Hiep Hung trademark has been protected for Snack packaging. Nestea lemon tea product is confused with Freshtea of Thuy Huong Company. The similarity in the text, from structure, to pronunciation and presentation, layout, color, if not paying attention, it will be difficult to detect that the two lemon tea packages are produced by two different companies. Many consumers, when asked, mistakenly think that the two products are from the same company... In addition, there are also many counterfeit commercial indications on the market. Goods labeled Made in Japan, Made in USA but are actually produced in China or in Vietnam.
Recently, public opinion has been buzzing about the fact that Bao Kim E-commerce Joint Stock Company, an e-wallet service launched in June 2010, has features identical to the nganluong.vn (Ngan Luong) e-wallet version 1.0 of PeaceSoft Software Solutions Joint Stock Company, which was popular in 2009. Launched 2 years after Ngan Luong of PeaceSoft, Bao Kim has similar features to Ngan Luong from product concept, service model, functional structure to contract template, advertising introduction content and explanatory text on the website... When Ngan Luong upgraded to version 2.0 in July 2010, Bao Kim continued to change the interface to simulate the form of Ngan Luong. According to PeaceSoft Joint Stock Company, the online payment gateway nganluong.vn has been registered and protected by law, all documents, contract templates, operating models, business methods, etc. of nganluong.vn are also the intellectual property of PeaceSoft Company. Such unfair competition acts still occur frequently in the field of intellectual property, it not only infringes on property but also disrupts the business activities of competitors.
Decree No. 97/2010/ND-CP issued by the Government on September 21, 2010 replaces Decree No. 106/2006/ND-CP dated September 22, 2006, which stipulates: Organizations and individuals who perform one of the following acts such as selling, offering for sale, transporting, including transiting, storing, displaying for sale counterfeit goods
The acts of registering, occupying the right to use or using a domain name that is identical or confusingly similar to another person's protected trademark, geographical indication or trade name in order to occupy the domain name, take advantage of or damage the prestige and reputation of the corresponding trademark, trade name or geographical indication, which were not previously regulated in Decree 106/2006/ND-CP, are now specifically regulated with a fine of 5-20 million VND.
The new Decree has been built on the basis of inheriting relevant regulations and overcoming loopholes and overlapping regulations of current laws such as: the form of administrative sanctions in cases of infringement of rights causing damage to consumers and society is expanded to include infringement causing damage to authors and owners; the previous administrative fine from 1 to 5 times the value of the infringing goods is replaced by a maximum ceiling of 500 million VND to comply with the Ordinance amending and supplementing a number of articles of the Ordinance on Handling of Administrative Violations in 2008.
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Sanctions for unfair competition acts under the provisions of Vietnamese law - 2 -
Sanctions for Promotional Behavior Aimed at Unfair Competition -
Sources of Law on Sanctions for Unfair Competition -
Basis for Applying Sanctions for Unfair Competition -
Unfair Competition Regarding Trademarks
* Practice of violating trade secrets
A trade secret is an intellectual property (intangible property), different from other tangible assets. Therefore, a trade secret is considered a special advantage of the business that owns it. If lost, it can seriously affect the business operations or existence of the business. Trade secrets are also subject to intellectual property law.
In practice, it can be understood that infringement of trade secrets is the act of an enterprise in the process of competition and for the purpose of competition, accessing, collecting, disclosing, using information or violating the confidentiality contract or deceiving, taking advantage of the trust of the person who is obliged to keep confidential information belonging to trade secrets without the permission of the owner of the trade secret or by opposing the security measures of the legitimate owner of that trade secret. Trade secrets can be expressed in the form of
"private documents of the enterprise such as: machine designs, production formulas, mixing methods, list of representatives or customers of the enterprise, bidding documents..." [34. p. 253].
Current law does not specifically define what constitutes a trade secret. Therefore, when a dispute arises, it is difficult to determine whether the information used by the parties for unfair competition is a trade secret or not. When a trade secret is an industrial property object (i.e. it has been registered for protection and made public), violations will easily have grounds for handling and applying sanctions as prescribed in the Law on Intellectual Property. However, trade secrets are difficult to make public, so the owner must keep them confidential. When there is an act of unfair competition, the competent authority is responsible for determining whether it is a trade secret or not and the owner must prove that it is a trade secret.
