Current Status of Industrial Property Protection Activities for Trade Secrets in Vietnam

for consumers or for society; organizations and individuals that are damaged or may be damaged due to unfair competition.

Regarding the authority to handle administrative violations of intellectual property rights in the field of business, inspection agencies, police, market management agencies, customs agencies, and people's committees at all levels are allowed to apply administrative measures. In necessary cases, these agencies can apply preventive measures and ensure administrative sanctions according to the provisions of law (Article 203 - Law on Intellectual Property).

Regarding the form of administrative sanctions, these agencies can apply one of two main forms of sanctions, warning or fine, to handle violations of intellectual property rights for BMKD (Article 214 - Law on Intellectual Property). The form of warning applies to cases of unintentional violations; minor violations, first time and with mitigating circumstances or to all administrative violations committed by minors from 14 years old to under 16 years old. Regarding the form of fine, based on the nature and severity of the violation, the competent person shall decide on the level of fine within the prescribed fine range. For administrative violations of industrial property, the specific fine level for a violation is the average level of the fine range prescribed for that violation in the absence of mitigating or aggravating circumstances. The average level of the fine range is determined by dividing the total of the minimum and maximum levels in half. If there are mitigating circumstances, the fine may be reduced, but not below the minimum level of the prescribed fine range. If there are aggravating circumstances, the fine may be increased, but not above the maximum level of the prescribed fine range (Decree 106).

Depending on the nature and severity of the violation, the violating organization or individual may also be subject to additional penalties as prescribed in Article 214 -

The IP Law is a temporary suspension of business activities in the field where the violation occurred.

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Issues regarding administrative violations, forms, fines, authority and procedures for handling are specified in detail in Decree 106/2006/ND-CP dated September 22, 2006 of the Government regulating administrative sanctions for violations of industrial property.

Second, regarding criminal measures, according to Article 212 - Law on Intellectual Property: "Individuals who commit acts of intellectual property infringement that constitute a crime shall be prosecuted for criminal liability according to the provisions of criminal law".

The 1999 Penal Code, amended and supplemented in 2009, has recorded crimes of infringement of intellectual property rights in general in the chapter "Crimes of infringement of economic management order" in three articles 170a, 170b, 171. Article 171 stipulates the crime of infringement of intellectual property rights, according to which the crime of infringement of intellectual property rights is that anyone who intentionally infringes on industrial property rights for trademarks or geographical indications that are protected in Vietnam on a commercial scale, shall be fined from fifty million to five hundred million VND or be subject to non-custodial reform for up to two years. This is a newly amended article of the 2009 Penal Code, which does not mention BMKD, but BMKD is also a subject of intellectual property, so according to Article 212 - Law on Intellectual Property, acts of infringement of BMKD that are protected in Vietnam, if there are elements constituting a crime, will be prosecuted for criminal liability according to the provisions of criminal law.

Third, regarding measures to control exported and imported goods, according to the provisions of Clause 4, Article 200 - Law on Intellectual Property, the competent customs authority shall apply measures to control exported and imported goods related to intellectual property.

According to Article 216 of the Law on Intellectual Property, customs authorities have the right to apply measures to temporarily suspend customs procedures for goods suspected of infringing upon intellectual property rights.

intellectual property rights infringement; inspection and supervision to detect goods with signs of intellectual property rights infringement to control exported and imported goods related to intellectual property rights.

Suspension of customs procedures for goods suspected of infringing intellectual property rights is a measure taken at the request of the right holder to collect information and evidence about the shipment so that the right holder can exercise the right to request handling of the infringement and request the application of temporary emergency measures or preventive measures and ensure administrative sanctions.

Inspection and supervision to detect goods with signs of intellectual property rights infringement is a measure carried out at the request of the rights holder to collect information to exercise the right to request the application of temporary suspension of customs procedures.

The owner of intellectual property rights to a business has the right to request the customs authority to temporarily suspend customs procedures for imported and exported goods when there is reason to believe that such goods infringe upon intellectual property rights to a business.

