WORLD TRADE ORGANIZATION  
ORGANISATION MONDIALE DU COMMERCE  
ORGANIZACIÓN MUNDIAL DEL COMERCIO  IP/N/1/VNM/E/2 
13 October 2008 
 (08-4862) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  Original:   English/ 
 anglais/  inglés 
 
 
MAIN DEDICATED INTELLECTUAL PROPERTY  
LAWS AND REGULATION S NOTIFIED UNDER  
ARTICLE 63.2 OF THE AGREEMENT 
 
VIET NAM 
 The present document reproduces the text1 of Joint Circular No. 02/2008/TTLT-TANDTC-VKSNDTC-
BVHTT&DL-BKH&CN-BTP of 3 April 2008, Guiding the Application of a Number of Legal Provisions to the 
Settlement of Disputes over intellectual Property Rights at People's Courts, notified by Viet Nam under Article 
63.2 of the Agreement (see document IP/N/1/VNM/3). 
 
 Conseil des aspects des droits de propriété 
intellectuelle qui touchent au commerce 
 
 
PRINCIPALES LOIS ET RÉGLEMEN TATIONS CONSACRÉES À LA  
PROPRIÉTÉ INTELLECTUELLE NOTI FIÉES AU TITRE  
DE L'ARTICLE 63:2 DE L'ACCORD 
 
VIET NAM 
 Le présent document contient le texte
1 de la Circulaire interins titutions n° 02 /2008/TTLT-TANDTC-
VKSNDTC-BVHTT&DL-BKH&CN-BTP du 3 avril 2008, contenant des directives pour l'application de 
certaines dispositions légales au règlement des différends en matière de droits de propriété intellectuelle devant 
la Cour du peuple, notifiée par le Viet Nam au titr e de l'article 63:2 de l'Accord (voir le document 
IP/N/1/VNM/3). 
 
 
Consejo de los Aspectos de los Derechos de Propiedad 
Intelectual relaciona dos con el Comercio  
 
 
PRINCIPALES LEYES Y REGLAMENTOS DEDICADOS A LA  
PROPIEDAD INTELECTUAL NOTI FICADOS EN VIRTUD  
DEL PÁRRAFO 2 DEL ARTÍCULO 63 DEL ACUERDO 
 
VIET NAM 
 En el presente documento se reproduce el texto1 de la Circular conjunta Nº 02/2008/TTLT-TANDTC-
VKSNDTC-BVHTT&DL-BKH&CN-BT P, de 3 de abril de 2008, en la que  se establecen directrices para la 
aplicación de diversas disposic iones jurídicas aplicables a la solución de diferencias en materia de derechos de 
propiedad intelectual en los tribunales populares, notif icada por Viet Nam en virtud  de lo dispuesto en el 
párrafo 2 del artículo 63 del Acuerdo (véase el documento IP/N/1/VNM/3). 
                                                      
1 In English only./En anglais seulement./En inglés solamente. IP/N/1/VNM/E/2 
Page 2  
 
  THE SUPREME PEOPLE’S COURT - THE SUPREME PEOPLE’S PROCURACY - THE 
MINISTRY OF CULTURE, SPORTS AND TOURISM - THE MINISTRY OF SCIENCE AND 
TECHNOLOGY - THE MINISTRY OF JUSTICE  
 
JOINT CIRCULAR No. 02/2008 /TTLT-TANDTC -VKSNDTC-
BVHTT&DL-BKH&CN-BT P OF APRIL 3, 2008, GUIDING THE 
APPLICATION OF A NUMBER OF  LEGAL PROVISIONS TO THE 
SETTLEMENT OF DISPUTES OVER  INTELLECTUAL PROPERTY 
RIGHTS AT PEOPLE’S COURTS 
 
In order to properly and uniformly apply legal provisions to the settlement of disputes over 
intellectual property rights at people’s courts, the Supreme People’s Court, the Supreme People’s 
Procuracy, the Ministry of Culture, Sports and Tour ism, the Ministry of Science and Environment and 
the Ministry of Justice jointly provide the following guidance: 
 A. GENERAL MATTERS 
 I. Disputes over intellectual property rights which fall under the handling competence of people’s courts (specified in Clause 4, Article 25 and Cl ause 2, Article 29 of the Civil Procedure Code) 
 1. Disputes over copyright  
 
a/ Disputes among individuals over copyright to literature, artistic or scientific works or derivative works;  b/ Disputes among co-authors over division of the co-authorship right; 
 
c/ Disputes between individuals and organizations  over the ownership of copyright to works; 
 d/ Disputes between copyright owners and author s over royalties or remunerations for authors who 
have created works under task assignments or contracts;     
e/ Disputes over the exercise of moral rights or economic rights of authors or copyright owners; 
 f/ Disputes over copyright to computer programs or  data compilations between entities that provide 
finance and physical conditions decisive to th e development of computer programs or data 
compilations and designers and developers of these computer programs or data compilations; 
 
g/ Disputers over copyright to cinematographic or dr amatic works between entities that invest finance 
and material-technical facilities in the production of  these works and persons who participate in the 
creation of these works and producers of these wo rks, or disputes between them over royalties, 
remunerations and othe r material benefits; 
 
h/ Disputes between copyright owners and users of  published works that are not required to ask for 
authority or pay royalties or remunerations for the reason that such use affects the normal utilization 
of these works or causes harms to rights of  work authors or copyright owners; 
 i/ Disputes between copyright owners and users of published works that are not required to ask for 
authority but are obliged to pay royalties or remune rations for the reason that the users fail to pay  IP/N/1/VNM/E/2 
 Page 3 
 
 
  royalties or remunerations or affect the normal utiliz ation of these works or cause harms to rights of 
work authors or copyright owners;  j/ Disputes over contracts on copyright assignment or licensing, or disputes over contracts on 
copyright service; 
 
k/ Disputes arising from acts of infringing upon copyright;  l/ Disputes over succession or inheritance of economi c rights as specified in Article 20 and moral 
rights as specified in Clause 3, Article 19 of the Intellectual Property Law. 
 
m/ Other disputes over copyright as specified by law.  2. Disputes over related rights  
a/ Disputes between investors and performers over moral rights and economic rights to performances; 
disputes between performers and users of econom ic rights to performances over remunerations; 
 b/ Disputes between producers of phonograms or vi deo recordings and entities exercising rights of 
producers of phonograms or video recordings over ma terial benefits from public distribution of these 
phonograms or video recordings; 
 
c/ Disputes between broadcasting organizations and users of rights of broadcasting organizations over 
material benefits from audio or video recordin g or public distribution of these organizations’ 
broadcasts;  
d/ Disputes between performers, producers of phonograms or video recordings or broadcasting 
organizations and entities exercising related rights th at are not required to ask for authority or pay 
royalties or remunerations for the reason that the use of these performances, phonograms, video 
recordings or broadcasts affects their normal utili zation and cause harms to rights of performers, 
producers of phonograms or video record ings or broadcasting organizations; 
 
e/ Disputes between authors, copyright owne rs, performers, producers of phonograms or video 
recordings or broadcasting organizations and users of  related rights that ar e not required to ask for 
authority but are obliged to pay royalties or remunera tions for the reason that users are not required to 
pay royalties or remunerations or the use affect s the normal utilization of performances, phonograms, 
video recordings, broadcasts and causes harms to rights of performers, producers of phonograms or 
video recordings or br oadcasting organizations; 
 f/ Disputes over related rights to performances, phonograms, video recordings  or broadcasts (who are 
owners of these performances, phonograms, video recordings or broadcasts);  g/ Disputes arising from acts of infringing upon related rights; 
 
h/ Disputes over succession or inheritance of related rights;  i/ Other disputers over related rights as specified by law.  
3. Disputes over industrial property rights 
 a/ Disputes over the right to register inventi ons, industrial designs, layout designs, marks or 
geographical indications;  IP/N/1/VNM/E/2 
Page 4  
 
