THEMATIC COMPETITION IN RELATION TO INTELLECTUAL PROPERTY RIGHTS

Transcription

1 THEMATIC COMPETITION IN RELATION TO INTELLECTUAL PROPERTY RIGHTS INTRODUCTION Author: Master Nguyen Nhu Quynh Consider the legal and practical issues surrounding "Competition-related intellectual property" is really necessary, it is important in resolving competition cases related to intellectual property rights, in order to protect fair competition in the market, and better protection of intellectual property rights. Because: First, the acts of unfair competition in general and acts of unfair competition relating to intellectual property rights arising in particular more and more, this kind of competition the competent authorities (in which the court) before the required resolution; Second, competition related to intellectual property rights is a new issue in our country, both in law and practice address; Third, competition cases related to intellectual property rights is complicated by two related areas: competition and intellectual property. This paper focus on the following basic issues: Competition-related intellectual property rights; Identify acts of unfair competition relating to intellectual property rights; The provisions of Vietnamese law on resolution of competition cases related to intellectual property rights; problems in the process of solving this case and a number of specific solutions to the problems raised ; The note to the court in the process of solving competition cases related to intellectual property rights. 1. Overview of competition relating to intellectual property rights Competition related to intellectual property rights first of all the competition, besides also has unique characteristics associated with intellectual property. That is, competition related to intellectual property rights, competition related to the objects of intellectual property, to the transfer of intellectual property rights. Acts of unfair competition relating to intellectual property rights violations both competition law and intellectual property law. For example: Company X pharmaceutical medicines for production functions, the company has a dominant market position and hold the patent medicines for people. With these advantages, the company has set the price too high and damaging drugs to consumers. With the aim of encouraging creativity, intellectual property law gives the holder the exclusive intellectual property rights. Specifically, owners of industrial property objects have the right to: use, allow others to use industrial property objects; prohibit others from using industrial property objects; disposition of property objects industry (Clause 1, Article 123 of the 2005 intellectual Property Law). When the owner of intellectual property objects exploiting its monopoly can lead to unfair competition. Moreover, derived from the commercial value of intellectual property objects, business owners can think of the use of industrial property objects of competitors (this is considered as one of the first results from your competitors) to make a profit and cause 1

2 damage to competitors. Therefore, the emergence of competition cases related to intellectual property rights is inevitable. When the economy grows so does this kind of work. This fact requires the close cooperation between competition law and intellectual property law, the balance between the protection of intellectual property rights and policies to ensure fair competition. The goal of competition law is to protect competition on the market, promote the prosperity of consumers and effective distribution of resources. Intellectual property laws to give exclusive rights to the subject property, as this can exploit its monopoly leads to conflict with competition law. However, the two fields of law share the common goal is to encourage innovation and protect fair competition in the market. Therefore, competition law and intellectual property law with intrinsic relationship, inextricably linked and influence each other directly. Countries around the world have recognized the relationship between competition law and intellectual property law, therefore, has a policy and legal settlement of competition cases relating to ownership wisdom. - International law Competition issues related to intellectual property rights are specified in the following international legal instruments: Paris Convention for the Protection of Industrial Property in "Any act contrary to honest practices in industrial and commercial areas are regarded as acts of unfair competition" (Paragraph 2 of Article 10bis). Paris Convention also stipulates the acts of unfair competition are prohibited, including: behavior likely to cause confusion about the place of manufacture of goods of competitors, discrediting competitors, trick lying to the public (paragraph 3 of Article 10bis). Agreement on the commercial aspects of intellectual property rights-trips 1994 (Article 8.2 and Article 40) - European Community Law Article 81 and Article 82 of the General Treaty of the European Community (EC Treaty) European Commission Regulation No. 2349/84/EEC on the application of Article 81 (3) of the Treaty on the European Union for some kind of agreement to transfer the right to use the invention European Commission Regulation No. 556/89/EEC on the application of Article 81 (3) of the Treaty on the European Union for some kind of know-how transfer agreement Regulation of the European Commission 240/96/EEC on the application of Article 81 (1) of the Treaty on the European Union for a number of agreements on technology transfer European Commission Guidelines on the application of Article 81 of the General Treaty of the European Community for the technology transfer agreement in American Law Sherman Act (sections 1 and 2) Antitrust Guidelines for the agreement on the transfer of intellectual property rights in

