remedies stipulated in the law on competition.

Our Intellectual Property Lawyers in Vietnam always follow development in IP Laws to provide client with update

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What are Remedies of Intellectual Property Infringement in Vietnam?

Any organization or individual who commits an act of infringementof the intellectual property rights of another organization or individual shall, depending upon the nature and seriousness of such infringement, be dealt with by the application of civil, administrative or criminal remedies.

Intellectual Properties Rights in Vietnam

In necessary cases, the competent State body may apply provisional urgent measures, measures to control intellectual property related imports and exports, preventive measures and measures to secure enforcement of an administrative penalty in accordance with the provisions of this Law and other relevant laws.

Our Intellectual Property lawyers in Vietnam always follow changes in IP Law to provide clients with update.

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WHAT IS TRADEMARK REGISTRATION?

Trademark Registration

In common language trademark is the identity of the business. General public and people in connection with the trade identifies with trade mark the origin of the goods and services. It could be name, logo, symbols, device or a combination of them.

Register trademark in Vietnam 

ADVANTAGE

If you believe your registered trademark is being infringed, it is easy to establish your right to it in court. If you haven’t registered the word, slogan or logo, you would not be able to do so. Particularly in sectors in which piracy is rampant, Trademark Registration is essential.

A trademark is an intangible asset that can be enormously valuable, should your brand succeed. Think of Tide, Nike or McDonald’s. Businesses can earn huge money in royalties through licensing agreements or even transfer ownership to interested parties through assignment agreements.

You would want your customers to identify your products or services with yours only. Registering your trademark is the first step toward ensuring this. The court would then stop any similar words or slogans from being registered.

DOCUMENTS REQUIRED FOR TRADEMARK REGISTRATION

Brand Name & Logo

Information Form

Form TM 48

FAQ

Why we should file for trademark registration?

Filing for Trademark Registration is strongly advised as it is first the first step towards protecting the identity of your business. It establishes your claim of ownership of that mark and gives you the exclusive right to use the mark on or in connection with the trade or provision of services for which the mark has been filed.

What are the different types of trademark?

Now, due to recent changes we have only five categorisations at the time of making trademark application. These are:

1. Word Mark

2. Logo

3. Device Mark

4. Small Mark

5. Taste mark

Who can file Trademark application?

Any person who claims to be the owner of a trademark, he/she needs to submit the application mentioning the related goods and services associated with the company.

What is the difference between trademark registration and copyright registration for logo?

A logo can be protected both under the Trade Marks Act and Copyrights Act. TM Registration enables you to obtain protection for the brand name and also provides certain amount of protection to the manner in which the trademark is represented. However, if you need exclusivity for the representation of your trademark or logo, a copyright registration is strongly recommended. Copyright registration does not however offer any protection for the brand name.

What is the validity of a trademark registration?

Once the trademark is registered, it is valid for a period of 10 years from the date of application. The registration can then be renewed indefinitely as long as the renewal fees are paid every 10 years.

How long does it take to register a trademark?

Registration of Trademark is a lengthy process and it takes around 18-24 months to obtain registration in a straight-forward case, without any objections or oppositions. However, the trademark application number is usually issued within one or 2 days after filing.

Can I use the ® symbol?

You may use the ® (Registered symbol) next to your trademark once your trademark is registered and registration certificate is issued. Kindly note that it is an offence, with penalty, to falsely claim that your trademark is registered. Till the registration is obtained, you can represent your trademark along with the letters TM to indicate that you claim rights over your trademark.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers IP Practice or contact our Intellectual Property Lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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Can I create a brand name that contains another brand name?

I’ll echo what others are saying—this is a bad plan. An established brand name is going to have trademark protections and will have no problem proving that they were already situated in the market long before you. Trademark law relies heavily on what the consumer thinks. If a consumer I confused by your brand name then it will only lead to problems. 

Register trademark in Vietnam

Your best option is to create a unique brand name. It may take a little more time and thought, but it’s possible.

If you have more questions about IP law, then you should consult an attorney. ANTLawyers.vn can put you in touch with a seasoned Intellectual Property lawyers in Vietnam that can help you with the process of trademarking your own brand name. Check out our website and get in touch if you’d like to set up a consultation.

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What is "intellectual property"?

Intellectual property refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

Intellectual property rights are the rights given to persons over these creations. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. IP is protected in law by patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create.