  b/ Disputes over the priority right to applications for registration of inventions, industrial designs or 
marks;  c/ Disputes over author rights to inventions, industrial designs or layout designs; d/ Disputes over moral rights or economic rights of authors of inventions, industrial designs or layout 
designs; 
 e/ Disputes over temporary rights to inventions, i ndustrial designs or layout designs between entities 
having the right to file applications for registration of inventions, industrial designs or layout designs 
and entities currently using these industrial property objects, or disputes over compensations between 
holders of protection titles and users of inven tions, industrial designs  or layout designs; 
 f/ Disputes over the right to prior use of inventi ons or industrial designs between owners of these 
inventions or industrial designs and prior users of these inventions or industrial designs related to the 
transfer of such right to other entities, expansion of the use scope or volume without authority of 
owners of these industrial property objects; 
 g/ Disputes over compensations between holders of protection titles of inventions, industrial designs 
or layout designs and users of these inventions, i ndustrial designs or layout designs during the period 
from the date of publication of protection title applic ations on the Industrial Property Official Gazette 
to the date of grant of protection titles; 
 
h/ Disputes over rights of owners of industrial property objects (including disputes over right portions of co-owners);  i/ Disputes arising from infringements of industrial property rights; 
 
j/ Disputes arising from infringements of rights of au thors of inventions, industrial designs or layout 
designs;  k/ Disputes over remunerations paid to authors of inventions, industrial designs or layout designs; 
 
l/ Disputes over contracts on assignment of indust rial property rights or contracts on licensing of 
industrial property objects; or disputes over c ontracts on industrial property representation services; 
 m/ Disputes over succession or inheritance of industr ial property rights, economic rights of authors of 
inventions, industrial designs or layout designs; 
 
n/ Disputes arising from acts of unfair competition;  o/ Other disputes over industrial property rights as specified by law.  II. Right to institute civil laws uits on intellectual property rights 
 
1. Right to institute civil lawsuits over copyright or related rights  a/ Individuals and organizations defined in Article 14 of the Government’s Decree No. 100/2006/ND-
CP of September 21, 2006, detailing and guiding the implementation of a number of articles of the 
Civil Code and the Intellectual Property Law on copy right and related rights (below referred to as 
Decree No. 100/2006/ND-CP for short) may institute ci vil lawsuits over copyright or related rights at 
competent people’s courts for protection of their rights and lawful interests.   IP/N/1/VNM/E/2 
 Page 5 
 
 
  b/ Concerned state agencies and organizations may,  within the scope of their tasks and powers, 
institute civil lawsuits to protect public interests and the State’s interests in the domain of copyright 
and related rights according to Clause 3, Article 162 of the Civil Procedure Code and the guidance in 
Item 2.1, Section 2, Part I of Resolution No . 02/2006/NQ-HDTP of May 12, 2006, of the Judges’ 
Council of the Supreme People’s Court, guiding th e implementation of the provisions of the Civil 
Procedure Code’s Part Two on Procedures fo r Handling Cases at First-Instance Courts. 
 2. Right to institute civil lawsuits over industrial property rights belongs to: 
 a/ Individuals and organizations i nvolved in disputes over the right to register inventions, industrial 
designs, layout designs, marks or geographical indications; 
 b/ Authors or co-authors of inventio ns, industrial designs, layout designs; 
 c/ Holders of protection titles of inven tions, industrial designs, layout designs; 
 
d/ Holders of certificates of registered or interna tionally registered marks, which are accepted for 
protection in Vietnam, owners of well known marks;  e/ Holders of industrial property rights to business secrets or trade names;  
f/ Individuals and organizations ha ving the lawful right to use geographical indications, organizations 
or collectives representing individuals and organiza tions empowered to use geographical indications; 
 g/ Organizations and individuals  possessing industrial property objects involved in acts of unfair 
competition in the domain of industrial property; 
 
h/ Lawful heirs of authors of inventions, industrial designs or layout designs; or lawful heirs or heirs 
of industrial property rights of owners of industrial property objects;  i/ Individuals and organi zations that are lawfully assigned th e ownership of industrial property 
objects; 
 
j/ Individuals and organizations that are lawfully licensed to use industrial property objects;  k/ Individuals and organizations that are licensed to use industrial property objects under decisions of 
competent state agencies; 
 
l/ Other rights holders as defined by law.  III. Conditions on institution of civil lawsuits over intellectual property rights  1. Conditions on institution of a civil lawsuit over copyright or related rights 
 
a/ The copyright and related rights have been est ablished under Clauses 1 and 2, Article 6 of the 
Intellectual Property Law.  The author, copyright holder or related rights hol der may file an application for a registration 
certificate of copyright or related rights under Artic le 49 of the Intellectual Property Law. However, 
this is not a compulsory procedure for enjoyment of copyright or related rights.  If parties involved in a dispute over copyright or rela ted rights institute a lawsuit to request a court to 
protect their lawful rights and interests, the court shall consider the case regardless of whether or not IP/N/1/VNM/E/2 
Page 6  
 
  they have registration certificates of copyright or related rights or whether or not they have filed 
applications for registration of copyright or related rights.  b/ The duration of protection of copyright or related rights has not expired under the law on intellectual property. 
 
The author, copyright holder and related rights holder may only exercise their moral rights and 
economic rights within the scope and in the durati on prescribed by the law on intellectual property. 
 The duration of protection of copyright or related rights is specified in Clauses 2 and 3, Article 739 of 
the 2005 Civil Code, Articles 27 and 34 of the Inte llectual Property Law and Article 26 of Decree No. 
100/2006/ND-CP.  Upon the expiration of the duration of protection of copyright or related rights under the above 
provisions (except for moral rights specified in Cl auses 1, 2 and 4, Article 19 of the Intellectual 
Property Law), rights of the author, copyright ho lder and related rights holder will no longer be 
protected by the State and the law. Unless the la w specifies no protection duration for copyright, the 
court shall accept lawsuit petitions for handling onl y in case these rights are still in the protection 
duration.  2. Conditions on institution of a civ il lawsuit over industrial property rights 
 
2.1. Industrial property rights have been established on the grounds specified in Clause 3, Article 6 of the Intellectual Property Law and Article 6 of the Government’s Decree No. 103/2006/ND-CP of 
September 22, 2006, detailing and guiding the im plementation of a number of articles of the 
Intellectual Property Law on industrial property (b elow referred to as Decree No. 103/2006/ND-CP 
for short). 
 It is necessary to clearly identify industrial prope rty object(s) (invention, industrial design, layout 
design or mark) being the subject matter of the di spute in order to determine the grounds for the 
establishment of industrial property rights to such  object(s) because grounds for the establishment of 
industrial property rights to an industrial property object are not the same in any circumstances and 
the registration procedure is required in some case s but not in other cases. For example, industrial 
property rights to a mark are established under a decision of the National Office of Intellectual 
Property (the Ministry of Science and Technolo gy) on the grant of a protection title under the 
registration procedure specified in the Intellectual Property Law and other relevant legal documents, 
or on the recognition of an international registrati on under a treaty to which the Socialist Republic of 
Vietnam is a contracting party. Particularly, indus trial property rights to a well known mark can be 
established on the basis of the wide and practical use of that mark and the criteria specified in 
Article 75 of the Intellectual Property Law wit hout having to pass the registration procedure. 
 For a dispute over industrial property rights to an  industrial property object and it is necessary to 
ascertain whether or not these industrial property rights  have been lawfully established, the following 
grounds must be based on: 
 a/ The protection title granted by the National Office of Intellectual Property (the Ministry of Science 
and Technology) to the party filing the registrati on application for an invention, layout design, 
industrial design, mark (other than well known marks)  or geographical indication. For internationally 
registered marks under the Madrid Agreement a nd the Madrid Protocol, decisions of state 
management agencies on recognition of these marks must be based on.   IP/N/1/VNM/E/2 
 Page 7 
 
 
  b/ Protection conditions for indus trial property objects being well known marks, trade names, business 
secrets or the right to suppression of unfair competiti on specified in Sections 4, 5 and 7, Chapter VII 
of the Intellectual Property Law.  2.2. The duration of protection of industrial pr operty rights has not expired under the law on 
intellectual property. 
 a/ For industrial property rights which have been esta blished for inventions, industrial designs, layout 
designs, marks and geographical indications, prot ection titles granted to each type of industrial 
property objects must be based on to determine the scope of protection, which is stated in these 
protection titles. 
For example: The scope of protection of an inve ntion should be determined based on the invention 
patent granted by the National Office of Intell ectual Property (the Ministry of Science and 
Technology).  
b/ For industrial property rights established for trad e names and business secrets, the scope of rights 
shall be determined under Clauses 2 and 3,  Article 16 of Decree No. 103/2006/ND-CP. 
 c/ The duration of protection of industrial property ri ghts shall be determined according to the validity 
duration of protection titles specified in Article 93 of the Intellectual Property Law. In case of 
expiration of the validity duration or invalidation of a protection title for an industrial property object, 
industrial property rights to this object also terminate. 
 If the protection duration expires or an industria l property rights protection title expires or is 
invalidated, rights of the industrial property rights holder will no longer be protected by the State and the law. Courts shall therefore accept lawsuit pe titions for handling only if the infringement is 
committed when the protection title is still valid or the industrial property object is still in the 
protection duration.  IV. Application of law  1. Application of domestic legal documents 
 