3 - Vietnam Laws: In Vietnam, competition related to intellectual property rights was first defined in Decree 54/2000/ND-CP on the protection of industrial property rights to business secrets, geographical indications, trade name and the protection against unfair competition related to industrial property. Currently, this issue is governed by many different documents. namely: Competition Law 2004 Intellectual Property Law Law on Technology Transfer Decree 116/2005/ND-CP dated 15/09/2005 of the Government detailing the implementation of a number of articles of the Law on Competition Decree 106/2006/ND-CP dated 22/9/2006 Regulations on sanctioning administrative Violations in industrial property In our country, in general, competition related to intellectual property rights is a new issue, the law is incomplete, unclear and experience of the competent authorities solve this kind of work alsolack. 2. Identify acts of unfair competition relating to intellectual property rights Identify competition cases related to intellectual property rights are important, help the competent authorities to apply full and accurate legal documents to address in order to protect the legitimate rights and interests of owners of intellectual property objects, as well as business entities and consumers. Objects of intellectual property is a factor competitive advantage in trade so competitors can think of the harm of objects of industrial property by performing acts of unfair competitionstrong illicit profits in the business. In addition, owners of intellectual property rights is granted monopoly, therefore, they are easy to abuse the right to interfere with commercial activities, harm to consumers (for example: restriction agreement at the competition, abuse of dominant market position, abuse of monopoly position). These are two types of violations of competition law and intellectual property law in competition cases related to intellectual property rights: acts of unfair competition and acts restricting competition. Acts of unfair competition Acts of unfair competition relating to intellectual property rights is an act has the following characteristics: Due to the business conducted in the course of business; Contrary to the usual standards of business ethics; In relation to the objects of intellectual property or transfer of intellectual property rights (mainly related to intellectual property objects): Damage or may cause damage to the interests of the State, other businesses or consumers. Under the provisions of the Competition Law, 2004 (hereinafter referred to as the Competition Law) and the Law on Intellectual Property, 2005 (hereinafter referred to as the Law on Intellectual Property), acts of unfair competition relating to rightsindustrial property includes: (i) acts only misleading; (ii) infringement of trade secrets; (iii) the act of using a protected trademark in a country is a member of the treatiesinternational regulations prohibit the representative or agent of the trademark owner to use the mark; (iv) registration act, seized, unlawful to use the domain name. In particular, behavioral competition law provisions (i) and (ii) are acts of unfair competition; Intellectual Property 3

4 Law behavior (i), (iii), (iv) acts of unfair competition, and (ii) the provisions of intellectual Property Law is an act of infringement of rights to business secrets. Only misleading behavior Competition law provisions on acts only misleading in Articles 39 and 40, and Intellectual Property Law provides behavioral commercial use only cause confusion in Article 130. Under the provisions of the Competition Law, enterprises are prohibited: Use the instructions contained misleading information about trade names, business slogans, logos, packaging, geographical indications and other factors prescribed by the government to falsify the customer for the goods and services for competitive purposes (Paragraph 1 of Article 40); Sales of goods and services using geographical indications of confusion (paragraph 2 of Article 40). Under the provisions of the Law on Intellectual Property, behavioral commercial use only confusion is one of the acts of unfair competition.specifically: Using commercial indications confusing for the business owner, business, commercial source of welding goods and services (Point a, Clause 1, Article 130); Commercial use only cause confusion as to the origin, production methods, features, quality, quantity or other characteristics of goods or services; conditions for the supply of goods and services (point b, paragraph 1 of Article 130). Commercial Instructions: Signs, information to guide trade in goods and services, including trademarks, trade names, logos, business slogans, geographical indications, designs includepackaging of goods, labels (paragraph 2 of Article 130 of the Law on intellectual Property) Commercial use only acts include (paragraph 3 of Article 130 of the Law on Intellectual Property): Mounting instructions trade up goods or packaging of goods, facilities and services, business transaction documents, media advertising; sale, advertising for sale, storing for sale, import commercial goods affixed only. Thus, the competition law provisions on "acts of misleading", Intellectual Property Law provides for "acts of commercial use only cause confusion. The provisions of Article 40 of the Law on competition shows: essentially "guide" is mentioned in Article 39 and Article 40 of the Law on Competition "commercial only". Intellectual property provisions in the Law on the behavior commercial use only confuse far more specific than the specified behavior using only misleading in Competition Law. Examples of commercial use only behavior confusing: use the name "China Resources": Enterprise Central Highlands business operations with coffee powder processing industries (business registration, 1996). Enterprise is widely used signs: "Trung Nguyen - give you new creative inspiration" in the business. Signs are used in the coffee shop in the location of Trung Nguyen's coffee supply. Signs of Enterprise Central Highlands has the characteristics as follows (according to the layout of the sign from top to bottom): The words "top coffee Buon Me Thuot" yellow; The words "Trung Nguyen" in the middle of white color; The words "bring new creative inspiration" is reflected in a meandering line (red letters on a yellow background) 4