The significance of the measure of temporary suspension of customs procedures is shown in the following: during the period of temporary suspension of customs procedures, the right holder has the opportunity to collect information and evidence about the shipment in order to exercise the rights to request handling of the infringement of rights and request the application of temporary emergency measures or preventive measures to ensure administrative sanctions.

The person requesting the application of measures to control exported and imported goods related to intellectual property rights for BMKD has the following obligations: Prove that he/she is the subject of intellectual property rights for BMKD with documents and evidence as analyzed in the above sections; Provide sufficient information to identify goods suspected of infringing intellectual property rights for BMKD or to detect goods showing signs of infringing intellectual property rights for BMKD; Submit an application to the competent authority.

customs and pay fees and charges as prescribed by law. The applicant may be the owner of the intellectual property right or an authorized representative or legal representative; Compensate for damages and pay any costs incurred by the person subject to control measures in case the controlled goods do not infringe upon intellectual property rights to the intellectual property right. The costs incurred include costs of warehousing, loading and unloading, preserving goods and other costs incurred by the customs authority and other relevant agencies, organizations and individuals as prescribed by law on customs. Damages caused by the suspension of customs procedures shall be agreed upon by the two parties or determined according to civil proceedings (Article 217 - Law on Intellectual Property).

To ensure the implementation of this obligation, Clause 2, Article 217 of this Law stipulates: The person requesting the application of the measure of temporary suspension of customs procedures must submit a guarantee in one of two forms: An amount equal to 20% of the value of the shipment requiring the measure of temporary suspension of customs procedures or at least 20 million VND if the value of the shipment cannot be determined; A guarantee document from a bank or other credit institution.

This guarantee will be refunded to the person requesting the suspension of customs clearance after the obligation to compensate for damages and pay other expenses has been fulfilled.

Among the above measures, civil measures are often the most desired by right holders because of the meaning it brings, which is adequate compensation for the material and spiritual damages that the right holder must bear due to the act of infringing on intellectual property rights. Administrative and criminal measures are rarely applied because acts of infringing on intellectual property rights often do not cause damage to society but mainly affect the rights of the owner or are only considered a crime when fully satisfying the signs of constituting a crime as prescribed by criminal law.

CHAPTER 3

CURRENT STATUS OF INDUSTRIAL PROPERTY RIGHTS PROTECTION ACTIVITIES FOR BUSINESS SECRETS IN VIETNAM AND

SOME RECOMMENDATIONS FOR IMPROVING THE LAW

3.1 Current status of industrial property protection activities for business secrets in Vietnam

A trade secret is protected if it meets the following conditions: It is not common knowledge; It can be applied in business and when used, it will give the holder of the information an advantage over those who do not hold it; It is kept confidential by the owner using necessary measures so that the information is not disclosed and is not easily accessible.

When all of the above conditions are met, the business secret of the enterprise is protected indefinitely. That means that the owner's rights to the business secret are automatically established. Therefore, when talking about the status of establishing intellectual property rights to business secret, we mainly talk about the status of applying necessary security measures to protect business secret.

In fact, to be protected, the leaders of some large Vietnamese enterprises have paid attention to the issue of security for their business secrets. They have designed a security process and divided it into many parts. Each part is assigned to a department, these departments are obliged to keep it absolutely secret. The formula and the most important stage in the technological process are directly held by the company director. For example, Anh Dao Wine and Beverage Company, to keep business secrets, the company's CEO has designed a security process and divided it into many parts. Part of the formula and technological process is assigned to the technical department. This department is responsible for keeping it absolutely secret. In addition, the company also applies the principle of limiting visitors to the technical area as much as possible, even

Even company staff are not allowed to enter without permission. In the technological process, the director cuts out the most important step and only the director holds the formula. This is also the step that makes the difference between Cherry wine and other wines on the market.

The Trung Nguyen coffee processing formula is also well protected. Each stage, from flavoring, temperature to the marinating stage, is assigned to many people. Initially, the general director was responsible for managing the most important stage in the 7 processing steps. Later, due to the increasingly busy work, the general director chose a reputable person to transfer the process. Choosing people to hold the stages plays an important role in the technological process. They must be talented, virtuous and know how to value credibility. Trung Nguyen Company regularly organizes training courses on intellectual property knowledge and strengthens their sense of responsibility for preserving the business secrets of the enterprise.