1.1. In case of inconsistency between the Intell ectual Property Law’s provisions on intellectual 
property and relevant provisions of other laws, th e Intellectual Property Law’s provisions prevail. 
Before deciding on the application of the Intell ectual Property Law’s provisions or other legal 
documents, it is necessary to review separately le gal documents containing provisions on intellectual 
property  (including the 2005 Ci vil Code), and compare the intellectual property provisions of these 
legal documents with relevant provisions of the Intellectual Property Law in order to identify 
inconsistencies between them.  Example 1: Clause 3, Article 738 of the 2005 Civil Code specifies economic rights under copyright, including: 
 
a/ Reproduction of works;  b/ Authorized making of derivative works;  
c/ Distribution or import of original works and copies thereof; 
 d/ Communication of works to the public;  e/ Lease of original computer programs or copies thereof. IP/N/1/VNM/E/2 
Page 8  
 
   
Clause 1, Article 20 of the Intellectual Property Law provides for six economic rights. Compared to Clause 1, Article 20 of the Intellectual Property Law, Clause 3, Article 738 of the 2005 Civil Code provides differently for the right to display works to the public or lease original cinematographic 
works or copies thereof. Therefore, the provisions of Point b or f, Clause 1, Article 20 of the 
Intellectual Property Law should be applied to  the settlement of disputes over these rights. 
 Example 2: The Customs Law stipulates the temp orary postponement of customs procedures for 
imports or exports requiring the protection of in tellectual property rights in Articles 57, 58 and 59. 
Meanwhile, the Intellectual Property Law stipulates the control of imports and exports related to 
intellectual property in Articles 216 thru 219. As a re sult, if the Intellectual Property Law’s provisions 
on control of imports and exports related to intellectual property ar e affirmed to be different from 
relevant provisions of the Customs Law, the provi sions of the Intellectual Property Law prevail. 
 1.2. For civil matters related to intellectual pr operty which are not governed by the Intellectual 
Property Law, the relevant provisions of the Civil Code will apply. 
 Upon application of law to the settlement of disp utes over intellectual property rights, the provisions 
of the Intellectual Property Law and the 2005 Civil Code (Part Six on Intellectual Property Rights and 
Technology Transfer, from Article 736 to Article 753) must be based on to ascertain whether or not the subject matters of those disputes are specified in the Intellectual Property Law or the 2005 Civil 
Code. If there are grounds to affirm that these subj ect matters are not specified in the Intellectual 
Property Law but are specified in the 2005 Civil Code , the relevant provisions of the 2005 Civil Code 
will apply.  For example: Under Article 40 of the Intellectual Pr operty, organizations and individuals that inherit 
the copyright according to the provisi ons of law on inheritance will be holders of the rights specified 
in Article 20 and Clause 3, Article 19 of th e Law. Because the Intellectual Property does not 
specifically stipulate the inheritance of copyright, the provisions of the 2005 Civil Code’s Part Four 
on Inheritance must be applied to the settleme nt of disputes over copyright inheritance. 
 2. Application of treaties 
 
If a treaty to which the Socialist Republic of Viet nam is a contracting party contains provisions 
different from those of the Intellectual Propert y Law, provisions of that treaty prevail. 
 2.1. A treaty to which the Socialist Republic of Vietnam has signed or acceded means a written 
agreement concluded or acceded to in the name of  the State or the Government of the Socialist 
Republic of Vietnam with one or more than one na tion, international organization or other entities of 
international law, irrespective of its title: treaty,  convention, agreement, pact, accord, protocol, 
memorandum of understanding,  diplomatic note or a document otherwise titled (Clause 1, Article 2 of 
the Law on Conclusion, Accession and Implementation of Treaties).  
2.2. Treaties include: 
 a/ Multilateral treaties  For example: 
 
- The 1971 Berne Convention for the Protection of Literary and Artistic Works.  - The 1883 Paris Convention for the Protection of Industrial Property (revised in 1979).   IP/N/1/VNM/E/2 
 Page 9 
 
 
  - The 1891 Madrid Agreement Concerning the Intern ational Registration of Marks and the Madrid 
Protocol Relating to the Madrid Agreement Con cerning the International Registration of Marks. 
 b/ Bilateral treaties  
For example: 
 - The 2001 Vietnam-US Bilateral Trade Agreement.  - The 2000 Vietnam-Switzerland Agreement for th e Protection of Intellectual Property Rights. 
 
c/ Multilateral or bilateral treaties might be t hose established exclusively for the protection of 
intellectual property or those concerning differe nt domains, including protection of intellectual 
property.  
For example: 
 - The 1971 Berne Convention is a multilateral treaty  established exclusively for the protection of 
literary and artistic works.  - The Vietnam-US Bilateral Trade Agreement is a treaty concerning different domains, including 
provisions on intellectual property protection (Chapt er I: Trade in Goods, Chapter II: Intellectual 
Property Rights, and Chapter III: Trade in Services).  2.3. Conditions on application of treaties  
a/ Treaties on intellectual property to which the Soci alist Republic of Vietnam is a contracting party 
are in force when acts or events being subject matters of disputes occur.  b/ Provisions of these treaties on intellectual prope rty are different from those of Vietnam’s legal 
documents on the same matter. For example: Regarding the copyright protection duration, there is an inconsistency between 
Article 27 of the Intellectual Property Law and Clause  4, Article 4 of the Vietnam-US Bilateral Trade 
Agreement. In this case, the provisions of the Viet nam-US Bilateral Trade Agreement must be applied 
to settling copyright disputes between Vietna mese and US organizati ons and individuals. 
 c/ In case a Vietnamese legal document contains pr ovisions similar to those of a treaty on the same 
matter, Vietnamese legal provisions will apply. 
 d/ In case an intellectual property-related matter is not governed by Vietnamese law, relevant 
provisions of a treaty concerning this matter will apply.  e/ In case of a dispute over intellectual property rights involving individuals  or organizations of a 
foreign country which, together with the Socialis t Republic of Vietnam, is a contracting party of 
treaties, the treaty with the latest date of entry into force will apply, unless otherwise jointly provided 
for or agreed by this country and the Socialist Republic of Vietnam. 
 For example: 
 
Clause 3, Article 1, Chapter II (Intellectual Prope rty Rights) of the Vietnam-US Trade Agreement 
stipulates:  IP/N/1/VNM/E/2 
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  “To provide adequate and effectiv e protection and enforcement of intellectual property rights, each 
Party shall, at a minimum, give effect to this  Chapter and the substantive economic provisions of: 
 A. the Geneva Convention for the Protection of  Producers of Phonograms Against Unauthorized 
Duplication of their Phonograms, 1971; 
 
B. the Berne Convention for the Protection of Literary and Artistic Works, 1971;  C. the Paris Convention for the Protection of Industrial Property, 1967;  
D…. 
 E. the Convention Relating to the Distribution of  Program-Carrying Signals Transmitted by Satellite 
(1974).”  
Therefore, relevant provisions of both the Vietnam-US Trade Agreement and the Berne Convention 
must be applied to settling copyright disput es involving US individuals and organizations. 
 V. Application of transitional provisions to settling disputes over intellectual property rights 
 1. Application of the law on intellectual property to settling disputes over copyright and related rights 
 
Copyright and related rights protected under legal do cuments, which took effect before the effective 
date of the Intellectual Property Law (July 1, 2006), will continue to be protected if their protection 
duration was still valid by this date. Courts shall therefore apply the provisions of the Intellectual 
Property Law when settling disputes over these rights. 
 