Infringements of intellectual property rights in Vietnam

Have a look at some of the most common forms of intellectual property protected bylegal provisions, along with their unique characteristics

Trademark

•           Applies to: Words, logos, slogans

•           Applicant: Business owners

•           Validity: Indefinite, but to be renewed every 10 years

•           Ownership without registration? Limited Rights for unregistered Trademark holders

Copyright

•           Applies to: Photographs, movies, music, software code

•           Applicant: Artists & creative professionals, primarily but anyone can apply

•           Validity: Lifetime of the author, plus 60 years

•           Ownership without registration? Yes, but with qualifications. Limited Rights.

Patent

•           Applies to: Inventions & ideas

•           Applicant: Inventors & designers

•           Validity: 20 years

•           Ownership without registration? No

Provisional Patent

•           Applies to: Inventions & ideas

•           Applicant: Inventors & designers

•           Validity: 1 Year

•           Ownership without registration? No

Other than these three* primary types, Trade Secrets are also a form of intellectual property. What are those? Trade secrets typically rely on private measures to be protected rather than state action. A trade secret is any information that helps make the operation and functioning of a business or any other enterprise smoother. The secret maybe a formula, process of manufacturing, list of customers or a pattern of machines. An intellectual work is not a trade secret if it is generally known within the industry, published in journals, books, etc.

Businesses and enterprises usually ask new employees to sign a contract to safeguard their trade secrets before letting them join. However, anon-disclosure clause may be added to the contract whereby the employee is not supposed to ‘disclose’, reveal or share any of the company’s trade secrets.

*Provisional patent serves as a preliminary to the permanent patent, and one must apply for a permanent patent grant within 12 months of applying for a provisional patent.

If you’re looking to read more about intellectual property then head to the Answers page on the website ANTLawyers.vn. Also, we have pre-vetted, experienced Intellectual Property Lawyers in Vietnam available to complete any IP work you need done for an affordable price. Good luck!

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Patent Prosecution Highway Mechanism Between Vietnam and Japan

First pilot program between Vietnam National Office of Intellectual Property (NOIP) and Japanese Patent Office (JPO)

NOIP and JPO have jointly undertaken the first Pilot Patent Prosecution Highway program (“PPH”) since 01^stApr, 2016.

According to this bilateral PPH, the patent application filed at JPO (previously filed at NOIP) falling into one of the three following cases:

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(i)     An application which validly claims for priority under the Paris Convention on the basis of NOIP application(s), or

(ii)     A PCT national phase application to Japan without priority claim, or

(iii)   An application which validly claims for priority under the Paris Convention to the PCT application(s) without priority claim.

And meeting other conditions regulated in Procedures guidance to file a request to JPO for PPH program between JPO and NOIP (“Procedures”), the applicant shall be entitled to request JPO to fast prosecute the application on the basis of providing research and evaluation results of NOIP and other relevant documents to JPO for references.

For the patent application filed at NOIP (previously submitted to JPO) falling into one of the three following cases:

(i)     An application which validly claims for priority under the Paris Convention on the basis of JPO application(s), or

(ii)     A PCT nationalphase application to Vietnam without priority claims and this PCT submitted to JPO as an international application receiving agency (applications’ number initiating with PCT/JP hereby referred to as “PCT/JP applications”), or

(iii) An application claims for priority under the Paris Convention on the basis of PCT/JP application(s) without priority claims;

And meeting other conditions regulated in the Procedures, the applicant shall be entitled to request NOIP to fast prosecute the application on the basis of providing research and evaluation results of JPO and other relevant documents to NOIP for references. The duration of the PPH program shall be expired by the date of March 31^st, 2019.

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What is distinction between registered trademark and unregistered trademark?

Registered Trademark

A registered trademark is one in which the proprietor of the marks files an application before the Trademarks Registery in the relevant class and is granted registration by the Trademarks Registry. To get registration, the applicant needs to show to the Registry that it's distinguishable from others and creates a unique identity for the product. Once Registered, a trademark gets protection under the Trademarks Act and the proprietor can sue any party using his trademark for infringement and can also claim damages. When the trademark is applied, the proprietor can add (TM) written in a small font on the upper right hand corner of the mark. Once Registered, (R) can be added in place of TM.

