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Evidence usable in IP right disputes

Under the prevailing laws of Vietnam, the sources that may be used upon resolution of disputes over intellectual property rights comprise readable, audible and visible materials; exhibits, etc. Upon resolution of disputes over intellectual property rights, like other civil cases, the litigant who requests the Court to protect his/her lawful rights and interests shall present evidence to prove that such request is grounded and legal. The party who opposes the request of another person against himself/herself must prove that the opposition is grounded and must submit evidence to prove it (Article 91 of the Civil Procedure Code 2015).

According to Article 94 of the Civil Procedure Code 2015, there are 10 sources of evidence that the litigant can use to ensure his or her burden of proof. Apart from this general provision in the Civil Procedure Code, there is no legal document providing evidence during resolution of disputes over intellectual property rights.

In the types of evidence set forth in Article 94 of the Civil Procedure Code 2015, the following sources may be used upon resolution of disputes over intellectual property rights: readable, audible, visible documents, electronic data; exhibits; testimonies of involved parties; testimonies of witnesses; expertise conclusions; property valuation results. Depending on the specific type of dispute, the evidence used varies, and the litigant may present one or several types of evidence.

1. For disputes over copyright, readable, audible, visible documents and valuable electronic data, the evidence includes:

– Copyright certificate granted by the Copyright Office of Vietnam. A copyright registration certificate is evidence to prove that the person named in this Certificate is the owner/author of the work. In the event that the applicant does not follow the registration procedure at the Copyright Office of Vietnam, if he/she wants to prove that he/she is the owner/author, he/she must prove that he/she has created the work and such creativity has been shaped in a physical form;

– Literary, artistic and scientific works expressed in the form of articles, books, magazines, tapes, audio disks, tapes, video disks, etc. which have any content violating the protected work;

– Contracts for creation hire; labor contracts and work assignments in case that the individual or organization is the owner of the work;

– Legal wills, judgments, decisions of the Court on the division of inheritance in case of settling disputes arising from copyright inheritance;

– Contracts to use the work (in case of settlement of disputes over contracts to use the work);

– Copyright service contracts (in case of settlement of disputes over copyright service contracts);

– Hire contracts for performance of arts, contracts for organization of production of cultural and art programs; contracts for production and distribution of audio and video tapes; contracts in the field of radio and television (in case of settlement of disputes arising from these relations);

 – Invoices for payment of remuneration and royalties in case of dispute settlement involving the author’s right to enjoy these amounts;

 – A number of exhibits which can be used as evidence, such as goods with protected industrial property objects, goods with industrial property objects which are considered as infringements, and profits gained from violations.

 2. For disputes over industrial property rights, readable, audible and visible documents and valuable electronic data are evidence including:

– Industrial property object protection title is used to prove that the person named in the title is the author or owner of the industrial property object. Specifically, invention patents, utility solution patents, industrial design patents, certificate of trademark registration, certificate of registration of semi-conductor integrated circuit layout design, new plant variety protection certificate;

– Contracts for creation hire; labor contracts and assignment documents (in case of proving who are authors or owners of industrial property objects);

– Legal wills, judgments and decisions of the Court on the division of inheritance (in case of settlement of disputes over inheritance of industrial property rights);

– Contracts for transfer of ownership of industrial property objects, or license contracts (in case of settlement of disputes arising from these contracts);

– Contractsfor industrial property representation service (in case of settlement of disputes arising from these contracts);

– Applications and other documents proving that the applications have been filed;

– Other contracts and documents on the purchase, sale, custody, advertisement, export and import of goods/services with industrial property objects already protected in case of proving any violation of industrial property rights;

– Valid invoices and documents;

– List of well-known trademarks (in case of proving that trademarks or trade names are identical or similar to well-known trademarks);

– A number of exhibits which can be used as evidence, such as goods with protected industrial property objects, goods with industrial property objects which are considered as infringements, and profits gained from violations.

 

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