2. Application of the law on intellectual propert y to settling disputes over industrial property rights 
 “For industrial property rights established under pr otection titles granted under legal provisions in 
force before the effective date of the Intellectua l Property Law (July 1, 2006), and if procedures for 
maintenance, extension, modification, licensing, ownership assignment or settlement of disputes over 
those protection titles are compliant with the provisi ons of the Intellectual Property Law, except for 
those on grounds for invalidation of protection titles, only provisions of legal documents in force by 
the time of grant of those protection titles will apply.”  Courts shall therefore apply the provisions of the Intellectual Property Law when settling disputes 
over the above industrial property rights, except for dis putes related to the determination of validity of 
protection titles, to which provisions concerning gro unds for invalidation of protection titles of legal 
documents in force by the time of grant of those protection titles will apply.  VI. Intellectual property assessment  
Disputes over intellectual property rights constitute a type of civil disputes and are generally settled 
under procedures specified in the Civil Proce dure Code. Upon receiving requests for assessment, 
courts shall refer to Article 90 of the Civil Procedur e Code and the guidance in Section 6, Part IV of 
Resolution No. 04/2005/NQ-HDTP of September 17 , 2005, of the Judges’ Council of the Supreme 
People’s Court, guiding a number of provisions of th e Civil Procedure Code on “burden of proof and 
evidence,” the provisions of Clause 3, Article 201 of the Intellectual Property Law, and Points a and c, 
Clause 2, Article 40 of Decree No. 105/2006/ND-CP of  September 22, 2006, de tailing and guiding the 
implementation of a number of articles of the Inte llectual Property Law on protection of intellectual 
property rights and state management of intell ectual property (below referred to as Decree 
No. 105/2006/ND-CP for short).  IP/N/1/VNM/E/2 
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B. SOME PROVISIONS OF THE INTELLECTUAL PROPERTY LAW  I. Regarding claims for compensations for damage  (Articles 204 and 205 of the Intellectual Property 
Law) 
 
1. Compensable damage caused by infringements of  intellectual property rights includes material 
damage and spiritual damage.  1.1. Material damage includes: 
 
a/ Property loss;  b/ Decreases in income and profit;  
c/ Loss of business opportunities; 
 d/ Reasonable expenses for prevention and remedy of damage.  1.2. Spiritual damage includes:  
Damage to the honor, dignity, prestige, reputation and other spiritual losses caused to authors of 
literary, artistic and scientific works; to performers;  to authors of inventions, industrial designs or 
layout designs.  1.3. Material and spiritual damage is actual physical and spiritual losses directly caused by 
infringements to intellectual property rights hold ers and determined on the bases specified in 
Clause 2, Article 16 of Decree No. 105/2006/ND-CP. When the provisions of Clause 2, Article 16 of Decree No. 105/ND-CP are applied, attention must be paid to the following points: 
 An actual loss is regarded as having occurre d when all of the following bases exist: 
 
a/ Physical or spiritual benefit is real and belongs to the aggrieved persons. 
Physical or spiritual benefit is the outcome (produc t) of intellectual property rights and the aggrieved 
person is entitled to that physical or spiritual benefit.  b/ The aggrieved person could achieve that physical or spiritual benefit. 
The aggrieved person could achieve (collect) th at physical or spiritual benefit under certain 
conditions, provided no infringement is committed.  c/ There is a decrease in or loss of the benefit of  the aggrieved person after the intellectual property 
right infringement is committed as compared to the possibility of achieving that benefit when such 
infringement does not happen and it constitutes the dir ect cause of such decrease in or loss of that 
benefit, specifically as follows: 
 Before an intellectual property right infringement happens, the aggrieved pe rson has already achieved 
the physical or spiritual benefit. Upon the co mmission of the infringement, the aggrieved person 
suffers from a decrease in or loss of the previously achieved benefit, and there exists a causal relation 
between the infringement and the benefit decrease or loss. The benefit decrease or loss is the 
inevitable consequence of the infringement and vice versa the infringement is the direct cause of the 
benefit decrease or loss.  IP/N/1/VNM/E/2 
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  1.4. Losses of property are determined under Article 17 of Decree No. 105/2006/ND-CP 
 When aggrieved persons make claims for compensati ons for losses of property, they shall clearly state 
the in-cash value of infringed intellectual property objects at the time of infringement and bases for 
determination of this value. 
 
For example: In case of a claim for compen sation for a loss of property caused by a mark 
infringement, it is necessary to clearly state the value of the mark at the time of infringement and bases for determination of the mark value.  
1.5. Decrease in incomes or profits is determin ed under Article 18 of Decree No. 105/2006/ND-CP. 
 In order to determine decrease in incomes or profits  of aggrieved persons, it is necessary to determine 
whether or not they earn incomes or pr ofits before infringements are committed. 
 
a/ Incomes or profits include: 
 a.1/ Incomes or profits earned by aggrieved persons from the direct use and exploitation of intellectual 
property objects.  For example: The owner of an invention manufactur es patented products in accordance with Point a, 
Clause 1, Article 124 of the Intellectual Property Law and sell them for profits. 
 a.2/ Incomes or profits earned by aggrieved pers ons from the lease of infringed intellectual property 
objects (original cinematographic works or computer programs or copies thereof).  
For example: The holder of copyright to a cinemat ographic work or a computer program exercises the 
economic right provided for at Point f, Clause 1, Article 20 of the Intellectual Property Law by leasing the original cinematographic work or computer program or copies thereof and receiving rents or other physical benefits from organizations and individuals  renting that cinematographic work or computer 
program.  
a.3/ Incomes or profits earned by aggrieved persons  from the licensing of intellectual property objects. 
For example: The owner of an invention signs a c ontract on licensing of that invention to another 
individual or organization and receives a li censing payment as agreed in the contract. 
 b/ Based on determined incomes or profits of aggrie ved persons, it is necessary to determine the level 
of decrease in their incomes or profits on one of th e bases specified in Clause 2, Article 18 of Decree 
No. 105/2006/ND-CP.  For example: If incomes or profits are earned fro m the direct use or exploitation of intellectual 
property rights, levels of actual incomes or pr ofits earned before and after infringing acts are 
committed must be compared in order to clearly iden tify the level of income or profit decrease. If an 
aggrieved person’s income or profit amount earned af ter an infringement is committed is smaller than 
his/her income or profit amount earned before the infringement is committed, the difference between 
these amounts is the aggrieved person’s actual income or profit decrease.  Upon determination of incomes or profits of aggr ieved persons, it is necessary to clearly identify 
objective factors which affect the increase or decreas e of incomes or profits of aggrieved persons but 
are not related to the infringements of intellectua l property rights in order to ensure the correct 
determination of the aggrieved persons’ actual income or profit decreases.  
  IP/N/1/VNM/E/2 
 Page 13 
 
 
  Any case in which an infringement of intellectual property rights is actually committed and the 
determination of damage shows that  the aggrieved party’s income or profit amounts earned after the 
infringement is committed do not decrease compared to those earned before the infringement but are 
still smaller than those they should actually have ear ned in the absence of the infringement would also 
be considered a case of income or profit decrease. 
 
