Common violations of industrial property rights

We often hear about intellectual property law (IP), but not everyone can know specifically and thoroughly about the law to avoid acts of infringement of industrial property rights. As a result, many individuals and organizations unintentionally (or intentionally) build brand, trademark… similar to another brand, trademark.

1. What is intellectual property? What does intellectual property include?

Intellectual property, or sometimes also known as intellectual property, is the creative products of the human mind. It can be anything from literary works, music, computer software to inventions, patents, utility solutions, industrial designs, etc. In which, IP rights include copyright, rights related to copyright, industrial property rights and rights to plant varieties.

This article we will discuss industrial property rights, specifically industrial designs (KDCN), trademarks, and trade names because these are common infringements in the market.

2. Common violations of industrial property rights

• Industrial design (KDCN): According to Clause 12, Article 4 of the 2009 amended Law on Intellectual Property, KDCN is the external appearance of a product expressed by shapes, lines, colors or a combination of these elements. In the market, KDCN is most easily infringed in the fashion industry. Technology products are also one of the objects that are often imitated. However, it is also necessary to note that in the case of bringing goods into a country, it is necessary to see if the KDCN has been registered for protection in that country. If the KDCN is not registered for protection in that country, the product can be exported without any legal problems related to the rights (Industrial Property) of SHCN.

• Trademark: according to Clause 16, Article 4 of the Law on Intellectual Property, amended 2009 amendment, A trademark is a sign used to distinguish goods and services of different organizations and individuals.

  A trademark is protected if it meets the following conditions: It is a visible sign in the form of letters, words, drawings, images (including three-dimensional images or a combination of such elements) expressed in one or more colors; capable of distinguishing the goods and services of the trademark owner from those of other entities. Simply put, a trademark can be an image containing the product name, company logo and the company’s slogan.

• Trade name: According to Clause 16, Article 4 of the 2009 amended Law on Intellectual Property, a trade name is the name of an organization or individual used in business activities to distinguish the business entity bearing that name from other business entities in the same field and business area. The business area specified in this clause is the geographical area where the business entity has partners, customers or has a reputation.

So how are industrial designs, trademarks, and trade names often infringed?

• The lawsuit involves the infringement of a famous trade name between Vincom Group and Vicoland Company (formerly known as Vincon). Business Registration Office No. 2, Hanoi Department of Planning and Investment has issued Notice No. 02/TP-ĐKKD2, requesting Vincon Finance and Real Estate Joint Stock Company (Vincon) to carry out procedures to change the enterprise name.

• Intellectual property rights dispute between the plaintiff, Acecook Vietnam Joint Stock Company (Acecook), and the defendant, Asia Foods Joint Stock Company. VinaAcecook discovered that Asia Foods’ Hao Hang instant noodle product had a similar packaging design to Hao Hao instant noodle product, causing confusion for consumers. Acecook then sent a letter warning Asia Foods about the trademark infringement. Asia Foods Joint Stock Company agreed to stop producing Hao Hang noodles.

3. Legal basis

• Law on Intellectual Property 2005, amended and supplemented in 2009;

• Decree 22/2018/ND-CP guiding the Law on Intellectual Property 2005 and the Law on Intellectual Property 2009 amended on copyright and related rights issued by the Government on February 23, 2018.

4. Penalties for infringement of intellectual property rights

According to the provisions of the Law on Intellectual Property, acts of infringement of intellectual property rights include:

• Infringement of intellectual property rights causing damage to authors, owners, consumers or society;

• Producing, importing, transporting, trading in counterfeit goods regarding intellectual property;

• Producing, importing, transporting, trading in, storing stamps, labels or other items bearing counterfeit trademarks or geographical indications or assign others to perform this act.

According to Article 2 of Decree 99/2013/ND-CP, violations of regulations on management of industrial property activities; or infringement of rights and unfair competition in the field of industrial property, the fine for individuals is 250 million VND, for organizations up to 500 million VND.