According to the theory widely accepted in continental European countries, unfair competition is essentially a violation of civil rights; the elements of unfair competition are the same as those of traditional civil liability, namely unfair competition, fault, damage, and the causal relationship between unfair competition and damage.
In order to combat the monopoly of the use of intellectual property objects and unfair competition by intellectual property owners, Vietnamese intellectual property law stipulates terms that are not allowed to be included in contracts transferring the right to use intellectual property objects. In order to ensure the rights and legitimate interests of the transferee, the Intellectual Property Law has set out a provision prohibiting the inclusion of certain terms in the contract. In Clause 2, Article 144, the Intellectual Property Law stipulates that contracts for the use of intellectual property objects must not contain terms that unreasonably restrict the rights of the transferee, especially terms that do not originate from the rights of the transferor:
- Prohibit the transferee from improving the industrial property object, except for trademarks; force the transferee to transfer free of charge to the transferor the improvements to the industrial property object created by the transferee or the right to register the industrial property, the industrial property rights to such improvements;
When the licensee of a patented intellectual property object makes improvements to the patented intellectual property object, making it more useful, the licensee is not entitled to prohibit the licensee from making these improvements. If the improved object is a new intellectual property object, the licensee is also entitled to intellectual property protection for the patented intellectual property object like a normal owner.
In case the party to whom the right to use the patent is granted makes improvements to create a new invention that is an important technical step forward compared to the transferred invention, but the use of the new invention depends on the old invention of the licensor, the licensed invention is considered a basic invention and the newly created invention is called a dependent invention. According to Clause 1, Article 137 of the 2005 Law on Intellectual Property, a dependent invention is “ an invention created on the basis of another invention and can only be used on the condition that the basic invention is used ”. In that case, the party to whom the right to use the patent is granted has the right to register the intellectual property rights to that dependent invention and request the owner of the basic invention to transfer the right to use the basic invention to it to serve the use of the newly created dependent invention.
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Contents of the Contract for Transfer of Rights to Use Shcn Object
In addition, after the transferee has improved the IP object, the licensor uses it as his own without permission or paying certain fees to the licensor, it is also considered a violation of the law. This provision helps promote human creativity, stimulates the transfer of IP objects, and creates useful IP objects that serve human life.
- Directly or indirectly restricting the licensee from exporting goods or services produced or provided under the contract for the use of industrial property objects to territories other than those where the licensee holds the corresponding industrial property rights or has exclusive rights to import such goods;
The licensor is not allowed to force (directly or indirectly) to restrict the transfer of the right to export goods, services... to a territory where the licensor does not have exclusive rights to use. The licensor is only allowed to prohibit the licensee from exporting goods, services to a territory where the licensor
Transfer of exclusive rights to use intellectual property objects. This provision aims to prevent the transferor from using intellectual property objects exclusively, limiting the rights and interests of society from being changed due to harmful factors caused by monopoly.
For example, A's trademark is protected in country X. A transfers the right to use it to B. If X is the territory where A has exclusive rights to the protected trademark, A can prohibit B from using the trademark in X. But in country Z where A does not have exclusive rights to use the trademark, A does not have the right to prohibit B from exporting goods or services bearing that trademark to country Z.
- Forcing the licensee to purchase all or a certain percentage of raw materials, components or equipment from the licensee or from a third party designated by the licensee without the purpose of ensuring the quality of goods and services produced or provided by the licensee;
In franchising, the franchisor forces the franchisee to buy its products or those of a manufacturer designated by it. This provision is called an exclusive supply provision and is only applied to ensure the interests of the parties entering into a franchise contract. For the franchisor, they want to ensure that the products sold by their partners ensure the quality of goods and services that the franchisor is trying to build. The franchisee is also guaranteed that it will be provided with products on a regular and stable basis to serve customers. Thus, this exclusive supply provision clearly benefits both parties entering into a franchise contract.
Similar to the transfer of the right to use an IP object, forcing the licensor to purchase raw materials, components, and equipment from the licensor will bring benefits if it is aimed at ensuring quality.
goods and services produced or provided by the licensee. In that case, the licensee will ensure the quality of the goods containing its licensee's ...
In fact, whether in the contract of transferring the right to use the IP object or the commercial franchise, if there is a provision requiring the franchisee to purchase raw materials, components, and equipment from the licensor, it will cause certain disadvantages to the licensee. These could be:
+ The licensee is not allowed to purchase similar materials, components, and equipment from other suppliers.