For example: In 2004, Company A invested in a new technological line to manufacture building steel 
bearing the mark “TN” which is sold well on th e construction market. Based on received product 
orders, Company A could sell up to 200,000 tons of steel “TN” and earn a turnover of VND 10 billion 
and a profit VND 2 billion (100%). Company B illegally  affixed the mark “TN” of Company A on its 
steel products and sold them on the market, causi ng a loss of 20% of Company A’s market share. 
Consequently, Company A could not sell 40,000 tons of steel and su ffered a decrease of 20% in both 
expected turnover and profit (VND 400 million). Though Company A’s profit amount earned in 2006 
saw no decrease compared to that earned in 2005,  its expected profit amount actually decreased by 
VND 40 million due to Company B’s infringement. This  decrease is therefore considered a loss of 
Company A. 
 1.6. Losses in business opportunities are determined under Article 19 of Decree No. 105/ND-CP.  A business opportunity means a favorable circumstance or an actual possibility of directly using or exploiting, leasing, licensing or assigning intellectua l property objects by intellectual property rights 
holders to other parties for profit. 
 a/ Business opportunities include:  a.1/ Actual possibility of directly using or explo iting intellectual property objects in business. More 
specifically, the direct use or exploitation of an in tellectual property object in business (on the market 
for profit) by a right holder may become po ssible and realistic under certain conditions. 
 a.2/ Actual possibility of leasing intellectual prope rty objects (original cinematographic works or 
computer programs or copies thereof) to other pers ons. More specifically, a right holder can lease an 
intellectual property object to another individua l or organization and has actually negotiated and 
agreed with that individual or organization on principal terms of a contract on lease of the object. 
Such a contract will be signed and performed under normal conditions if there is no infringement of a 
third party.  a.3/ Actual possibility of licensing or assigning intellectual property objects to other persons. More 
specifically, a right holder receives an order afte r making negotiations and reaching an agreement 
with a partner on principal terms of a contract. Such a contract will be signed and performed if there is 
no infringement of a third party.  a.4/ Other business opportunities the loss of wh ich is directly caused by an infringement. 
Opportunities mentioned in this case include opportunities of business entities to negotiate with 
partners, to conduct business or enter into coopera tion in investment, marketing, advertisement or 
trade promotion through internati onal exhibitions or displays, etc., which are lost because their 
intellectual property objects are appropriated by others.  b/ A loss in business opportunities means loss of the in-cash value of the income that the aggrieved 
person would have achieved in an y of the cases referred to in Clause 1, Article 19 of Decree 
No. 105/2006/ND-CP and the guidance at Point a of this Item 1.6, if no infringement had been 
committed.  IP/N/1/VNM/E/2 
Page 14  
 
  When considering claims for compensations fo r loss in business opportunities, courts shall ask 
aggrieved persons to clearly stat e and prove their lost business oppor tunities, which case they fall into 
and their in-cash value for consideration and decision.  1.7. Reasonable expenses for prevention and reme dy of damage include expenses specified in 
Article 20 of Decree No. 105/2006/ND-CP. 
 1.8. Spiritual damage mentioned in Item 1.2, Secti on 1 of this Part I is caused by infringements of 
moral rights of authors of literary, artistic or scien tific works; performers or authors of inventions, 
industrial designs or layout designs; harms to authors’ honor or dignity, or decrease in or loss of 
authors’ credit (prestige), reputation or confiden ce due to misunderstanding, etc., and compensations 
therefor must be paid.  2. Bases for determination of compensations to be paid for damage caused by infringements of 
intellectual property rights 
 
2.1. If plaintiffs can prove that infringements of intellectual property rights have caused material 
damage to them, they may request courts to deci de on levels of compensation on one of the bases 
specified in Clause 1, Article 205 of the Intellectual Property Law as chosen by them.  a/ Upon determining profits earned by defendants as  a result of their infringements of intellectual 
property rights as specified at Point a, Clause 1, Ar ticle 205 of the Intellectual Property Law, expenses 
paid by defendants should be subtracted from total turnover earned by defendants or part of 
defendants’ profits which is tur nover from other activities not related to their infringements, if any, 
should be determined.  
Total turnovers of defendants are calculated on th e basis of all invoices and vouchers on the sale or 
use by defendants of works infringing upon in tellectual property rights of plaintiffs. 
Courts shall determine profits of defendants after subtracting all expenses from total turnovers of 
defendants.  Profits earned by defendants from their infringements of intellectual property rights can be accounted 
into the total in-cash material damage of plainti ffs only if decreased profit amounts of plaintiffs have 
not yet been accounted into the total material damage.  b/ The price of the licensing of an intellectual property object specified at Point b, Clause 1, 
Article 205 of the Intellectual Property Law is determined by one of the following methods: 
 
b.1/ It is the payable amount in case the right hol der and the infringer have freely agreed and signed a 
contract on licensing of that intellectual property object (reasonable copyright fee and licensing fee). 
The infringement is the very act of using the intellectual property object;  b.2/ It is the presumed licensing price of the intelle ctual property object, which is determined by the 
method of determining the sum of money which the right holder (the plaintiff) and the licensee (the 
defendant) may have agreed upon by the time the in fringement is committed, if the parties voluntarily 
agree with each other on that sum of money;  b.3/ It is based on licensing prices of intellectual property objects applied in the relevant domain and 
referred to in previous practices of licensing intellectual property objects (for example, cases of 
licensing of intellectual property objects in the relevant domain in which payments or security 
amounts have been made before the infringement is committed, with licensing fee levels widely 
considered reasonable or uniformly applied in Vietnam).   IP/N/1/VNM/E/2 
 Page 15 
 
 
  c/ The court shall apply the compensation level speci fied at Point c, Clause 1, Article 205 of the 
Intellectual Property Law (law-specified compensati ons for damage) only in case it is impossible to 
determine the level of compensations for the material damage of the plaintiff on the bases specified at 
Point a and b, Clause 1, Article 205 of the Intellectual Property Law.  
c.1/ The plaintiff shall prove that the determina tion of the level of compensation for the material 
damage in this case is impossible or the market  for lawful goods is not enough to determine the 
plaintiff’s damage based on the decrease in the sale turnover of the infringed goods after the 
infringement is committed, and request the court to apply the law-specified compensation level. 
However, if the defendant can prove that the plain tiff is dishonest in provin g the damage because the 
compensation level to be paid under a claim made  under provisions of Points a and b, Clause 1, 
Article 205 of the Intellectual Property Law is lowe r than the law-specified compensation level and 
that the plaintiff gives a pretext for enjoying the law-specified compensation level, and the defendant 
can prove the plaintiff’s actual damage level, the c ourt shall reject the plaintiff’s claim and may accept 
the defendant’s request to decide on the compensation level. 
 
c.2/ The court shall decide on compensations for ma terial damage in the case specified at Point c, 
Clause 1, Article 205 of the Intellectual Propert y Law at the level of between VND 5 million and 
VND 500 million. In order to ensure that its decisi on on compensation is reasonable and suitable in 
each specific case and protects lawful rights and inter ests of aggrieved persons, the court shall base 
itself on the nature and severity of infringements of copyright and related rights, specifically as 
follows: 
 - Circumstance and motive of the infringement (int entional, unintentional or compelled infringement, 
infringement committed by a person due to his/her mate rial or spiritual dependence on another person, 
first-time infringement, recidivism, etc.); 
 
- Way of committing the infringement (organized  or unorganized infringement, infringement 
committed by a person on his/her own or after being bribed, deceived or forced by another person); 
 - Geographical area, period of time, volume and scale of the infringement (it is committed in a district 
of a province or many districts of different provin ces, during a long or short period of time, involves a 
large or small quantity of things, on a commercial scale, etc.); 
 - Impacts and consequences of the infringement (lo cal or international impacts on the honor, dignity, 
prestige or reputation of the right holder; mate rial consequences caused to the right holder). 
 
c.3/ The court shall base itself on each infringed intellectual property object to set compensation 
levels for material damage within the limit specified at Point c.2, Item 2.1 of this Section 2.  If a dispute involves more than one infringed inte llectual property object, the aggregate compensation 
amount for all these objects must not exceed VND 500 million.  
2.2. Courts shall decide on compensations for spiritual damage when plaintiffs prove that 
infringements of intellectual property rights have cau sed spiritual damage to them. If plaintiffs cannot 
prove their spiritual damage, courts will not accept their claims. Depending on each specific case and 
the level of spiritual damage of a right holder, such as dishonor, harmed dignity, loss of prestige or 
reputation and other spiritual damage caused by an infringement of intellectual property rights to the 
right holder, the court shall decide on a comp ensation of between VND 5 (five) million and VND 50 
(fifty) million.  2.3. When the provisions of Article 205 of the Inte llectual Property Law and the guidance in Item 2.1, 
Section 2 of this Joint Circular are applied, if a dispute involves several infringed intellectual property IP/N/1/VNM/E/2 
Page 16  
 
  objects, the compensation level shall be determin ed for each object. If the court can determine a 
compensation level for material damage under the prov isions of Points a and b, Clause 1, Article 205 
of the Intellectual Property Law for some objects but cannot do so for other objects, it may simultaneously apply all the bases specified in Clau se 1, Article 205 of the Intellectual Property Law 
at the same time to determine an overall compensation level. 
 