Sanctions for acts of violating business secrets have been specifically regulated in Decree No. 97/2010/ND-CP dated September 21, 2010 of the Government. Organizations and individuals who commit one of the acts of violating the rights to business secrets will be subject to fines ranging from 10 to 30 million VND.
In the United States, the theft of Coca-Cola's trade secrets is one of the examples of the sophistication of trade secret infringement in the market. Coca-Cola employees hacked into data and stole the formula for a new product from Coca-Cola. Then, they offered to sell the information to Pepsi-Cola, Coca-Cola's top competitor. An undercover FBI agent was assigned to meet with this employee at Hartsfield-Jackson International Airport in Atlanta. During the meeting, he presented an envelope containing documents and a glass bottle containing a liquid sample. The FBI investigator said he would pay $30,000 in advance and promised to pay the remaining $45,000 later. Next, the FBI secretly assigned another employee to pretend to offer to buy the remaining secrets for $1.5 million.
USD from the person who delivered the documents and the sample of the solution. That same day, the FBI discovered that a bank account had been opened in the names of Duhaney and Dimson. He was arrested shortly thereafter and brought to trial in Atlanta, Georgia. This incident should serve as a warning not only to Coca-Cola but to all other businesses.
In Vietnam, 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. 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 major impact on consumers and the whole society, but only on the owner. Therefore, the best measure currently for businesses to protect their trade secrets is to establish their own security strategies and techniques.
In case of discovering the infringement of business secrets by other entities, the owner of the business secret may request or use necessary measures to force them to stop the infringement. If the entities that infringe the business secret admit the infringement, the owner should resolve the matter through negotiation and conciliation to ensure its confidentiality.
In case the matter cannot be resolved through negotiation or conciliation, the owner may request competent state agencies such as the Court, Inspectorate, Market Management, Customs, Police, and People's Committees at all levels to handle the infringement through civil, administrative or criminal measures in accordance with the provisions of law.
Among the measures to handle acts of infringement of business secrets, handling them by civil sanctions is the most meaningful measure. The advantage of civil sanctions is that they can directly and proportionately compensate the owner for the damages caused by acts of infringement of business secrets. Material damage
Compensation includes: loss of property, loss of income and profits, loss of business opportunities, reasonable costs to prevent and remedy the damage. However, the owner must prove the infringement of the trade secret, prove the security measures he has applied, and must prove the actual damage that has occurred with legal evidence.
Infringement of trade secrets for unfair competition purposes may be handled by administrative sanctions, but they are different from normal administrative measures. Handling of infringement of trade secrets by administrative sanctions is only carried out upon request of the injured party. Administrative sanctions applied to infringement of trade secrets are warnings or fines. The application of administrative measures to infringement of trade secrets does not eliminate the claim for compensation for damages caused by infringement of trade secrets. Therefore, entities whose trade secrets are infringed may request the competent Court to resolve the issue of compensation for damages.
If the act of infringing on a trade secret has sufficient elements to constitute a crime, it may be subject to criminal sanctions. Criminal sanctions must be applied by a competent Court in accordance with the provisions of the Criminal Procedure Law.
Thus, Vietnamese law currently has a fairly complete mechanism to protect intellectual property rights for business secrets of traders. However, in reality, traders in Vietnam still seem to be very unfamiliar with using the law to protect business secrets and using court proceedings to protect their business secrets.
* Practice of coercive behavior in business
Coercion in business is when a business forces or threatens customers or business partners of a competitor to not allow them to transact or to stop transacting with that business. Common manifestations in the market
In the Vietnamese market, large manufacturers and potential companies often threaten to cut off agency relationships with retail stores if they simultaneously accept to act as agents selling competing products for other manufacturers. This behavior has violated the freedom of business of other business entities and the interests of consumers. In some aspects, the methods of intimidation and coercion that are unhealthy in business have the nature of hooliganism, and can also cause certain disturbances in the community, affecting social order and security.