For small production facilities, protecting business secrets is often done by the method of passing them down from father to son. For example, Mr. Bui Duc Thang, the owner of a handicraft production workshop in Ha Tay, said that his facility produces lacquer, eggshell inlay, and bamboo lacquer for export. Each hired worker is instructed in a few steps, and the completion of the final product is usually done by members of his family, so there is little concern about technical disclosure.

To protect business secrets, foreign companies when transferring technology to Vietnam also pay special attention to transferring important technical stages.

In short, in reality, to ensure that business secrets are not compromised, businesses have really focused on and built a comprehensive and synchronous strategy on this issue. First of all, businesses have clearly and specifically identified what business secrets need to be protected and preserved, and applied

What measures are taken to ensure the confidentiality of that information... One of the proactive measures to protect confidential information is to limit the number of people accessing the information to the extent possible, and to have certain limits on access to confidential information or access to databases that need to be kept confidential. In relations with partners or third parties, businesses have also paid special attention to information security mechanisms through confidentiality contracts and non-disclosure commitments.

Protecting trade secrets is a vital requirement for businesses. Each country has its own methods and sanctions to help businesses have effective "shields". However, in Vietnam, this still causes headaches for businesses. Acts of violating trade secrets are very diverse, and the theft of trade secrets is becoming more and more sophisticated. Trung Nguyen Company has also faced this problem many times, and there have been employees of the company who have been bribed and shared information with competitors. However, because these people only hold part of the technological process, the company still keeps its own secrets. There are many cases where competitors send employees to collect flavoring containers and coffee boxes for research with the desire to imitate Trung Nguyen products.

Up to now, in Vietnam, there have been no major disputes related to BMKD and because the concept of trade secrets as well as the issue of protecting and preserving trade secrets are still quite new and not really taken seriously, the sanctions for acts of violating trade secrets are not really strict (mainly applying civil and administrative measures). This is partly because acts of violating trade secrets rarely have a big impact on consumers and the whole society, but only on the owner.

In fact, there have been a number of cases related to BMKD but they only stopped at response documents, reflecting the frustrations when confidential information was disclosed.

The State Bank of Vietnam, Bac Lieu Branch, at the 2011 Business Cooperation Solution Conference, for example, announced the outstanding debts of businesses. This caused businesses with high debts to be "disfigured" because their business secrets were suddenly exposed. The announcement of debts by the State Bank of Vietnam, Bac Lieu Branch, is a violation of the law. Accordingly, the law stipulates that accounts (including credit accounts and debt accounts) of individuals and organizations are confidential and banks are not allowed to make them public without a decision from competent state agencies (prosecution agencies and tax agencies). According to Decision 51 of the State Bank of Vietnam in 2007, the State Bank of Vietnam's Credit Center has the right to exploit credit information but is absolutely not allowed to make it public. This information is only used internally (as a paid service) within the banking system to know the outstanding debt of the enterprise, assess the ability to collect debt... and is not allowed to be widely published. Not only that, the debt account is also a business secret, so the action of the State Bank of Vietnam Bac Lieu Branch also violated the Law on Intellectual Property when disclosing this information. There are many enterprises that borrow capital from banks to do business, if they have just borrowed, the outstanding debt amount can be very large. The publication of outstanding debt seriously affects the reputation of the enterprise, possibly causing damage to their business. Therefore, the enterprise can sue in court to request compensation. [35]

Another example is the disclosure of business secrets for tax purposes. The purchase price and the sale price are considered business secrets of each enterprise, but the Ministry of Finance requires international freight forwarding enterprises to declare this information in the contract and financial invoice. That is the content of Official Letter 15448/BTC - TCT dated November 2, 2009 on the collection of 10% value added tax on the difference between the sale price and the purchase price of international freight. Enterprises must issue both separate invoices, then what is business secrets anymore. This Official Letter has

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