Beijing. Based on the evidence provided and collected by Party A, the Court ordered G2000 to compensate Mr. Zhao Hua Rmb20 million (US$2.94 million) (http://www.lexfieldlaw.com/templates).
5.2. Authority competent to enforce trademark protection law
Under US law, the competent authorities to handle acts of infringement of trademark rights include:
- Trademark Appeals Board (TTAB) of the USPTO
- Court (federal district court, federal district court, court of appeals of federal district court, supreme court).
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- Law enforcement agencies: US Customs and Border Protection, Federal Bureau of Investigation (FBI), Intelligence agencies, Internal Revenue Service, US Attorney's Office; etc.
Like the US, Japanese law also regulates this issue, including the Japan Industrial Property Mediation Center, Japan Commercial Arbitration, Courts...
According to Chinese law , in addition to the basic legal procedures similar to those in other countries, the Chinese IP Law empowers administrative agencies (China Trademark Administration, Trademark Review and Adjudication Board, courts, customs, etc.) to resolve disputes over prescribed IP. In China, the appellate court will be the final decision-making level.
Like the laws of other countries, English law stipulates that the competent authorities to enforce trademark protection laws include: courts, registration offices, customs offices...
5.3 Necessary measures against violations
Under US law, upon discovery of the above infringements, the trademark owner has the right to:
Request the infringing party or file a lawsuit at a competent court to force the infringing party to stop the infringement, destroy the infringing goods and compensate for damages or apply other measures to prevent infringement;
File a civil lawsuit in a court of competent jurisdiction;
If infringing goods are imported into the United States, the trademark owner may request that the U.S. Customs Service prohibit the release or seize the infringing goods.
In addition to the above self-defense measures, civil lawsuits and border control measures, the most severe protection measure applied to infringements is criminal measures.
US law also provides very specific provisions on the protection of trademark ownership to combat trademark counterfeiting . Although trademark counterfeiting has existed for centuries, it was not until 1946 that the US Congress recognized the seriousness of counterfeiting and enacted laws to protect trademarks. The Lanham Act, 15, USC § 1041 et seq. These laws provided the owners with the opportunity to enforce and protect their trademarks through civil proceedings. This law was amended in 1984 to criminalize trademark counterfeiting and provide more severe penalties for counterfeiters: the Trademark Counterfeiting Act of 1984, 18 USC § 2 320.
Today, two-thirds of U.S. states have enacted laws criminalizing trademark counterfeiting, many of which carry severe penalties, jail terms, and fines for those who commit these crimes.
In addition, trademark owners have a variety of civil remedies to choose from to protect their trademarks. Under current law, businesses have the right to seize counterfeit products, permanently ban the production and sale of such items, remove such items from sale on the Internet, and request monetary damages or file a lawsuit. In the United States, civil lawsuits are always preferred and chosen by parties over punitive measures on behalf of the state.
Federal law enforcement agencies with jurisdiction over trademark counterfeiting: Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE); Federal Bureau of Investigation (FBI); U.S. Postal Service - where the postal service is used to ship counterfeit goods; Intelligence agencies; Bureau of Alcohol, Tobacco and Firearms
and firearms; Internal Revenue Service; U.S. Attorney's Office. In addition, state law enforcement agencies also play an active role in detecting and handling trademark counterfeiting cases, such as local police, state police, local law enforcement agencies, state and local prosecutors, state tax agencies, labor departments, fire departments, etc.
Thus, it can be seen that the civil lawsuit procedure here is conducted quite strictly with strict sanctions, appropriately protecting the rights of the violated party. Therefore, in the United States, civil lawsuits are always preferred and chosen by the parties more than punitive measures in the name of the State.
Under Japanese law , if an infringement of its trademark rights is discovered, the trademark owner may take the following measures to combat the infringement:
- Send recommendation letters;
- Mediation at the Japan Intellectual Property Mediation Center;
- Request the Japan Commercial Arbitration Association to arbitrate;
- File a lawsuit before a competent court.