5 The right angle shape with the white arrow pointing up; The angle on the left is the coffee cup on the coffee beans background. ME Greek coffee base business since 1999 with the same business coffee processing with Trung Nguyen enterprises and operating in Dak Lak province. ME Hy basis using signs "Mother Greece - For you new feeling creative" in a number of business locations and facilities in the location and placement of signboards of Trung Nguyen enterprise. Signs of Mexico basis Hy She has the following main characteristics: The words "leading coffee Buon Me Thuot" in yellow at the top; The words "mother Greece" in the middle of white color; The word "flavor to your new fresh feeling" expressed in a meandering line (red letters on a yellow background); The right angle shape with the white arrow pointing up; Left corner is the coffee cup on the coffee beans background Industrial Property Department (now the Department of Intellectual Property) is of the opinion as follows: First, the sign on the completed fully functional guide consumers about the actual business owner and is an indication of the commercial entity. At the same time the two signs on the same presentation style from the color shown to position the block layout. Shapes and words on signs along with a style show, two signs with the same even own an iconic sign (arrow). Therefore, the similarity between the two is clear sea. Second, to confirm the use of signs should be based on the Greek mother is an act of unfair competition as provided for in Article 24.1 of Decree 54/2000/ND-CP, Trung Nguyen enterprises need to prove that the firm has built up a prestigious reputation in the business by the use of signs. Specifically: Enterprise Trung Nguyen has created signs of itself without copying from other entities; For come before Me Hy base She uses sign their, Trung Nguyen enterprise: use signs to cater to your business; effort to build its reputation through through the use of signs. ME Hy facilities used signs in areas where Trung Nguyen Enterprise use signs Infringement of business secrets Infringement of trade secrets are defined in Article 39 and Article 41 of the Competition Law, which, now banned perform the following behavior: Access to crawl under the trade secret by against the security measures of the legal ownership of trade secrets; Disclosing, using confidential information belonging to business without the permission of the owner of the trade secret; Violating confidentiality agreements or deception, abuse the trust of the people who are supposed to approach security, information gathering and disclosing business secrets secret owner's business; Access to crawl under the trade secrets of others when the procedures under the provisions of law relating to business, circulation procedures or products against security measures of state agencies, or use such information for the purpose of business, for business-related license or distribution of products. 5

6 Infringement of trade secrets is not listed in the act of unfair competition provisions in Article 130 of the Law on Intellectual Property. However, the provisions of Article 41 of the infringement of trade secrets in competition law similar to (or even like) provisions on infringement of rights to business secrets in Article 127 of the Law intellectual property. In addition to the four acts specified in the Competition Law, Intellectual Property Law provides two additional behavior in e, f, Clause 1, Article 127. From the above provisions of the Competition Law and Intellectual Property Law, some of the following issues need to be resolved: First, according to the provisions of Intellectual Property Law, infringement of trade secrets must be acts of unfair competition? Second, when there is infringement of business secrets and the provisions of Article 41 of the Law on competition and the points a, b, c, d, Clause 1, Article 127 shall constitute an infringement of the right to confidentiality pure business and legal treatment of intellectual property or acts of unfair competition relating to intellectual property rights and is handled in accordance with competition law? Two problems show: the promulgation of legal documents, we do not address the relationship between competition law and intellectual property law for provisions on unfair competition relating to the rightsintellectual property. This makes it difficult for the resolution of competition cases related to intellectual property rights of the competent State agencies, including the People's Court (about workarounds, see Section III) Acts of trademark use are protected in a Member State is a member of international treaties have banned the representative or agent of the owner of the trademark owner to use the trademark Behavior "Use mark are protected in a country is a member of treaties have banned the representative or agent of the owner of the trademark owner to use the mark which the Socialist Republic of VietnamNam is also a member, if the user or representative or agent of the owner of the brand and use it without the consent of the trademark owner and there is no good reason "is outacts of unfair competition relating to intellectual property rights as prescribed at point c, Clause 1, Article 130 of the Law on intellectual Property. Thus, Point c, Clause 1, Article 130 of the Intellectual Property Law shall apply when fully satisfy the following conditions: Brand name used is protected under international treaties to which Vietnam is a member; treaties have banned the representative or agent of the trademark owner to use the mark; The use of trademarks as the representative or agent of the owner of the mark; The use without the consent of the trademark owner with no good reason Registration act, occupation, use illegal domain name Prescribed at Point d, Clause 1, Article 130 of the Law on Intellectual Property, the act of "stealing" domain is considered one of the acts of unfair competition. Specifically, it is the act of registration, occupying the right to use or use of the domain name is identical or confusingly similar to a trademark, trade name protection of others, or their geographical indication may not used for the purpose seized the domain name, 6

