Measures to Protect Industrial Property Rights for Trademarks

1.2. MEASURES TO PROTECT INDUSTRIAL PROPERTY RIGHTS FOR TRADEMARKS

Industrial property rights to trademarks, as well as property rights in general, are absolute civil rights of the owner that others are obliged to respect and not to commit acts of infringement. The State, with its leading role, establishes a legal system with certain protective measures to prevent infringements and protect the ownership rights of trademark owners. Measures to protect industrial property rights to trademarks according to the provisions of law are presented specifically below.

1.2.1. Administrative measures

Administrative measures are generally understood as measures used by competent state agencies to regulate social relations arising in the process of state administrative management activities. The nature of administrative measures is the unilateral application of sanctions by state agencies to obligated parties. In administrative measures, the relationship is unbalanced between one party, the subject with the right, the state agency, imposing its will on the management object (the party with the obligation to serve). That is, there is inequality between the parties participating in the administrative management relationship, one party, in the name of the state, uses state power to make administrative decisions, and the other party must obey those decisions. In essence, administrative measures are applied to ensure the stability of state administrative management, this measure is used by the state to punish and deter at a mild level.

Administrative measures applied to protect industrial property rights for trademarks are understood as measures implemented by competent state agencies by applying administrative sanctions to organizations and individuals whose acts are considered to infringe upon industrial property rights.

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administrative sanction against a trademark upon request of the trademark owner or upon discovery by the competent administrative sanctioning authority itself.

Unlike civil measures, which always aim to remedy the damage that has occurred, the meaning of administrative measures in protecting industrial property rights for trademarks is to punish and deter acts of infringement by sanctions such as warnings, fines, confiscation of exhibits, means of infringement, confiscation of counterfeit trademark goods... but does not take into account the damage to the owner whose rights have been violated.

The Law on Intellectual Property 2005, Decree 106/2006/ND-CP regulating administrative sanctions for violations of industrial property clearly defines administrative violations of industrial property, including trademarks, prescribes forms of administrative sanctions and levels of sanctions, and stipulates agencies with the authority to handle administrative violations, including: District People's Committees, Provincial People's Committees, police agencies, market management agencies, customs agencies, and industrial property inspectorates. At the same time, the scope of administrative handling of violations is clearly defined.

In fact, administrative measures are often chosen by trademark owners when an infringement occurs because administrative handling of trademark infringement is often carried out in a short period of time, which helps to prevent trademark infringement in a more timely manner; the procedure for handling trademark infringement under administrative measures is simple, less costly and at the same time has the meaning of punishing organizations and individuals who commit violations; administrative measures have a certain deterrent and preventive effect on re-offending as well as on others who intend to commit infringements. However, there are still certain limitations in administrative measures when resolving infringements of ownership rights to trademarks, as shown in the fact that: the application of administrative sanctions does not meet the requirements of trademark owners when trademark infringements often cause serious damage to the owners.

However, handling violations by administrative measures only results in compensation of a sum of money which is not enough for the trademark owner to overcome material damages. Furthermore, in practice, enforcing the decision to handle administrative violations is very difficult to implement.

1.2.2. Criminal measures

Criminal measures are sanctions applied by competent state agencies to punish acts of violating social order at a serious level considered as crimes as prescribed in criminal law. The nature of criminal measures in general is the state's use of state power for the purpose of punishing and deterring acts of violating social order, state management order... at a serious level considered as crimes.

In protecting industrial property rights for trademarks, criminal measures are often applied by competent state agencies to regulate acts of infringement of the rights of owners, causing serious consequences to their business activities, affecting social order, especially the consequences of producing counterfeit and poor quality goods that harm the health of consumers, causing material and spiritual damage to the right owners. In essence, this measure also has similar characteristics to administrative measures when it shows the imposition of the state's will on the violators to ensure social order, preventing violations of social order. However, criminal measures in protecting industrial property rights for trademarks are much more severe than administrative measures.

According to the provisions of Articles 156, 157, 158, 167, 171 of the 1999 Vietnamese Penal Code, criminal measures are applied to protect industrial property rights for trademarks when there are acts such as appropriation, illegal use of trademarks protected in Vietnam for the purpose of business, production, and trade of counterfeit goods. These acts can be considered crimes and punished.

Criminal liability shall be prosecuted if the consequences are serious or if the violation is committed repeatedly, in an organized manner, or if the person committing the violation has been administratively sanctioned for this act but the time limit for being considered as not having been administratively sanctioned has not expired, or if the person has been convicted of this crime but the criminal record has not been cleared.

Vietnamese law clearly defines the authority to decide to initiate criminal proceedings against trademarks as belonging to the investigation agency, the people's procuracy, and the people's court. The law stipulates that those who have the right to denounce infringement are any organization or individual when discovering an infringement of industrial property rights to a trademark.

Criminal measures are considered the most severe measures to protect the legitimate rights and interests of those whose rights have been violated, the rights and interests of consumers, and contribute to protecting the socio-economic system. Compared with administrative measures, this measure is much more severe. However, due to the nature of criminal measures being coercion and punishment by state agencies against a party considered a criminal, in this relationship, the rights of the right owner are violated as well as the losses of the violated person caused by the violation have not been satisfactorily resolved.

1.2.3. Civil remedies

Civil measures are measures by which the parties in a civil relationship, through the state, influence property relations and personal relations, causing these relations to arise, change, and terminate according to the state's will (through the legal system). The nature of civil measures is to regulate property relations and personal relations. In property relations and personal relations, the participating subjects are equal in legal status. This comes from the characteristics of property relations and personal relations in civil law. The property relations that civil law regulates are of a commodity-monetary nature and equivalent compensation.