In case the infringing product is being imported, the owner of the infringed trademark has the right to apply to the customs to stop the import of the infringing goods under the Tariff Law pending settlement.
In case of filing a lawsuit in court, proceeding with settlement or arbitration, it is necessary to have a lawyer to represent and protect the rights of the trademark owner.
A civil case can take 3 to 5 years for the first trial (local court) and 1 to 3 years for subsequent trials. However, the trial time of each case is not the same.
In addition to the legal procedures similar to those in other countries, Chinese law empowers administrative agencies to resolve intellectual property disputes. Therefore, when intellectual property rights violations arise, the parties involved may have
two options: to initiate proceedings before the Court or to request the relevant administrative agencies to resolve the case. The decisions of the administrative agencies can be appealed if the parties concerned are not satisfied with the decision. These regulations are relatively similar to Vietnam.
In China, the Court of Appeal is the final decision-making body. Therefore, a judgment or decision of the court of first instance can be appealed to the next level. If one or both parties are involved in a foreign country, the time limit for filing an appeal is 30 days from the date on which the written judgment or decision of the court is sent to the parties.
The trademark owner shall claim damages. The amount of damages for the infringement of the exclusive right to use the registered trademark shall be calculated on the basis of the profits that the infringer has obtained from the illegal act during the period of infringement or the loss suffered by the infringer due to the infringement during the period of infringement, including the reasonable costs incurred by the infringer to terminate the infringement.
In case it is impossible to determine the profit gained by the infringing party or the damage suffered by the infringing party due to the infringement, the court shall decide to compensate an amount not exceeding 500,000 yuan in accordance with the actual circumstances of the infringement (Article 56 of the Trademark Law of China).
Similar to US law, UK law also stipulates that when detecting the above infringements, the trademark owner has the right to:
Request the infringing party or file a lawsuit at a competent court to force the infringing party to stop the infringement, destroy the infringing goods and compensate for damages or apply other measures to prevent infringement;
File a civil lawsuit at a competent court (Article 16, Article 19 of the Trademark Law)
Older brother);
If infringing goods are imported into the UK, the trademark owner may
request the Customs Authority to prohibit the release or seize such infringing goods (Sections 89 and 90 of the UK Trade Marks Act).
6. Lessons learned for Vietnam
Through studying the legal regulations on trademark protection in the UK, the US, Japan and China, we see that the legal systems on trademark protection in these countries are quite detailed, complete, in line with international standards and have partly promoted the effectiveness in enhancing the creative role of the subjects, creating motivation for development, protecting domestic production, attracting domestic and foreign investment. Based on the above analysis, the author would like to give some lessons for Vietnam as follows:
Firstly , studying the experiences of the UK, US, Japan and China in protecting intellectual property rights for trademarks shows that Vietnam needs to have a flexible mechanism in choosing the form of protection for trademarks.
Second , there must be an effective enforcement mechanism, because in Vietnam the enforcement mechanism has not been completed and has not been fully promoted, as shown by the fact that very few cases are resolved in court, but are mainly resolved in administrative agencies, along with existing regulations that are only in principle and not detailed enough, so the application of sanctions is confused and ineffective. Civil procedures should be considered the main measure, but normal civil relations have been overly administrativeized.
Third , improve the operational efficiency of enforcement organizations . Although Vietnam has many agencies (each agency has many levels: province, district) with the function and authority to handle administrative intellectual property, the professional capacity of this system has not met the actual requirements. Currently, in the courts and other enforcement agencies of intellectual property, there are very few officers trained in this field.
Fourth , enhance the understanding of the whole society on the issue of trademark protection. In Vietnam, the practice of respecting intellectual property rights for trademarks has not yet been established as in the UK and the US. Trademark owners have not proactively protected their rights and assets, but still have a mentality of waiting and relying on others.
into the State. This is still a new field for the majority of state officials and civil servants and almost all enterprises, especially small and medium enterprises. Intellectual property information is one of the weakest links in intellectual property activities, with the information resource capacity in Vietnam on intellectual property being average, but not yet fully exploited.