+ It is very difficult for the transferee to negotiate the most reasonable purchase price with the transferor of the right to use the intellectual property object.
In addition, if this provision is not restricted in the contract for using the IP object, it can also affect the freedom of competition in the general commercial business market.
- The transferee is prohibited from suing the validity of the industrial property rights or the transfer rights of the transferor.
Regarding the issue of the validity of the ownership rights or the transfer rights of the transferor, if there is any violation of the law, the transferee may complain to the competent authority.
This provision somewhat limits the excessive abuse of the intellectual property rights of the right owner even when the protection certificate expires. If the transferee cannot complain about this issue, it will also greatly affect the rights of the transferee when the criteria for the protection period of the intellectual property rights protection certificate no longer exist. This also means that the contract for transferring the right to use is worthless and the transferee may have to bear many economic risks.
In addition, the law also stipulates that if the contract for the use of intellectual property objects contains the above provisions, the contract is automatically invalid. This provision aims to protect the rights and interests of the parties when entering into a contract for the transfer of the right to use intellectual property objects . Competitors in the market will not be able to take advantage of the ownership of intellectual property objects to create monopolies and unfair competition, restricting the transferee from fully exploiting the transferred right to use. Thereby preventing the risk that the transferee will not be able to recover capital and profits to offset the necessary costs in the process of using intellectual property objects. The introduction of the above restrictions on the transfer of intellectual property objects also contributes to combating unfair commercial practices, which are barriers to a free and open market.
In addition to the above-mentioned restrictions on transferring the right to use an IP object, for all cases of transferring the right to use an IP object, there is an additional general restriction that the transferee is not allowed to sign a secondary contract with a third party, unless permitted by the transferor. The law grants the owner of an IP object the exclusive right to use that object, this exclusive right allows the owner to allow or not allow other entities to use his/her IP object. Therefore, if the transferee wants to transfer the right to use
Using an intellectual property object for another entity must have the consent of the owner of that intellectual property object.
Chapter II Conclusion
In the context of our country's economy developing strongly, reaching out to integrate with the international economy, encouraging economic development through the transfer of the right to use industrial property objects is very necessary. However, this is a big challenge for Vietnam and Vietnamese law when it is necessary to grasp and adjust this activity appropriately, promoting the effectiveness of the transfer of the right to use industrial property objects for the economy. Therefore, in order to create conditions for the country's economic development, we are still trying to make more efforts in the process of building laws on the protection of industrial property rights in general and perfecting the legal mechanism on the transfer of the right to use industrial property objects in particular.
It can be seen that Vietnamese law on the transfer of the right to use industrial property rights has shown consistency in compliance with international treaties on this issue. The basic contents of the contract are consistent with the provisions of international law, the factors limiting the transfer of the right to use industrial property rights are consistent with the nature and purpose of each subject. However, from law to practice, there are still many unresolved problems. These issues will be further clarified in Chapter III of the thesis.
CHAPTER III CURRENT STATUS OF TRANSFER OF USE RIGHTS OF INDUSTRIAL PROPERTY OBJECTS IN VIETNAM AND CONSTRUCTION
RECOMMENDATION ON IMPROVING THE LAW
3.1 Practical activities of transferring the right to use intellectual property rights
3.1.1 Overview of activities of transferring the right to use SHCN objects
Licensing of intellectual property rights is becoming an effective tool for economic development, exploiting intellectual property rights for intellectual property rights and promoting human creativity. This is considered an effective form of commercial trading of intellectual property rights. For the licensor, the implementation of a licensing contract helps to maximize the exploitation of its intellectual property rights, while for the licensee, the licensing contract helps to save costs in creating a new intellectual property rights suitable for the manufactured product. Licensing of intellectual property rights is also a strategy that needs to be carefully calculated by businesses.
Licensing of IP objects is also raised in some cases such as the cost of bringing products to market is too high, therefore, taking advantage of the available potential from IP objects is always the optimal choice for businesses. For example, businesses can execute a trademark licensing contract to take advantage of the reputation and market that the brand already has to sell their products. For small and medium enterprises, participating in a chain of production lines or consuming products of famous brands can be a shortcut to join forces. Businesses can simultaneously achieve two goals, which are to carry a famous brand at a lower cost,