Tuesday, December 12, 2017

IPR in Vietnam, handle infringement, IPR protection in Vietnam

Appeal/Complaint against a refusal of protection of IP applications in Vietnam

1. Who is entitled to file an appeal (or a complaint) against a refusal against a Trademark Application in Vietnam?

(i)    The applicant of industrial property subjects matters in Vietnam;

(ii)   Organizations, individuals who have rights and interest directly concerning the Decision or Notice on settlement of applications for IP subject matters => Article 14.1 of Decree No. 103/2006/ND-CP which details and guide the implementation of a number of Articles of the IP Law of Vietnam.

2. Subjects of appeal concerning IPR in Vietnam

All Decisions, Notices of the National Office of Intellectual Property of Vietnam concerning the handling of applications for registration of IP subject matters in Vietnam

3. IPR related Appeal Proceedings in Vietnam

When having grounds to believe that the administrative decisions, administrative acts are not lawful, directly violating the legitimate rights and interests, a person may lodge a first-time appeal (complaint) to the person who issues the Decision or (2) initiate a lawsuit at a Court in conformity with Vietnam Administrative Procedure Law (Administrative Decision => Initial complaint (appeal) or commence a lawsuit before the Court).

In case the complainant/appellant disagrees with the first-time complaint/appeal settlement Decision or the complaint/appeal remains unsettled although past the prescribed time limit, he/she may make a second-time complaint with the direct superior of the person competent to settle the first-time complaint/appeal or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

To sum up, the IP applicant may file 02 appeals, one appeal against the refusal of the National office of Intellectual Property of Vietnam (NOIP). If the IP applicant is not satisfied with the NOIP's Decision on settlement of the Appeal, he can file another appeal to the Ministry of Science & Technology (or initial a lawsuit against the Decision of the NOIP).

If the time-limit for settling the 2nd complaint/appeal, or the appellant/complaint does not agree with the Decision on settlement of the complaint/appeal of Minister of Science & Technology, the appellant/complainant may commence a lawsuit at court.

4. When the appeal/complaint should be lodged? What is the deadline to file an appeal/complaint against a refusal of a trademark registration in Vietnam?

  • 1st appeal/complaint: The 1st appeal/complaint must be lodged within 90 days upon receipt of the Decision/Notice;
  • 2nd appeal/complaint: The 2nd appeal/complaint must be lodged within 30 days upon receipt of the Decision/Notice.

5. When the appeal/complaint must be statutorily settled under the laws of Vietnam?

  • For the first appeal/complaint: When the competent authority issues a Notice on accepting jurisdiction over the appeal, statutorily, the appeal/complaint must be settled within 30 days therefrom.
Under Article 28 of Law on Complaint No. 02/2011/QH13:

Article 28. Time limit for settling first-time complaints

The time limit for settling a first-time complaint does not exceed 30 days after the complaint is accepted. For a complicated case, this time limit may be prolonged but must not exceed 45 days after the complaint is accepted.

In deep-lying or remote areas with difficult travel conditions, the time limit for settling a complaint is 45 days after the complaint is accepted. For a complicated case, this time limit may be prolonged but must not exceed 60 days after the complaint is accepted.

  • For the second appeal/complaint: When the competent authority issues a Notice on accepting jurisdiction over the appeal, statutorily, the appeal/complaint must be settled within 45 days therefrom.

Under Article 37 of Law on Complaint No. 02/2011/QH13:

Article 37. Time limit for settling second-time complaints

The time limit for settling a second-time complaint does not exceed 45 days after the complaint is accepted. For a complicated case, this time limit may be prolonged but must not exceed 60 days after the complaint is accepted.

In deep-lying or remote areas with difficult travel conditions, the time limit for settling a complaint is 60 days after the complaint is accepted. For a complicated case, this time limit may be prolonged but must not exceed 70 days after the complaint is accepted.

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