7 advantage or cause damage to the prestige and reputation of the trademarks, trade names, geographical indications, respectively. It should be noted that: the domain is not an object of intellectual property. However, the fact that a lot of business registration and use of domain names identical to the trade name, trademark protection to which they are the owners, or coincide with the geographical indication that they have the option of using measures. In these cases, subjects who act to use the domain name as prescribed at Point d, Clause 1, Article 130 of the Intellectual Property Law shall be deemed to commit acts of unfair competition relating to the ownership intellectual Aimed against unfair competition relating to the registration of the domain name is identical with a protected trademark, dated 26/05/2003 the Minister of Post and Telecommunications issued Decision No. 92/2003 /Decision-BBCVT regulation on management and use of Internet resources Anticompetitive behavior Anticompetitive behavior related to intellectual property rights is an act has the following characteristics: Do business conduct; Reduces or misleading, hinder competition on the market; Related objects of intellectual property, licensing of intellectual property (primarily related to the transfer of intellectual property rights). If such acts of unfair competition relating to intellectual property rights closely related to the objects of intellectual property, the anticompetitive behaviors closely related to the transfer of intellectual property rights especially use right transfer contract industrial property objects (often referred to as licensing contracts). In other words, when the subject of intellectual property rights made the transfer of intellectual property rights entirely likely cause anticompetitive consequences; in three forms: agreements restricting competition; abuse of market dominant position, abuse of monopoly position; economic and concentrated. If intellectual property law provides for acts of unfair competition relating to intellectual property rights in Article 130 of this Law does not have any specific provisions on anticompetitive behavior related tointellectual property rights. In principle, the agreement restricting competition provisions of Article 8, Article 9 of the Law on Competition, the abuse of dominant market position, abuse of monopoly position from Article 11 to Article 14 of the Law competition, the behavior of economic concentration prescribed in Articles 16 and 19 of the Law on competition that involves intellectual property rights may be considered anticompetitive behavior related to intellectual property rights. Under the provisions of competition law and intellectual property law, the following acts certainly be regarded as anticompetitive behavior related to intellectual property rights: Agreement to limit the development of techniques and technologies when the parties to the agreement have a combined market share on the relevant market of 30% or more (Clause 4, Article 8, paragraph 2 of Article 9 of the Law on Competition). 7

8 enterprises, enterprise groups have a dominant market position to commit acts hinder the development of techniques and technologies causing damage to customers (paragraph 3 of Article 13 of the Law on Competition). Decree No. 116/2005/ND-CP dated 15/09/2005 of the Government detailing the implementation of a number of articles of the Law on Competition, the above behavior is explained as the purchase of the invention, the solutionutility, industrial designs to be destroyed or not used (see paragraph 1 of Article 17 and point a, Clause 3, Article 28). Record the competition restriction provisions in the contract using industrial property objects. According to the provisions of Clause 2, Article 144 of the Law on Intellectual Property, contract use industrial property objects not have reasonable terms restrict any right of the licensee, particularly the terms of from the right of the licensor, including: (i) Prohibiting the right to improve industrial property objects, except for the mark; forcing the licensee to transfer for free to the licensor of the objects of industrial property improvements made by the licenseeout or registered industrial property rights, industrial property rights for such improvements; (ii) Directly or indirectly restrict the licensee from exporting goods and services produced or provided by contract to use industrial property objects to the territories is not where the parties to the rights held by the respective industrial property rights or exclusive imported goods; (iii) To force the licensee to purchase all or a certain percentage of the raw materials, components or equipment of a transfer or rights of a third party designated by the licensor but not for the purpose of ensuring the quality of of their goods and services produced by the licensee or provider. According to the provisions of Clause 2, Article 144 of the Law on Intellectual Property, the above clause in the contract to use industrial property objects implicitly disabled. Furthermore, Article 20 (paragraph 2, point e) of the Law also specifies technology transfer: Party of technology "not agree on the terms of restricting competition are prohibited by the provisions of the Competition Law;". So far, very few cases of restricting competition related to intellectual property rights are brought to competent state agencies. In particular, the case was taken to the competent State agencies (eg competitive Administration) are in the process of solving that no specific decisions. 3.Settlement of competition cases related to intellectual property rights 3.1. Overview Competition cases related to intellectual property rights are understood as cases showing signs of violation of competition law and intellectual property law state agencies have authority to investigate and handle in accordance with the law. State law admits many remedies competition cases related to intellectual property rights. Measures to resolve the competition is understood as the manner of enterprises, intellectual property rights holders, other stakeholders use;, or used by the State to protect the rights and interests of their 8

9 If based on the applicable measures, can be divided into measures to address competition cases related to intellectual property rights into two categories: selfprotection measures and safeguards by the State agencycompetent. The competent State agencies use a variety of measures to address competition cases related to intellectual property rights. Specifically include: administrative measures and criminal measures, civil remedies. The provisions of various measures comes from the richness and diversity of acts of unfair competition relating to intellectual property rights. Moreover, the provisions of many measures in order to efficiently handle acts of unfair competition relating to intellectual property rights; protect the legitimate rights and interests of the business, intellectual property rights holders and the relevant right holder. Measures to resolve the competition related to intellectual property rights provisions in various laws such as: writing competition law, intellectual property legal documents, legal documentscivil, administrative laws, criminal laws Measures to resolve the competition related to intellectual property rights Measures to protect Self-protection measures derived from the principles of respect, to protect the civil rights of the Vietnamese law, recognized in Article 9 of the Civil Code in 2005 and are specified in Clause 3, Article 198 of the Property Lawwisdom. "Organizations and individuals affected or potentially affected by acts of unfair competition may request competent state agencies to apply civil remedies (...) and measures administrative measures in accordance with the law on competition. "Here, the requirements of organizations and individuals with damage to the competent state agencies apply different protection measures is understood as the right to self-defense has been listed at Points c and d, Clause 1 Article 198 of the Law on intellectual Property. In fact, when the acts of unfair competition relating to intellectual property rights arise, the first protection measures are applied to protect themselves. First, measures to respect the right to self-determination of the subject. Furthermore, although there is no intervention by the competent State agencies but in some extent, these measures also quick help prevent, stop acts of unfair competition Administrative measures Handling of administrative violations, for acts of unfair competition, anticompetitive behavior related to intellectual property rights is the state agency authorized to apply certain measures to handle acts of unfair competition, anticompetitive behavior related to intellectual property rights but not to the level of criminal prosecution. Issues apply administrative measures to deal with competition cases related to intellectual property rights are specified in the following legislation: Competition Law: "The competent authority to sanction violations of unfair competition provisions relating to intellectual property rights in accordance with the law on handling of administrative violations"(clause 3, Article 119). Intellectual Property Law: "Organizations and individuals that commit acts of unfair competition on intellectual property shall be subject to administrative sanctions in accordance with the law of competition" (Clause 3, Article 211 ). 9

