Issues Related to Competition Laws
Vietnam
The Law No.50/2005/QH11 on Intellectual Property dated November 29, 2005 amended by the Law No. 36/2009/QH12 provides a specific provision on competiton issues, particularly:
Article 4.4 of the Law No. 50/2005/QH11 amended by Article 4.4 of the Law No. 36/2009/QH12: Interpretation of terms
In this Law, the following terms shall be construed as follows:
4. Industrial property rights means rights of organizations and individuals to inventions, industrial designs, layout-designs of semiconductor integrated circuits, trade secrets, marks, trade names, geographical indications and trade secrets they have created or own, and the right to repression of unfair competition.
Article 6. Grounds for the generation and establishment of intellectual property rights
3. Industrial property rights shall be established as follows:
(d) The right to prevent unfair competition shall be established on the basis of competitive activities in business.
Article 130. Acts of unfair competition
1. The following acts shall be deemed to be acts of unfair competition:
(a) Using commercial indications to cause confusion as to business entities, business activities or commercial origin of goods or services;
(b) Using commercial indications to cause confusion as to the origin, production method, utilities, quality, quantity or other characteristics of goods or services; or as to the conditions for provision of goods or services;
(c) Using marks protected in a country which is a contracting party to a treaty of which the Socialist Republic of Vietnam is a member and under which representatives or agents of owners of such marks are prohibited from using such marks, if users are representatives or agents of the mark owners and such use is neither consented to by the mark owners nor justified;
(d) Registering or possessing the right to use or using domain names identical with, or confusingly similar to, protected trade names or marks of others, or geographical indications without having the right to use, for the purpose of possessing such domain name, benefiting from or prejudicing the reputation and popularity of the respective mark, trade name or geographical indication.
Article 145. Grounds for compulsory licensing of inventions
1. In the following cases, the right to use an invention may be licensed to another organization or individual pursuant to a decision of the competent State body defined in clause 1 of article 147 of this Law without permission from the holder of the exclusive right to use such invention:
(d) Where the holder of the exclusive right to use such invention is deemed to have performed anti-competitive practices prohibited by the law on competition.
Article 146. Conditions limiting the right to use inventions compulsorily licensed pursuant to a decision
1. The right to use an invention licensed pursuant to a decision of a competent State body must comply with the following conditions:
(b) Such licensed use right is only limited to a scope and duration sufficient to achieve the licensing objectives, and largely for the domestic market, except for the case stipulated in clause 1(d) of article 145 of this Law. For an invention in semi-conducting technology, licensing shall be only for public and non-commercial purposes or for dealing with anti-competitive practices prohibited by the law on competition.
Article 195. Bases and conditions for compulsory licensing of plant varieties
1. In the following cases, the rights to use a plant variety may be licensed to another organization or individual pursuant to a decision of the competent State body defined in clause 1 of article 196 of this Law without permission from the protection certificate holder or his or her exclusive licensee (hereinafter referred to as the holder of the exclusive right to use the plant variety):
(c) The holder of the exclusive right to use such plant variety is deemed to have conducted anti- competitive practices prohibited by the law on competition.
Article 198. Right to self-protection
3. 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 in article 202 of this Law and the administrative remedies stipulated in the law on competition.
Article 203. Burden of proof of litigants9
3. The plaintiff shall bear the burden of proving acts of infringement of intellectual property rights or acts of unfair competition.
Article 211.3 of the Law No. 50/2005/QH11 amended by Article 27.3 of the Law No. 36/2009/QH12: Acts of infringement of industrial property rights which shall be subject to administrative penalties
3. Organizations and individuals that commit acts of unfair competition in intellectual property shall be administratively sanctioned under the competition law."
Article 220.4 of the Law No. 50/2005/QH11 amended by Article 30.4 of the Law No. 36/2009/QH12 relating to Transitional provisions
4. Trade secrets and trade names which existed and were protected pursuant to Decree No. 54-2000- ND-CP of the Government dated 3 October 2000 on protection of industrial property rights with respect to trade secrets, geographical instructions and trade names and protection of rights to fight against unfair competition relating to industrial property shall continue to be protected under this Law.