Dispute resolution in intellectual property in Vietnam. Intellectual property is an issue that in recent years is receiving much attention and growing. Therefore, it is inevitable that intellectual property disputes take place with increasing frequency. It can be said that this is a specific type of dispute arising from the intangible nature of intellectual property objects. In fact, the law on intellectual property in Vietnam is still new and the popularity is not high, knowledge about this field has not been widely updated for the people. Moreover, to participate in the resolution of intellectual property disputes, in addition to legal knowledge, businesses also need good skills to protect their interests and limit risks. So what is dispute resolution in intellectual property and methods to resolve disputes.
1. The concept of dispute resolution on intellectual property
First, we need to understand that intellectual property rights are the rights of individuals and organizations to intellectual property, which are assets produced from human minds and thinking activities. Intellectual property property is commonly found in the fields of industry, science, literature, and the arts. In the 4.0 era, along with the increasingly strong development of technology and the knowledge economy, the value of intellectual property is increasing in number and type. This is an intangible asset, so it is difficult to control in society, but on the other hand, it brings enormous spiritual and economic benefits to the author and owner, thereby leading to to disputes arising.
From the concept of intellectual property rights, we can deduce what is an intellectual property dispute: Disputes over intellectual property rights are understood as disputes over ownership and right to use objects. objects of intellectual property rights and conflicts of economic and spiritual interests from the use and exploitation of such objects.
There are many reasons for the arising of disputes over intellectual property:
– arising from the direct use of the subject matter of intellectual property rights
– arising from participating in commercial transactions related to the subject matter of intellectual property rights (disputes over moral rights, property rights, disputes in signing and performing license contracts) , transfer of rights, transfer of technology, ..
– use a trademark registration in Vietnam without permission.
2. Features of intellectual property disputes
Similar to disputes in other fields, disputes over intellectual property also have the following basic characteristics:
Disputes over intellectual property rights are diverse and complex: As mentioned above, intellectual property is often applied in specialized fields of art, science and technology in each field. Therefore, it is very difficult to accurately perceive and assess the nature and situation of the dispute, even for the parties to the dispute and the settler themselves. Since then, to resolve disputes requires to be resolved by experts, who are qualified in both the law and the subject area of the dispute.
Disputes over intellectual property rights are often multinational: Another factor that contributes to the complexity of IP disputes is multinational. Disputes can arise between subjects of different nationalities and are not limited in spatial extent. Therefore, when conducting dispute resolution, the parties should be aware of the method of dispute resolution that is effective for both and is widely recognized.
Disputes over intellectual property rights require high confidentiality: not only about disputes in particular, but most intellectual property transactions require confidentiality, especially for transactions on intellectual property rights. rights to inventions and trade secrets. In fact, many cases of disputes arise from disclosing and using information belonging to a business secret without the consent of the owner of that business secret.
Disputes over intellectual property rights are civil disputes (in a broad sense): These are disputes arising from private transactions, between individuals and organizations in the field of intellectual property. The settlement of these disputes is mainly to protect the rights and interests of individuals and organizations
3. Methods of resolving disputes over intellectual property
As with disputes in other fields, negotiation is one of the first methods of dispute resolution that subjects aim at based on the principles of freedom, self-agreement, and civil determination. It can be said that this is an “internal” method of resolution because the parties to the dispute will agree with each other to come to a final agreement on how to resolve the conflict without the intervention of the third party. father.
In particular, the negotiation method is a quite effective method because of its flexibility. When conducting negotiations, the parties will reach an agreement without being bound by legal regulations. According to Vietnamese law, negotiation is a method of dispute settlement which is recognized in Article 317 of the Commercial Law on the form of dispute settlement, in addition, there is no other regulation governing it.
However, it should be noted that the agreements reached by the agreement will be performed by the parties on a voluntary basis, and there will be no legal guarantee to do so.
Unlike negotiation, mediation is a method of dispute resolution involving a third party, which can be an individual or organization designated or accepted as an intermediary, the third party’s role is to assist assisting and persuading the parties to a dispute to find a solution to the conflict. Mediation method, although involving a third party, is still similar to negotiation, the agreement of the parties is always respected and voluntary.
Mediation can be done in court and out of court. Mediation in proceedings is performed as a step in a Court or arbitration proceeding. In the proceedings, conciliation is considered as an encouraged principle when the parties have a dispute. Article 58 of the Law on Commercial Arbitration stipulates: “At the request of the parties, the Arbitral Tribunal shall conduct conciliation to The parties agree to settle the dispute. When the parties reach an agreement on the settlement of the dispute, the arbitration council shall make a record of successful conciliation signed by the parties and certified by the arbitrators. The arbitral tribunal shall issue a decision to recognize the agreement of the parties. This decision is final and has the same validity as an arbitral award.” In court proceedings, conciliation is the first step and also a binding procedure. If the parties agree on a settlement plan, the agreement will be recognized by the court and effective immediately. not be appealed or protested against according to appellate procedures. According to Article 10 of the Civil Law: “The Courts have the responsibility to conduct mediation and create favorable conditions for the involved parties to reach agreement with one another on the resolution of civil cases under the provisions of this Code.”
3.3. Dispute settlement procedures by commercial arbitration
Dispute settlement by commercial arbitration is also a method of dispute settlement voluntarily chosen by the parties, whereby the dispute settlement agreement will be resolved through an arbitral tribunal set up to resolve and judge the dispute. The award of the arbitral tribunal is binding on the parties
Commercial arbitration in Vietnam is organized in the form of arbitration centers. An arbitration center is a type of non-governmental organization, a socio-professional organization, operating under the law and arbitration regulations. In the process of settling disputes, the arbitrator must not use state power like a court. However, the arbitral award is binding on the parties.
The condition for dispute settlement by arbitration is that the parties must have an arbitration agreement. Where the disputing parties have reached an arbitration agreement and one party initiates a lawsuit at court, the court must refuse to accept it, unless the arbitration agreement is invalid or the arbitration agreement cannot be performed.
3.4 procedures for resolving disputes by court
Dispute settlement by court is a form of dispute settlement through the operation of the court – an anti-State arbitration agency, in the name of the State’s power to issue a judgment to compel the parties to comply. Unlike negotiation, conciliation and arbitration, dispute settlement can only be done if there is a consensus of will and voluntary agreement of the parties. But for the method of dispute resolution by court, the agreement of the parties is not a mandatory condition for the dispute to be brought to the court for resolution.
The court may accept to settle the dispute when it receives a request from one of the parties. This is an advantage of the court compared to other dispute resolution methods, when the parties cannot reach the necessary agreement in choosing a dispute resolution method.
The order and procedures for settling civil, business and commercial disputes at court are prescribed in the 2015 Code Of Civil Procedure, with the nature of civil, business and commercial disputes. In the field of intellectual property rights, disputes over intellectual property rights, when resolved in court, also follow the general provisions of the civil procedure law, in addition, there are a number of separate provisions for the settlement of intellectual property rights. type. Normally, the court will accept to settle civil, business, and commercial disputes, including intellectual property disputes, if such dispute falls under the court’s jurisdiction and between the parties. arbitration agreement or there is an arbitration agreement but such agreement is void or unenforceable.
The above are methods of dispute resolution in the field of intellectual property. Accordingly, when a dispute occurs, the parties can proceed to resolve it through negotiation, conciliation, commercial arbitration or court.