10 120/2005/NĐ-CP Decree dated 30/9/2005 of the Government regulations on handling of violations in the field of competition law: "The authority to sanction violations of regulations on competition health-related intellectual property rights of other organs is determined according to the provisions of the law on handling of administrative violations "(Article 45). Decree 106/2006/ND-CP dated 22/9/2006 of the Government on sanctioning of administrative violations in industrial property: "Individuals, organizations committing acts of unfair competition and acts trade secret violations of industrial property shall be sanctioned in accordance with the sanctioning of administrative violations in the field of competition "(Article 16). From the above provisions shows that there are some note the following when applying administrative measures to deal with competition cases related to intellectual property rights: Principles, form and level of administrative sanctions for competition cases related to intellectual property rights applicable under the provisions of the Competition Law and Decree 120/2005/NĐ-CP. Competence and administrative procedures for the competition related to industrial property rights shall comply with the provisions of Decree No. 106/2006/ND-CP. Decree 106/2006/ND-CP no specific regulations on competence and procedure for administrative handling of competition cases related to intellectual property rights, therefore, in principle, the authority and the procedures for this kind of work is applied as for the infringement of industrial property rights in general. For the competition common administrative authority under the Competition Management Department (Ministry of Industry and Trade) and the Competition Council; longer competent to sanction administrative violations, for acts of infringement industrial property belonging to the following agencies: inspection of science and technology, market management, customs, police and the people's Committee (Article 17 of Decree No. 106/2006/ND-CP). Sanctioning of administrative violations, for acts of unfair competition relating to intellectual property rights: Acts only misleading subject to a fine of between five million and twenty million, besides, as the case may be, business violations may also be subject to one or a number of additional sanctions and remedies such as: confiscation of material evidences and means used to commit the violation; forced public correction (Article 30 Decree 120/2005/NĐ- CP). Infringement of trade secrets also be subject to fines similar behavior only misleading, besides, "enterprise violation can be confiscated material evidences and means used to make violations including confiscation of all profits gained from the implementation of violations "(Article 31 Decree 120/2005/NĐ-CP). Sanctioning of administrative violations for anticompetitive behavior related to intellectual property rights: Acts agreement limited development technology fines with a maximum of 10% of total revenue in the financial year preceding the year of implementation of the violation of each enterprise is that the parties agree combined market share on the relevant market of 30% or more (Article 13 Decree 120/2005/NĐ-CP). In addition, businesses violations may also be subject to one or a number of remedial measures, such as: confiscation of material evidences and means used to commit the violation, including the confiscation of 10