Coercion in business is an illegal act stipulated in many different legal documents. If it satisfies the signs of unfair competition, it will be handled according to the provisions of the Competition Law. If not, it will be handled based on the legal document that stipulates that act.
Coercive business practices often occur in the beverage industry. Potential companies often come to stores to negotiate and sign sales agency contracts. Accordingly, the company will sponsor a large amount of money, equip signs, tables, chairs, refrigerators, cups, etc., with the condition that these stores are only allowed to sell their products without any form of advertising or selling similar products from other businesses. If they violate, the stores must refund the entire sponsorship amount.
Although the relationship is established on the basis of a contract, it is voluntary in form, but in reality it is coercive. For various reasons, the stores have invisibly supported the monopoly business model of some enterprises. From the perspective of civil law, such transactions lack the element of voluntariness and self-determination of one of the participating parties and therefore the transaction can be declared completely invalid.
In the insurance sector, we also encounter the phenomenon of some businesses using administrative measures to pressure, entice, and force insurance participants to buy insurance or use brokerage services.
insurance brokers at a business, contrary to the right to freely choose and enter into contracts. Competition through administrative intervention is clearly demonstrated in the student insurance business. Some businesses, in order to dominate the market, have agreed to support schools with a large source of funding, even higher than the insurance premiums collected. This approach has created conditions for schools to put pressure on other insurance businesses, deteriorating the nature of student insurance.
* Practice of defaming other businesses
It is the act of a business directly or indirectly providing dishonest information, causing negative impacts on the reputation, financial status and business activities of another business. The act of defaming another business is regulated by the provisions of many different areas of law. The act of defamation and slander is an act of unfair competition when the subject of the act of defamation and slander is a competitor of the victim of that act. Therefore, if it satisfies the signs of unfair competition, the act of defaming another business, regardless of which legal document is stipulated, is considered an act of unfair competition and is handled according to the law on competition.
In practice, the act of defaming other businesses is quite common and manifests itself in many forms such as: slandering, defaming, and slandering competitors, intentionally spreading rumors, creating public opinion, and creating a bad impression of a product that is reputable in the market, in order to lower the reputation of competitors' products.
In recent years, the Vietnamese market has seen many acts of defamation against other businesses, but the handling of the case is still difficult because it is not possible to identify the specific violators and the source of information spread in society. A typical case is the Laska Company (a 100% foreign-owned enterprise) with Laska purified water product, which defamed its competitor,
Tran Lien Thinh Company Limited, has a similar product with the Waterman brand. Taking advantage of the fact that Hanoi International Hospital sent two samples of purified water, Water Stream KC and Lasska, to the Center for Technology and Environmental Protection - Military Technical Institute for testing, Laska Company used the test results of these two water samples to modify the content into a fake result. It replaced the water sample named Water Stream KC with Waterman, replaced the sample named Lasska with Laska; changed the conclusion that Water Stream contained Nitrite (NO 2 ) higher than the permitted standard to Waterman containing NO 2 higher than the standard. That information was released by Laska on the market, and Waterman's consumers and customers simultaneously changed to new products due to lack of conditions to evaluate and verify the information. That incident caused great damage to the reputation, honor and property of Tran Lien Thinh Company Limited. Many similar incidents have occurred, such as rumors: there are cockroaches in Tiger beer, flies in Tien Giang's BIGI beer, foreign objects in Coca-Cola soft drinks, P&G sanitary napkins contain asbestos that is harmful to the health of users. These rumors with bad content have created a bad impression of competitors' products, damaged the reputation and affected the business activities of the slandered and defamed enterprises.
According to current law:
When a subject's civil rights are violated, that subject has the right to self-defense according to the provisions of the Civil Code or to request competent agencies and organizations to recognize his/her civil rights; to force the termination of the violation; to force a public apology and correction, to force compensation for damages... [43. Article 9].
Other acts of defamation of enterprises also affect the rights of consumers because they indirectly deceive consumers, hinder their right to choose products, goods and services and the right to be provided with impartial information.