Fifth , there is a need to supplement and improve the current legal framework on trademark protection in Vietnam. Due to the negative impact of the economic integration process, in reality, not all counterfeit goods and goods that infringe intellectual property are produced in Vietnam, but a large number of such goods are produced abroad and then brought into Vietnam through many channels and in many ways for consumption.
To do that, within the framework of this thesis, the author would like to contribute some initial thoughts on the direction of improvement and recommendations to improve the law on trademark protection.
CHAPTER 3
PROVISIONS OF VIETNAMESE LAW, DIRECTIONS AND RECOMMENDATIONS FOR IMPROVING THE LAW
VIETNAM ON TRADEMARK PROTECTION
1. Provisions of Vietnamese law.
1.1 Basis for considering and accepting applications for trademark registration.
a. Principles for accepting applications for trademark registration
Vietnamese law also has provisions on the first-to-file principle similar to English and Japanese law. Previously, according to the provisions of Clause 1, Article 16 of Decree 63/CP: if two or more entities submit applications for a certificate of protection with the same trademark used for the same type of product or service, then when granted, the certificate of protection will only be granted to the earliest applicant among those applicants.
The limitation here is that the first-to-apply principle only applies to cases where two or more entities apply for the same trademark for the same product. In cases where two or more entities apply for trademarks that are so similar that they are likely to cause confusion among consumers, this principle does not apply.
To overcome that shortcoming, Article 90 of the 2005 Law on Intellectual Property stipulates: in case there are many applications by many different people registering identical or confusingly similar trademarks for identical or similar products or services, a protection certificate can only be granted to a valid application with the earliest priority date or filing date among the applications that meet the conditions for being granted a protection certificate.
The solution of the 2005 Intellectual Property Law is reasonable because according to the theory and practice of applying trademark law, identical or confusingly similar trademarks are resolved in the same way to protect the legitimate owner as well as protect the interests of consumers. This is also the solution that has been recognized in the laws of many countries such as Japan, etc.
Another issue raised here is that in the case where there are many applications that meet the conditions for being granted a protection certificate and have the same priority date or earliest filing date, a protection certificate can only be granted to one application among those applications upon agreement of all applicants; if no agreement is reached, all applications will be refused a protection certificate (Clause 2, Article 9 of the 2005 Law on Intellectual Property).
In my opinion, such a solution will affect the interests of the applicants. Moreover, it is also unclear whether a third party, after a period of time, applies for registration of that trademark, or a similar trademark (to the point of confusion), will the competent authority accept this person's application?
b. Requirements for the use of trademarks.
Unlike the laws of other countries, Vietnamese law stipulates a grace period of 5 consecutive years (Clause 1,d, Article 95 of the 2005 Law on Intellectual Property). This provision is similar to that of British law.
Consequences of not using
Previously, Vietnamese law regulated the issue of trademark owners' obligation to use trademarks and the grace period for non-use in the 1995 Civil Code (Point c, Clause 1, Article 793) and Decree 63/CP (Point c, Clause 2, Article 28), accordingly, trademark owners must use or transfer the right to use within the period prescribed by law from the date the protection certificate comes into effect. The grace period for non-use is 5 consecutive years. The consequence of failing to comply with the obligation to use trademarks is that the Certificate of Trademark Registration is suspended. The National Office of Intellectual Property is the competent authority to decide to suspend the validity of the Certificate of Trademark Registration upon consideration of any third party's request for suspension of validity.
According to the provisions of Articles 95 and 96 of the 2005 Law on Intellectual Property, the trademark owner is obliged to continuously use that trademark. In case the trademark is not used by the owner or the person authorized by the owner for a period of five consecutive years before the date of request for termination of validity without a legitimate reason, then