11 all the profits gained from the implementation of the violation; forced to remove the illegal clause out of the contract or business transaction (paragraph 3 Article 10 Decree 120/2005/NĐ-CP). Acts of obstructing the development of techniques and technologies causing damage to customers fines at the highest level is 10% of total revenue in the financial year preceding the year of implementation of the violations of the business or business group now dominant market position. In addition, businesses violations may be subject to one or more additional sanctions and remedial measures (Article 20 Decree 120/2005/NĐ- CP). For example: forced use or sell the invention, utility solutions, industrial designs have been purchased but not used; forced removal measures to prevent, inhibit other businesses to enter the market or development business; forced to restore the conditions of technical development, the technology that has hindered business Criminal measures When acts of unfair competition, anticompetitive behavior related to intellectual property rights of the subject acts dangerous to society of crimes that can be prosecuted for criminal liability. The application of criminal measures under the jurisdiction of the Court. Apply criminal measures is "a sharp instrument, useful for preventing and combating crime... to protect the rights and legitimate interests of citizens and organizations...". On the basis of this orientation, the Penal Code in 1985, then to the Criminal Code in 1999 are specified offenses and corresponding penalties to protect intellectual property rights. To protect the copyright of the Criminal Code of 1999 provided for two counts: copyright infringement (Article 131) and charged with violating the regulations on publishing and distribution of books, newspapers, audio discs, tapes audio, video discs, video tapes or other publications (Article 271). To protect industrial property rights, the Criminal Code of 1999 provided for the offense: 1. Manufacture, trafficking in counterfeit goods (Article 156); Poor production, trade in counterfeit goods is food, food, medicines, preventive medicines (Article 157); manufacture, trafficking in counterfeit goods used for animal feed, fertilizers, veterinary drugs, plant protection drugs, plant and animal varieties (Article 158); Poor consumer fraud (Article 162); infringing regulations on the degree of protection industrial property rights (Article 170); infringement upon industrial property rights (Article 171). However, the Penal Code of 1999 does not have any have any provisions on unfair competition acts, restricting competition related to the intellectual property rights of a crime. Clause 1, Article 3 Decree 120/2005/NĐ-CP also specify this Decree shall not apply to the signs of criminal behavior. The question is: When acts of unfair competition, anticompetitive behavior related to intellectual property rights to the extent of being prosecuted for criminal liability, the court shall apply the law, access research on crime? Civil remedies According to the provisions of Article 6 Decree 120/2005/NĐ-CP and Article 198 of the Law on Intellectual Property, competition cases related to intellectual property rights can be resolved by civil remedies. So far, do not have any specific laws on civil applied for competition cases related to intellectual property rights. This means that, this 11

12 case governed by the general regulations applicable to civil cases as well as cases of infringement of intellectual property generally. Civil remedies are applied to handle the infringement at the request of the right holder's intellectual property or institutions, individual damage caused by the infringement, even if such acts were or being processed by means of administrative or penal measures. Jurisdiction to resolve the competition related to intellectual property rights belong to the provincial courts (Article 34 of the Civil Procedure Code, 2004). Civil remedies to allow the aggrieved party may initiate a lawsuit requesting the court to compel the acts of unfair competition, anticompetitive behavior related to intellectual property rights that cause damage to the other compensation. Principles for determining damages and compensation shall be determined as specified in Article 204 and Article 205 of the Law on Intellectual Property Rights and Article 16 and Article 20 of Decree No. 105/2006/ND-CP. Intellectual property assessment issues in the application of civil remedies set out in Chapter VI of Decree No. 105/2006/ND-CP. Application issues a temporary emergency measures set out in the Code of civil procedure 2004 (Part One, Chapter VIII) and the Intellectual Property Law (Articles 206 to 210). 3.2.Problems arising in the process of solving competition cases related to intellectual property rights law First, the current Vietnamese laws lack specific provisions of unfair competition, anticompetitive behavior related to intellectual property rights. Here are some examples: - There are no specified crimes related to acts of unfair competition and acts restricting competition in the field of intellectual property. - There are no provisions of the agreement in order to prevent parallel imports. Parallel imports (parallel import) trade in which goods or services to which the objects of intellectual property (protected) has been circulated in the market of a country, but goods and services this is imported from other countries into the country without the permission of the owner of intellectual property objects. For example: A manufacturer producing X, the product has been the protection of industrial property in the C1 and sells on C1 markets with P1. This product's manufacturer A was also sold in C2 for P2 country. The importer of the C1 can import product X from country C2 on sale in C1 for the cost of P3, conditions is lower P3 P1. State law does not prohibit parallel imports. This is reflected in the following two legal bases: (1) Point b, Clause 2, Article 125 of the Law on Intellectual Property; (2) Clause 2, Article 190 of the Intellectual Property Law; (3) of Decision 1906/2004 / QD- BYT dated 28/5/2004 of the Minister of Health regulation on the parallel importation of medicines for prevention and treatment of human diseases. China Enterprise X is the owner of the trademark Z, X business contracts allow Vietnamese enterprises Y used this label attached to goods produced in Vietnam. However, in agreement to use corporate brand Z between X and Y business terms: ban businesses Y Z branded merchandise exports to Laos for the reason that X also for business Laos allows a business to use the brand Z. But in fact, with this provision, the enterprise X desire to prevent the import of parallel imported Chinese goods from Laos 12