Register trademark in Vietnam

Unregistered Trademark

An unregistered trademark is one which is not registered by the Trademarks Registry. It may be a case of pending for registration or it may be a case where the proprietor has not filed any application for registration of trademark. There are cases where some proprietors use trademarks which are not capable of registration and they decide not to apply. There are also cases which which the proprietor decides to use a trademark which is deceptively similar to a registered trademark and the proprietor knows that it is almost impossible to get registration. In some cases, proprietor doesn't apply for registration due to ignorance of IP laws.

An unregistered trademark doesn't have much protection under trademarks act. The proprietor can only sue a third party for passing off and not infringement. The proprietor can also not stop any other party from using the same mark. In short the proprietor doesn't get any statutory protection but gets only some common law rights.

One can't use (R) with an unregistered trademark.

ANT Lawyers is supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property in Vietnam.  We have specialized in the preparation and registration of patents, trademarks and designs for our clients.

We are representing and advising clients being multinationals, inventors, global partner law firms serving their clients in IP works in Vietnam.

To learn more about ANT Lawyers IP Practice or contact our Intellectual Property Lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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Who benefits from intellectual property laws?

The traditional economic argument for patenting is that since innovation is a highly risky endeavor and the benefits to society are often greater than the benefits to the innovator, if filled with rational actors, society would otherwise underinvest in innovation. In addition, if the innovator keeps her invention secret then it is difficult for others to benefit from this information and make further innovations. So the solution offered by patent policy is to give the innovator monopoly profits for a period of time in exchange for putting the information behind the patent into the pubic domain.  There are other methods for encouraging innovation, including R&D tax credits, subsidies, government procurement, or prizes for innovation.

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Arora and coauthors (2008) find that patents stimulate R&D across a wide range of manufacturing industries. Moser (2005) finds that countries without patent protection tend to concentrate their innovation in industries where trade secrets are most effective, so patenting spreads out the distribution of innovative activity. However, she also concludes that for developing countries creating a patent system may not be an optimal solution initially.

Generally speaking, IP law favors creators. In most developed nations, it is possible for private litigants to prevail in court when substantive claims are made. There is a long history of cases decided for the "little guy".

Corporate entities may try to stall such proceedings or to overwhelm claimants, but well documented IP rights are often upheld or settled for the benefit of the creator.

Without such laws, we would be awash in a sea of piracy. We would be left only with trade secrets as our sole protection which would make production costs skyrocket, or keep artists and trade entities relatively unknown and mired in litigation.

This is not to say that all use of IP law is fair to creators and consumers. Knowledgable artists will be among the first to point to "public domain" as a key and critical part of IP law which is being usurped by corporations in the USA and possibly globally. Public domain is built on a premise that at some point, creations become a part of the cultural fabric.

The Micky Mouse character known as "Steamboat Willie" is often cited as central to this debate. As the film short was about to enter public domain American copyright protections were extended to protect this Walt Disney property. However a viable argument can and is often made that Disney can protect its interests through Trademark law, while allowing the world access to the original production as a part of global culture through public domain.

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Can an inventor and a company share patent rights?

Patent rights can certainly be shared between a company and an inventor. In fact, patent rights can be shared by any combination of people and/or entities you can imagine. I’ve attempted to answer.

Who initially owns patent rights?

Under United States patent law, the inventor (or inventors) of a patent own the patent rights unless and until they assign the patent to another person or entity. This means that in the absence of a transfer of rights, the inventor/inventors are the sole owner of the patent rights.

How are patent rights transferred?

Patent rights can only be transferred through a written document. In other words, an oral agreement will not transfer any rights. This requirement means that it is critical to create written agreements for all transfers of patent rights.

How can an inventor transfer some rights to a company?

A patent owner (including an inventor) can transfer some or all of the rights that come with a patent. A patent creates a number of rights, and you can transfer some or all of them via a license or assignment of rights. You also can create a contract that is separate from a patent transfer that entitles someone else to a portion of any revenue created through an invention.

Are there risks of joint ownership?

One issue to consider is that having multiple owners of a patent creates a number of potential risks. One of the rights that comes with a patent is the right to prevent other people from making, using, selling, offering to sell, or import the invention. If a patent is owned by multiple parties, ANY of the owners can provide a license to a third party that provides this right. In other words, a single owner could grant rights to a third party to make, use, sell, offer to sell, or import the invention.

Before you decide how patent rights will be owned and before agreeing to any transfers, you should consult with an intellectual property lawyer who can help you create an overall intellectual property plan. If you’re interested in learning how to create an intellectual property plan, you can contact our IP lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

Source: Quora

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