In the field of intellectual property, industrial property rights to trademarks are a property right of the owner, this right has the nature of a civil right. Therefore, civil measures are considered the main and appropriate measures to apply to protect industrial property rights to trademarks, capable of satisfactorily and thoroughly resolving the damages that the owner of the infringed rights has suffered.

Protecting industrial property rights to trademarks through civil measures is when the trademark owner, the person with the right to legally use the trademark (the person inheriting the trademark ownership, the person receiving the transfer of the trademark ownership, etc.) on the basis of the rights prescribed by law through the people's court files a lawsuit requesting the infringing party to stop the infringement and compensate for damages. Industrial property rights to trademarks are respected and protected by law, so when there is an infringement, if it causes damage to the right holder, the right holder has the right to demand compensation from the infringer. The infringing party will have to directly compensate the infringed party for the losses it has caused. Requesting compensation for damages is a measure to compensate for the rights and legitimate interests of the right holder that have been damaged. Choosing civil measures for protection in this case will ensure maximum benefits as well as compensate for the damage of the right holder.

The authority to apply civil measures to protect industrial property rights to trademarks belongs to the people's court. The court shall base on the request of the litigant and on the basis of the provisions of law to determine the act of infringement of industrial property rights to trademarks, to issue a judgment or decision forcing the infringing party to stop the infringement, and at the same time, the court shall consider the basis for the arising of liability for compensation for damages when fully ensuring the following conditions: there is an illegal act, there is a causal relationship between the illegal act and the actual damage that has occurred, the person causing the damage

at fault... thereby requiring the infringing party to compensate in the most reasonable way for the damages caused to the right owner.

Among the measures to protect industrial property rights for trademarks, civil measures are considered the most suitable because this measure solves the problem arising from the nature of industrial property rights for trademarks as a civil right. Protecting industrial property rights for trademarks by civil measures together with other protection measures stipulated in the law contributes to influencing human behavior, preventing infringement on the interests of the legitimate owner of the trademark.

1.2.4. Border control measures

Border control measures are measures taken by competent state agencies to detect, prevent and handle violations of imported and exported goods across the border.

In essence, the measure to control goods across the border is similar to the administrative measure. However, due to the specificity of applying this measure only in the border area for exported and imported goods, this measure is now often mentioned as an independent measure, separate from the administrative measure.

Similar to the concept of border control measures in general, border control measures related to industrial property rights for trademarks are understood as measures implemented by competent state agencies by detecting, preventing and handling acts of infringement of industrial property rights for trademarks through the control of exported and imported goods.

Border control measures relating to intellectual property rights in general and industrial property rights in trademarks in particular, together with other protection measures, have been mentioned in international treaties. The 1995 TRIPS Agreement, which stipulates the enforcement mechanism, has emphasized the need to

establish border control procedures. The main purpose of this provision of the TRIPS relating to industrial property rights in trademarks is to prevent counterfeit goods through the importation of goods across borders. The TRIPS Agreement also requires member countries to incorporate these provisions into their domestic laws as effective protection against infringement.

In accordance with the requirements of TRIPS, Vietnamese law stipulates that the protection of industrial property rights for trademarks by border control measures is carried out according to the general procedures of this measure when applying intellectual property protection. That is, border control measures to protect industrial property rights for trademarks are applied when requested. Subjects requesting the application of this measure must meet certain conditions of the law. Regulations on the authority and procedures for implementing measures to control exported and imported goods related to intellectual property in general and trademarks in particular are mentioned in the Customs Law; Decree 154/2005/ND-CP dated December 15, 2005 of the Government on customs procedures, customs inspection and supervision; Law on Intellectual Property.

Border control measures play an important role in preventing goods with elements that infringe industrial property rights in general and trademark rights in particular from entering Vietnam from abroad as well as from exporting domestically. Thereby protecting the rights and reputation of trademark owners as well as the legitimate interests of domestic consumers.

1.3. THE ROLE AND SIGNIFICANCE OF PROTECTING INDUSTRIAL PROPERTY RIGHTS FOR TRADEMARKS BY CIVIL MEASURES

Originating from the industrial property right to a trademark, which is essentially a property right, it is also understood as a civil right. Furthermore, when considering the characteristics of each measure to protect industrial property rights,

Industrial property rights for trademarks as analyzed above include administrative measures, criminal measures, civil measures, and measures to control goods across the border. It can be seen that choosing to protect industrial property rights for trademarks by civil measures is consistent with the nature of industrial property rights for trademarks. When applied, this measure will satisfactorily resolve the property relationship between the subject of the infringed right and the infringing party, ensuring the rights and legitimate interests of the subject of the right, especially compensating for damages caused by the infringement. This superiority is not reflected in the remaining protection measures because criminal measures, administrative measures or border control measures generally aim to ensure state management order and social order between a subject that is the State in the name of the State and a party that commits an infringing act, and is applied when the State deems it necessary. These measures have the characteristics of command - obedience, forcing the infringing act to be subject to sanctions and deterrence at different levels. In this relationship, the party whose rights are infringed is not taken into account, the damage to the right owner is not set out to determine the level of compensation. With civil measures, in many cases, its application is the only way to satisfactorily resolve the issue of compensation for damages, overcome material damages to the right holder, and ensure the restoration of the original state when the ownership rights have not been infringed. Based on the general principle of determining civil compensation that the amount of damage must be compensated, this can be considered the only measure to determine the level of damage caused by the infringement to the right holder.

In terms of applicability, protecting industrial property rights for trademarks by civil measures has a wider applicability than the remaining measures. In this measure, whenever the right holder sees that his legitimate rights are violated, he can request the court to intervene to protect his rights legally, and at the same time, the plaintiff can make requests when filing a lawsuit or change requests during the settlement of the case. Moreover, applying civil measures in protecting trademarks from a theoretical perspective

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