13 on sale in China by the price of these goods in Laos always cheaper than the selling price in China. This type of agreement is not under any agreement has been defined as anticompetitive behavior in Competition Law and Intellectual Property Law. - Lack of regulations on the valuation of intangible assets as intellectual property rights. When dealing with compensation to the aggrieved party by acts of unfair competition relating to intellectual property rights cause, it is necessary to determine the value of intangible assets as intellectual property rights. However, the laws of our country there are no regulations on this issue. Meanwhile, the standard basis for the application of the method of valuation of intangible assets by the International Valuation Committee made difficult to determine, not proper in Vietnam. This causes practical difficulties in handling cases of compensation for damage caused by the infringement of intellectual property rights cause in general and compensation for damage caused by acts of unfair competition relating to rights intellectual property rights cause in particular. - Lack of regulations on administrative penalties for acts of unfair competition other than infringement of business secrets and misleading information (use the mark protected in one country is of treaties have banned the representative or agent of the trademark owner to use the mark; registration, seized, unlawful to use the domain name). Second, the law of our country is unclear rules on unfair competition relating to intellectual property rights. Here are some examples: - Provisions on infringements of trade secrets. According to the provisions of Clause 2, Article 39 of the Law on competition, infringement of trade secrets is an act of unfair competition. Intellectual Property Law is not listed infringing business secrets in acts of unfair competition in Article 130. Article 16 of Decree 106/2006/ND-CP separate infringements trade secrets from unfair competition acts. Furthermore, paragraph 2 of Article 5 of the Law on Intellectual Property provides that: "Where there is a difference between the provisions on intellectual property rights of this Law, the provisions of other laws shall apply the provisions of this Law ". So infringing business secrets must be acts of unfair competition relating to intellectual property rights? In the opinion of the Competition Management Department (Ministry of Industry and Trade), as stipulated in Article 16 of Decree 106/2006/ND-CP, trade secret infringement is an act of unfair competition relating to rights intellectual property rights and to be addressed by competition law. -Above analysis shows that: the laws of our country do not clear the difference between infringement of intellectual property rights for acts of unfair competition relating to intellectual property rights. This leads to difficulties for the application of the law to deal with each specific case. Even the specialized agencies such as the Department of Intellectual Property and Competition Management Department also encountered many problems when considering the settlement of unfair competition cases related to intellectual property rights. There are some who say: acts of unfair competition relating to intellectual property rights is an act of infringement of intellectual property, but the element of unfair competition. Some people argue that: unfair competition relating to intellectual property rights are competitive behavior related to intellectual property objects Application of the law 13

14 In fact, acts of unfair competition relating to intellectual property rights, especially the rights of industrial property occurs. However, this behavior is less processed at the competent State agencies. Until 01/9/2006, Inspectorate of the Ministry of Science and Technology sanctioning new competition cases related to intellectual property rights through administrative measures first. This is the first case of unfair competition relating to intellectual property rights are handled by administrative measures on a national scale. In this case, the brand "GASTROPULGITE" are protected in Vietnam under the international registration number of SCRAS Company, a member company of the IPSEN Group (France). SCRAS inspectors of the Ministry of Science and Technology's handling violations of Ha Tay Pharmaceutical JSC found that Ha Tay Pharmaceutical JSC drug treatment for eating disorders goods branded "GASTRODIC". According SCRAS, letters, colors, the combination of these factors and the presentation of the product box GASTRODIC confusing with the GASTROPULGITE product of SCRAS. After reviewing the incident, Inspector of the Ministry of Science and Technology has sanctioned for administrative violations in Ha Tay Pharmaceutical Joint Stock Company with the amount of 10.5 million VND. Specifically: The use of the mark has been registered for protection on the product packaging confusing to consumers in violation of Article 6 (1) (b) of Decree 12-CP dated 16/3/1999 of the Government on handlingadministrative violations in the field of industrial property. This behavior is subject to a fine of 500,000. Use only the misleading consumers as to the origin of the product for the purpose of unfair competition in violation of Article 130 of the Law on Intellectual Property. This behavior is subject to a fine of 10,000,000. Currently, the act of unfair competition relating to intellectual property rights are resolved mainly through administrative measures; including, the market management agency is the agency handling many. The competition cases related to intellectual property rights have not been resolved in the courts in civil proceedings or criminal. Therefore, the judge lacks judicial experience in this kind of work. In our country do not have the competent authorities responsible valuation of intangible assets, while intangible assets is a specific type of property, especially intellectual property. Personnel staff currently perform the evaluation of the value of tangible assets not qualified professional in the field of intellectual property rights. In general, the perception of the business, the subject of intellectual property rights on the relationship between competition and intellectual property rights are not high. So, they do not protect yourself, easy to perform acts of unfair competition relating to intellectual property rights. Moreover, the low level of awareness of these subjects also make it difficult for the competent State agencies, including the courts in dealing with this kind of work. 4.Some notes for the courts in dealing with competition cases related to intellectual property right Some required First, the Court staff need to understand the complexity of competition cases related to intellectual property rights and the specific problems in the process of solving this kind of work. 14