2.4. Regarding the payment of reasonable costs of hiring attorneys In civil procedures, according to Clause 3, Article  144 of the Civil Procedure Code, costs of hiring 
attorneys must be paid by parties that request a ttorneys, unless otherwise agreed by involved parties. 
 
However, pursuant to Clause 3, Article 205 of th e Intellectual Property Law, intellectual property 
rights holders may request courts to order orga nizations or individuals that have committed 
infringements of intellectual property rights to pay reasonable costs of hiring attorneys.                                  Reasonable costs of hiring attorneys are actual e xpenses necessary for intellectual property cases and 
depending on characteristics and complexity of th ese cases, skills and qualificat ions of attorneys and 
time volume required for studying these cases. Cost s include remunerations paid for attorneys and 
expenses for their travel and accommodation. Rem unerations for attorneys are agreed upon between 
them and their clients in legal service cont racts and calculated on the bases and methods for 
calculation of remunerations specified in Article 55 of the Law on Lawyers.  
II. Regarding the application of provisional ur gent measures (Articles 206, 207 and 208 of the 
Intellectual Property Law)  1. Regarding the right to request the application of provisional urgent measures (Article 206 of the 
Intellectual Property Law). 
 
1.1. Intellectual property rights holders may request courts to apply provisi onal urgent measures upon 
or after the institution of civil lawsuits over intellectual property rights.  a/ If they request the application of provisional ur gent measures specified in Articles 206 thru 210 of 
the Intellectual Property Law, courts shall apply the provisions of these articles of the Intellectual 
Property Law. 
 b/ If they request the application of provisional urgent measures not specified in the Intellectual 
Property Law but specified in Chapter VIII of the Civ il Code, courts shall apply the provisions of that 
Chapter of the Civil Code. When intellectual propert y rights holders request courts to apply one or 
several provisional urgent measures specified in Artic le 102 of the Civil Procedure Code, courts shall 
consider whether or not these requested provision al urgent measures are related to intellectual 
property rights for appropriate application.  1.2. An intellectual property rights holder may re quest a court to apply a provisional urgent measure 
in the cases specified in Clause 1, Article 206 of th e Intellectual Property Law, specifically as follows: 
 
a/ There exists a danger of irreparable damage to that intellectual property rights holder. The damage 
is the inevitable consequence of an infringement which is likely to happen and once it is committed, 
its consequence is irreparable for the intellectual property rights holder unless that provisional urgent 
measure is applied. 
 
b/ Goods suspected of infringing upon intellectual property rights or evidence related to an infringement of intellectual property rights is likely to be dispersed or destroyed unless it is protected 
in time.   IP/N/1/VNM/E/2 
 Page 17 
 
 
  - Disperse means to quickly scatter goods suspected of infringing upon intellectual property rights or 
evidence related to an infringement of intell ectual property rights to many places for hiding. 
 - Destroy means to deform or to make goods suspected of infringing upon intellectual property rights or evidence related to an infringement of intellect ual property rights to disappear without any traces. 
 
1.3. When requesting a court to apply a provisiona l urgent measure, an intellectual property rights 
holder shall clearly identify the case as specified in Clause 1, Article 206 of the Intellectual Property 
Law into which his/her request falls. If a written re quest for the application of a provisional urgent 
measure is filed together with a petition for the in stitution of a lawsuit, the petition must be made 
under Article 164 of the Civil Procedure Code. 
 1.4. If the contents of a petition for the institution of  a lawsuit are sufficient for a court to determine 
that the acceptance of the petition and the handling of the case fall under its competence, though some 
other contents need to be amended or supplemente d, that court shall promptly accept and handle the 
written request for the application of a provisional urgent measure under Clause 3, Article 117 of the 
Civil Procedure Code and the guidance in Section 6 of Resolution No. 02/2005/NQ-HDTP of April 27, 2005, of the Judges’ Council of the Supr eme People’s Court, guiding the implementation of 
a number of provisions of the Civil Procedure C ode’s Chapter VIII on provi sional urgent measures. 
Requests for modification or supplementation of petiti ons for institution of lawsuits and acceptance of 
cases for handling must comply with Articles 169 and 171 of the Civil Procedure Code. 
 
Courts competent to issue decisions on the application of provisional urgent measures are those competent to accept petitions for institution of lawsu its and handle cases under Articles 33, 34, 35 and 
36 of the Civil Procedure Code and the guidance in Section 1, Part I of Resolution No. 01/2005/NQ-HDTP of March 31, 2005, of the Judges’ Council of the Supreme People’s Court, guiding the 
implementation of a number of provisions of the Civi l Procedure Code’s Part I on general provisions. 
 1.5. Courts shall decide on the application of prov isional urgent measures at the request of intellectual 
property rights holders before listening to parties subject to those measures. 
 2. Regarding provisional urgent measures (Ar ticle 207 of the Intellectual Property Law). 
 
2.1. Courts shall apply provisional urgent measur es specified in Clause 1 of Article 207 of the 
Intellectual Property Law and other measures specifi ed in Article 102 of the Civil Procedure Code 
when so requested by involved parties.  
2.2. Involved parties may request courts to appl y concurrently provisional urgent measures specified 
in Clause 1 of Article 207 of the Intellectual Propert y Law and those specified in Article 102 of the 
Civil Procedure Code or to apply only provis ional urgent measures specified in Clause 1 of 
Article 207 of the Intellectual Property Law or thos e specified in Article 102 of the Civil Procedure 
Code;  
2.3. Goods suspected of infringing upon intellectua l property rights, raw materials, materials or means 
of production or trading of these goods, which are s ubject to provisional urgent measures, must be 
seized and managed pending court rulings on disputes.  Plaintiffs are obliged to make advance paymen ts for the seizure and preservation of goods, raw 
materials, materials or means of production or trading of these goods. 
 Upon ruling on disputes at the request of plaintiffs , courts shall compel defendants to refund these 
expenses like those specified at Point a, Clause 1, Article 204 of the Intellectual Property Law and the 
guidance in Item 1.6, Section 1, Part II of this Circular. IP/N/1/VNM/E/2 
Page 18  
 
   
2.4. If goods suspected of infringing upon intellectua l property rights, raw materials, materials or 
means of production or trading of these goods are on board sea-going ships or other means of transport, provisional urgent measures shall be applied to these goods but not to the means of 
transport. These goods and raw materials, materials or  means of production or trading thereof shall be 
unloaded and carried to places of preservation. 
 3. Regarding security measures (Article 208 of the Intellectual Property Law)  3.1. Depending on their requests for application of provisional urgent measures, requesters shall 
supply to courts evidence specified in Clause 2,  Article 203 of the Intellectual Property Law and 
Clause 1, Article 117 of the Civil Procedure Code to  prove the necessity to apply those provisional 
urgent measures.  3.2. Provision of security 
Persons requesting courts to appl y provisional urgent measures, regardless of whether these measures 
are specified in the Intellectual Property Law or the Civil Procedure Code, shall provide 
corresponding security. Courts shall order these persons to provide the following security. 
 a/ Security for the requested application of provisi onal urgent measures specified in Clause 1, Article 
207 of the Intellectual Property Law. 
 
A requester of application of a provisional urgent measure shall deposit a security in one of the forms 
specified in Clause 2, Article 208 of the Inte llectual Property Law, specifically as follows: 
 a.1/ A sum of money equal to 20% of the value of the goods subject to the application of provisional 
urgent measures. 
 The court shall ask the requester of application of a provisional urgent measure to clearly state the quantity and type of goods subject to the provisiona l urgent measure, the estimated value of such 
goods for determining the value of goods subject to the provisional urgent measure which serves as a basis for fixing the security sum of money. 
 