15 Second, the trial harmonized application of competition law and intellectual property law, ensuring fair competition in the market and protect the interests of the holders of intellectual property rights. Third, the trial should be considered competition cases related to intellectual property rights are waived in accordance with the law (eg Article 10 of the Law on Competition). Fourth, the type of case officers should have in-depth knowledge of competition law and intellectual property law. Thursday, the court should coordinate closely with the Competition Management Department (Ministry of Industry and Trade) and the Intellectual Property Department (Ministry of Science and Technology) to solve this kind of work Identify acts of unfair competition relating to intellectual property rights First, to identify a specific case is the case of infringement of intellectual property alone or in competition cases related to intellectual property rights need to be noted: - For an act of infringement of registered industrial property protection: the legal treatment of intellectual property. - For infringements of industrial property objects are in the process of implementing procedures for protection (no granted protection titles) and the object is not registered for protection (eg: name trade and business secrets): regarded as acts of unfair competition related to industrial property rights and handled in accordance with competition law. - For the case of two products bearing the trademark is not confusing, but the overall presentation of the product / packaging confusion: regarded as acts of unfair competition relating to the ownership industry - Acts of unfair competition relating to intellectual property rights is an act has the following characteristics: Due to the business conducted in the course of business; Contrary to the usual standards of business ethics; In relation to the objects of intellectual property or transfer of intellectual property rights (mainly related to the objects of intellectual property); Damage or may cause damage to the interests of the State, other businesses or consumers. - Anticompetitive behavior related to intellectual property rights is an act has the following characteristics: Do business conduct; Reduces or misleading, hinder competition on the market; Related objects of intellectual property, licensing of intellectual property (primarily related to the transfer of intellectual property rights). in three forms: agreements restricting competition; abuse of market dominant position, abuse of monopoly position; economic and concentrated. - Despite the current legal regulations are not clear infringement of business secrets. However, to assert that: infringement of trade secrets is an act of unfair competition relating to intellectual property rights and the application of competition law to deal with. 15

16 - The agreement must be considered in order to prevent parallel imports is limited competition and settlement as anticompetitive behavior in competition law. Second, when dealing with competition cases related to intellectual property rights, need to pay attention to these factors the degree of violation of competition law provisions in Article 7 of Decree 120/2005/NĐ-CPand the nature and extent of infringement of intellectual property rights provided for in Article 15 of Decree No. 105/2006/ND-CP. Moreover, in the present time, if arising acts of unfair competition relating to intellectual property rights to the extent of being criminal prosecution, the possible application of Article 171 (Crime infringement industrial Property) and Article 156 (crime of counterfeiting) of the Criminal Code of 1999 to resolve The experience of some countries Learn the law and unfair competitive practices relating to intellectual property rights of the countries in the world to see: Firstly, the appropriate investment for the resolution of competition cases related to intellectual property rights embodied in the issuance of policy and legislation as well as adjust the orientation of this type. Second, competition cases related to intellectual property rights is a complex task because there is a link between the two areas of competition and intellectual property, is the interface between competition law and law office intellectual property rights. Therefore, the competent authorities, including the courts often have difficulty in solving this kind of work. In the European Community, the first case of competition related to intellectual property rights have been resolved on the basis of the principle of free trade in the community (free movement of goods in the European Community) and not to the provisions of competition law and intellectual property. Then, the types of cases are settled in accordance with the provisions of competition law, in particular Articles 81 and 82 of the Treaty of the European Community (EC Treaty). But in China, the first case of unfair competition relating to intellectual property rights (Lihua v.. Business Trading Co.., Trademark "Lux") was settled as an infringement for ordinary trademarks. Third, as the economy grows, the competition cases related to intellectual property rights, the more diverse and more complex. For example, the fact in the European Community shows that abuse of intellectual property rights to restrict competition expressed in the following five basic forms: refusal to provide goods and services (refusals to supply); forcing buyers to buy these products together to buy goods subject to intellectual property protection (tie-ins); valuation is too high (excessive pricing); valuing nature of discrimination (discriminatory pricing); priced too low for the purpose of eliminating competitors (predatory pricing). Fourth, the need to distinguish clearly infringements of intellectual property rights and common acts of unfair competition relating to ownership of intellectual property. Empiric trial of the European Court (ECJ), any abuse of intellectual property rights will lead to market fragmentation, artificially maintain prices, or mandatory nature of distribution conditionsseparate, not equal to other business partners can be regarded as acts of unfair competition relating to intellectual property rights. According to Japanese law and practice, the competition cases related to industrial property objects have been registered for protection to be addressed in accordance with 16

17 the law of intellectual property; competition cases related to industrial property objects unregistered protection shall be settled in accordance with the provisions of competition law. Thursday, in the process of settlement of competition cases related to intellectual property rights, always see the conflict between the protection of intellectual property rights protection and fair competition. For such cases, it is necessary to: - Review of competition policy, the protection of intellectual property rights policy of the state; - Apply the harmonization of competition law and intellectual property law; - Review of exemptions. CONCLUSION At present, the economy is growing at a high speed, and we are deeply integrated, wider region and the world economy. This context makes the competition between firms, between firms with foreign businesses become stronger, more intense. Therefore, the acts of unfair competition in general and unfair competition related to intellectual property are also more complex. This fact requires us, including the staff of the trial must be acutely aware of the importance of the settlement of this new competition. Settlement of competition cases related to intellectual property rights will contribute to both promote innovation, while ensuring that business owners can get a healthy business environment. Hence, will promote the development of our economy stronger and more sustainable. /. Google translation for reference purpose only 17