The value of goods subject to the provisional urge nt measure is determined at the time the 
infringement of intellectual property rights is co mmitted and on the bases arranged in the priority 
order specified in Clause 2, Article 28 of Decree No. 105/2006/ND-CP.  
If it is impossible to determine the value of goods su bject to the provisional urgent measures (after all 
necessary methods such as value estim ation, price appraisal and valuation are applied), the court shall 
decide on the security sum of money of at least VND 20 million to be deposited. However, attention 
should be paid to the fact that Point a, Clause 2,  Article 208 of the Intellectual Property Law specifies 
only the minimum level of the security sum of money for cases in which it is impossible to determine the value of goods subject to the provisional urgent  measures. Therefore, if the court, through 
estimation and temporary calculati on and study of circumstances of a case, believes that possible 
actual damage can exceed the specified minimum security of VND 20 million, it may rule on a security sum of money of more than VND 20 million to be paid by the requester of application of provisional urgent measures, depending on each case.  
a.2/ A guarantee deed issued by a bank or anot her credit institution (regardless of whether the 
guarantee deed issued by a domestic or foreign bank or credit instituti on valued at equal to 20% of the 
value of goods subject to provisional urgent measures or at least VND 20 million). Guarantee deeds may take the form of guarantee letters or guarant ee contracts established under the Vietnamese law, 
unless otherwise provided for by the Vietnamese law.  IP/N/1/VNM/E/2 
 Page 19 
 
 
   
b/ Provision of security in the case of applica tion of provisional urgent measures specified in 
Clause 2, Article 207 of the Intellectual Property Law.  Under Clause 2, Article 207 of the Intellectual Prope rty Law, rights holders may request courts to 
apply other provisional urgent measures specified in the Civil Procedure Code. Therefore, when 
deciding on the application of one of provisional urge nt measures specified in Article 102 of the Civil 
Procedure Code, courts shall base themselves on the provisions of Article 102 of the Civil Procedure 
Code and the guidance in Section 8 of Resolution No. 02/2005/NQ-HDTP of April 27, 2005, of the Judges’ Council of the Supreme People’s Cour t, guiding the implementation of a number of 
provisions of the Civil Procedure Code’s Chapter VIII on Provisional Urgent Measures, to identify 
specific cases in which security is required before  ordering requesters of application of provisional 
urgent measures to provide such security.  III. Regarding the right and burden of proof of in volved parties (Article 203 of the Intellectual 
Property Law) 
 1. Civil disputes over intellectual property rights co nstitute a type of civil disputes falling under the 
handling competence of people’s courts under the Ci vil Procedure Code. Plaintiffs and defendants, 
therefore, enjoy the right and bear the burden of proof under Article 79 of the Civil Procedure Code 
and Article 203 of the Intellectual Property Law. 
 
1.1. Depending on the special nature of intellect ual property rights and each specific kind of dispute 
and claim, plaintiffs enjoy the right and bear the burden of proof as follows: 
 a/ They shall prove that they are intellectual prope rty rights holders with one of evidence specified in 
Clause 2, Article 203 of the Intellectual Propert y Law and Article 24 of Decree No. 105/2006/ND-CP. 
 b/ For disputes arising from infringements of intellectual property rights, to prove that their intellectual property rights are infringed upon, they  shall supply evidence proving infringements of 
intellectual property rights or acts of unfair competition specified in Clause 3, Article 203 of the Intellectual Property Law and Article 25 of Decree No. 105/2006/ND-CP. 
 
c/ When determining whether or not infringements of intellectual property rights stated by plaintiffs in 
their petitions for institution of lawsuits exist, courts shall base themselves on the provisions of 
Articles 28, 35, 126, 127, 129 and 130 of the Inte llectual Property Law specifying infringements of 
copyright, related right and industrial property ri ghts. At the same time, they shall apply the 
provisions of Articles 5 thru 15 of Chapter II of Decree No. 105/2006/ND-CP to identify infringing 
elements of intellectual property rights. Because inte llectual property rights are special rights, in some 
cases using intellectual property rights is not regard ed as infringing upon inte llectual property rights. 
Courts shall therefore base themselves on the provis ions of Articles 25, 26, 32 and 33, Clauses 2 and 3 
of Article 125, Articles 133 and 134 of the Intell ectual Property Law to determine whether or not 
infringements exist, depending on specific intellectual property objects. 
 
1.2. Pursuant to Clause 4, Article 203 of the Intellectual Property Law, in lawsuits against 
infringements of the right to inventions which are production processes, defendants shall bear the 
burden of proof. Defendants shall prove that their products are produced by processes other than the 
protected ones in the cases specified at Points and b, Clause 4, Article 203 of the Intellectual Property 
Law. Courts shall order defendants to produce ev idence proving that they have not infringed upon 
intellectual property rights to plaintiffs’ inventions.  2. Plaintiffs may request courts to decide on orde ring parties that control evidence to produce such 
evidence under Clause 5, Article 203 of the Intelle ctual Property Law and Article 94 of the Civil IP/N/1/VNM/E/2 
Page 20  
 
  Procedure Code and the guidance in Section 8,  Part IV of Resolution No. 04/2005/NQ-HDTP of 
September 17, 2005, of the Judges Council of  the Supreme People’s Court, guiding the 
implementation of a number of provisions of th e Civil Procedure Code on burden of proof and 
evidence.  
3. Plaintiffs shall prove damage caused to th em; produce evidence proving their actual damage 
(various kinds of damage and losses in each kind  of damage), and specifically state bases for 
determination of compensations for damage unde r Article 205 of the Intellectual Property Law. 
 IV. Court rulings on application of civil remedies  (Article 202 of the Intellectual Property Law) 
 
Courts shall apply civil remedies specified in Artic le 202 of the Intellectual Property Law in handling 
civil cases on intellectual property rights.  Courts may apply on a case-by-case basis one or sever al or all civil remedies at the same time in the 
course of handling a civil case on intellectual property rights. 
 1. Compelling the termination of infringing acts  1.1. At the request of lawsuit initiators, courts  shall compel persons who commit infringements of 
intellectual property rights to immediately termin ate their infringements (for example, compelling 
infringers of copyright to terminate the reproduc tion of copyrighted works without authors’ or 
copyright holders’ authority; compelling persons  committing infringements of industrial property 
rights to marks to terminate the use of signs id entical to protected marks for goods or services 
identical to those on lists regist ered together with these marks). 
 
1.2. Courts may rule on compelling persons committi ng infringements of intellectual property rights 
to terminate their infringements in their judgments or  rulings on the application of provisional urgent 
measures under Article 206 and Clause 2, Article 207 of the Intellectua l Property Law, and Clause 12, 
Article 102 and Article 115 of  the Civil Procedure Code. 
 1.3. In their judgments or rulings, courts shall sp ecifically state infringed intellectual property rights 
and infringements of these rights. At the same time, courts shall clearly prescribe things that must be 
done or may not be done by persons  committing infringements of intellectual property rights in order 
to strictly enforce these judgments or rulings.  1.4. Under Clause 1, Article 123 of the Civil Proced ure Code, rulings or decisions on application of 
provisional urgent measures take effect immediately.  Therefore, if persons against whom provisional 
urgent measures of compelling the termination of  infringements of intellectual property rights are 
applied complain about rulings or decisions on application of these m easures, they shall still abide by 
these rulings or decisions within the time limit for lodging and settling complaints specified in 
Articles 124 and 125 of the Civil Procedure Code.  
If courts rule in their judgments on the terminati on of infringements of intellectual property rights and 
there are appeals or protests against these judgments, the provisions of Clause 1, Article 254 of the Civil Procedure Code, which stipulate “for appealed or protested parts of first-instance judgments or 
rulings the enforcement will be postponed, unless th e law requires the immediate enforcement,” will 
apply. 
 
Therefore, it is necessary to base on specific provisions of legal documents requiring the immediate enforcement of appealed or protested parts of first-instance judgments or rulings and the above 
provisions of the Civil Procedure Code to declare in  judgments or rulings that “rulings on compelling  IP/N/1/VNM/E/2 
 Page 21 
 
 
  the termination of infringements of intellectual pr operty rights must be immediately enforced despite 
of appeals or protests.”  2. Compelling public apology and correction   
2.1. Courts shall rule in their judgments or ru lings on compelling persons who commit infringements 
of intellectual property rights to make public apol ogies or corrections in order to restore the honor, 
dignity, prestige or reputation of holders of infringed intellectual property rights.   For example: An infringer of copyright has modi fied, mutilated or distorted a work, misrepresenting 
the author to the public in whatever form prejudicial to the author’s honor and reputation. 
 The compulsion of public apology and correction aims to protect the moral rights of authors specified in Clause 4, Article 19 of the Intellectual Property Law (protection of integrity of works) and restore the honor and reputation of authors. 
 
If involved parties can reach agreement on cont ents and modes of making public apologies and 
corrections as well as expenses for making these apologies and corrections, provided that their 
agreements are not contrary to law and social ethics, courts shall recognize their agreements. 
 2.2. If involved parties cannot reach agreement on contents and modes of making public apologies 
and corrections as well as expenses therefor, courts  shall base themselves on the nature, severity and 
consequences of infringements to rule on cont ents of and time volume for public apologies and 
corrections as well as expenses therefor. Public apol ogy and correction may be made directly at head 
offices of aggrieved parties or published on dailies of central agencies or newspapers of localities 
where aggrieved parties are headquart ered for three consecutive issues. 
 
3. Compelling the performance of civil obligations  Courts shall rule on compelling the performance of civil obligations by persons who commit acts 
breaching their obligations toward intellectual property rights holders [failing to perform or 
improperly perform obligations agreed upon in contr acts and bearing civil liability before intellectual 
property rights holders (obligees)]. 
 When this measure is applied, the relevant provisi ons of Sections 2 and 3, Chapter XVII, Part Three 
of the 2005 Civil Code must be based on.  
4. Compelling the payment of compensations for damage 
 4.1. Persons committing infringements of intellect ual property rights which cause material damage 
and spiritual damage to intellectual property rights holders shall pay compensations for such damage. 
The responsibility of persons committing infringeme nts of intellectual property rights to pay 
compensations for damage caused is determined on the bases specified in Clause 1, Article 604 of the 
Civil Code and the guidance in Section 1, Part I of Resolution No. 03/2006/NQ-HDTP 
of July 8, 2006, of the Judges’ Council of the S upreme People’s Court, guiding the application of a 
number of provisions of the 2005 Civil Code on pa yment of compensations for damage outside 
contracts.  
4.2. Since the Civil Code and the Intellectual Prope rty Law stipulate different principles for payment 
of compensations for damage, dete rmination of damage and modes of  payment of compensations for 
damage, the Intellectual Property Law stipulates in Clause 2, Article 5 that the provisions of 
Articles 204 and 205 of this Law, Articles 16, 17, 18, 19 and 20 of Decree No. 105/2006/ND-CP and IP/N/1/VNM/E/2 
Page 22  
 
  the guidance in Section I, Part A of this Joint Circular must be applied to settling claims for 
compensations for damage.  5. Compelling the destruction, distribution or  use for non-commercial purposes of intellectual 
property rights-infringing goods, and raw materials,  materials and means used largely for the 
production or trading thereof, provided that such de struction, distribution or use does not affect the 
exploitation of rights by intellectual property rights holders.  5.1. Courts shall consider and rule on compe lling the destruction, distribution or use for non-
commercial purposes of above goods, raw materials, materials and means, regardless of whether or 
not rights holders so request. 
 5.2. The compulsion of destruction, distribution or  use for non-commercial purposes must be based on 
the provisions of Clause 5, Article 202 of the In tellectual Property Law, and Articles 30 and 31 of 
Decree No. 105/2006/ND-CP. 
 
For example: Company X illegally affixed Company A’s soup seasoning (monosodium glutamate) mark “AJINOMOTO”, which sells well on the market, on its soup seasoning products for sale. 
Company A instituted a lawsuit against Company X, requesting a court to order Company X to 
terminate the act of illegally using the mark “AJI NOMOTO,” destroy unused product labels printed 
with the mark “AJINOMOTO” and handle the volume of soup seasoning products bearing the 
counterfeit mark. The court based itself on the provisi ons of Clause 5, Article 202 of the Intellectual 
Property Law and Article 30 of Decree No. 105/2006/ND-CP to rule on ordering Company A to destroy confiscated labels bearing the counterfe it mark and remove the word mark “AJINOMOTO” 
from soup seasoning products and distributing infringi ng soup seasoning products to an orphanage of 
district B for use for the humanitarian purpose. 
 
5.3. When compelling the destruction of inte llectual property rights-infringing goods, and raw 
materials, materials and means used  largely for the production or trading thereof, courts shall rule on 
the responsibility of persons committi ng infringements of intellectual property rights to bear expenses 
for the destruction.  
C. COORDINATION IN SETTLING DISPUTES OVER INTELLECTUAL PROPERTY RIGHTS 
 In the course of settling disputes over intellectual property rights, the People’s Court and People’s 
Procuracy and the Copyright Office of Vietnam (t he Ministry of Culture, Sports and Tourism), 
provincial/municipal Culture and In formation Services, the National Office of Intellectual Property 
(the Ministry of Science and Technology), prov incial/municipal Science and Technology Services 
that accept dispute cases, and the Vietnam Internet  Center (the Ministry of Information and 
Communication) shall closely coordinate within one another in performing the following tasks:  1. Should any professional matters arise in the domai n of intellectual property on which courts have 
requested in writing the exchange of expert opinions, the Copyright Office of Vietnam, 
provincial/municipal Culture and In formation Services, the National Office of Intellectual Property, 
provincial/municipal Science and Technology Services and the Vietnam Internet Center shall give 
their opinions on these matters.  2. Upon detecting infringements of intellectual property rights in the course of prosecution and 
adjudication of criminal cases, people’s procuracies  and people’s courts shall report them to the 
Copyright Office of Vietnam, provincial/municipa l Culture and Information Services, the National 
Office of Intellectual Property, provincial/muni cipal Science and Technology Services and the 
Vietnam Internet Center for the latter to monitor and make statistics on the protection of intellectual 
property rights at people’s courts within  the scope of their respective functions.  IP/N/1/VNM/E/2 
 Page 23 
 
 
   
3. Upon detecting infringements of intellectual pr operty rights, which have all elements constituting 
crimes as specified in the Penal Code, in the c ourse of handling infringements or settling disputes, 
functional agencies shall notify them and transf er relevant documents to competent people’s 
procuracies for consideration and decision on criminal handling. 
 
D. EFFECT OF THE CIRCULAR  1. This Circular takes effect 15 da ys after its publication in “CONG BAO.”
2 
This Circular replaces Joint Circular No. 01/2001/TANDTC-VKSNDTC-BVHTT 
of December 5, 2001, of the Supreme People’s Court, the Supreme People’s Procuracy and the 
Ministry of Information and Culture, guiding the a pplication of a number of provisions of the Civil 
Code in settling copyright-related disputes at people’s courts.  2. Cases previously handled in strict compliance with legal provisions, on which court judgments or 
rulings have taken legal effect, would not be protested according to cassation procedures under this 
Circular’s guidance, unless other grounds are available.  3. For the settlement of disputes over intellectual pr operty rights arising before January 1, 2006 (the 
effective date of the 2005 Civil Code), the provi sions of the 1995 Civil Code and legal documents 
guiding the application of the 1995 Civil Code’s  provisions on intellect ual property will apply. 
 
4. For the settlement of disputes over intellectua l property rights arising during the period from 
January 1, 2006, to June 30, 20 06 (the day preceding the effective date of the Intellectual Property 
Law), the provisions of the 2005 Civil Code and le gal documents guiding the application of the 2005 
Civil Code’s provisions on in tellectual property will apply. 
 
Any problems or new matters arising in the course of application of this Circular’s guidance should be 
reported in writing by courts at all levels to the Supreme People’s Court, the Supreme People’s 
Procuracy, the Ministry of Culture, Sports and Tour ism, the Ministry of Science and Technology or 
the Ministry of Justice for timely explanations or additional guidance.  
For the President of the Supreme People’s Court 
Vice President 
DANG QUANG PHUONG  
For the Chairman of the Supreme People’s Procuracy 
Vice Chairman KHUAT KIM NGA 
 
For the Minister of Culture, Sports and Tourism Vice Minister 
TRAN CHIEN THANG 
 For the Minister of Science and Technology 
Vice Minister 
NGUYEN QUAN 
 
For the Minister of Justice Vice Minister 
DINH TRUNG TUNG 
 
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2 CONG BAO Nos 259-260 (07-5-2008)