Date: 10-12-2021 by: Banca IP Law Firm
Topic 4: Draft amendments and supplements to Article 211 of the Law on Intellectual Property: Many deputies agreed to remain the current Law
On October 26, 2021, the National Assembly discussed online the draft law on amending and supplementing the Intellectual Property Law after 16 years of implementation. Many deputies discussed and spoke about many outstanding issues of this draft law, of which the outstanding issue was the proposal to remove administrative sanctions for acts of infringement intellectual property rights are currently prescribed at Point a, Clause 1, Article 211 of the Intellectual Property Law.
As mentioned in previous topics, on October 04, 2021, the Ministry of Science and Technology has finished preparing the 3rd draft of the Law on amending and supplementing several articles of the Law on Intellectual Property for discussion at the 2nd Session - 15th National Assembly. In the draft, there are two options for amending and supplementing Article 211 of the Law on Intellectual Property, specifically:
89. Amendments and supplements to Article 211
Option 1:
To amend and supplement Point a, Clause 1, Article 211 as follows:
"a) Infringing upon intellectual property rights with respect to copyrights, related rights, trademarks, geographical indications, plant varieties, causing damage to the authors, owners, consumers or to society; "
Option 2:
"a) Infringing upon intellectual property rights causes damage to authors, owners, consumers or to society;
(The text in Option 2 is the current text of Point a, Clause 1, Article 211 of the Intellectual Property Law. )
At the online discussion session, many congressmen actively participated in discussing the contents of the draft submitted by the Government to the National Assembly. The proposal to eliminate administrative handling measures for infringements of intellectual property rights, or in other words, to narrow the scope of violations to be handled by administrative measures in this field, was also concerned by many congressmen.
Several congressmen analyzed that the removal of administrative sanctions for infringement of intellectual property rights would lead to a legal loophole, increasing the burden of the court while Vietnam has not had a court specializing in intellectual property.
Through the discussion of the deputies, the majority of deputies proposed to choose option 2, applying administrative sanctions for all acts of infringement upon intellectual property rights as the current Law is in force. The reason is that if choosing option 1, only administrative handling measures will be applied for acts of infringement upon copyright, related rights, trademarks, geographical indications, plant varieties, etc., would narrow the scope of administrative handling in the field of intellectual property, leading to a legal loophole in timely detecting, preventing and handling illegal acts in the field of industrial property such as infringement of patent rights, industrial designs, utility inventions, trade names, business secrets, acts of unfair competition. This will decrease the effectiveness and efficiency of state management in timely detecting and handling law violations in this field of law on intellectual property. At the same time, it is also a risk that leads to an increase in violations in the field of intellectual property.
In addition, acts of infringement upon the rights of patents, industrial designs, utility inventions, trade names, business secrets, and acts of unfair competition are considered the acts that not only infringe civil rights but also violate social and economic order. Besides civil measures, handling of claims for damages, infringements can be handled by administrative measures, higher can be handled by criminal measures.
The exclusion of administrative measures to handle acts of infringement upon the rights of patents, industrial designs, utility inventions, trade names, business secrets, acts of unfair competition above would not ensure the consistency and uniformity of the law in handling acts of infringement of industrial property rights (as defined in Clause 4, Article 4 of the Intellectual Property Law). In addition, if the above acts are excluded administrative measures from handling, it would cause negative effect on business investment environment in our country, and also increase the burden on the current courts, especially in the context that there is no specialized court on intellectual property rights in Vietnam, and also create more challenges for litigants when using civil procedure measures while the courts have been already overloaded of cases.
"In the process of sanctioning administrative violations, it is necessary to provide for timely assurance to increase deterrence and combine with other handling measures" - deputy Nguyen Van Huy (Thai Binh) commented at the discussion.
In the report on receiving opinions from the National Assembly Standing Committee, the Law Committee and related Agencies, the Drafting Agency has seriously researched, evaluated and reviewed the suitability of the Option 1 for the current conditions of Vietnam. Explaining the discussion opinions of the National Assembly deputies, Minister of Science and Technology Huynh Thanh Dat said that most of the opinions of the deputies agreed with the plan to keep the current provisions of the law, and apply sanctions for acts of infringement upon intellectual property rights by administrative measures (option 2). On the basis of gaining the above comments, the Drafting Agency will report and propose to the Government to receive opinions on not narrowing the scope of sanctioning of administrative violations in the field of IP, according to the Option 2.
Thus, in the 2nd Session - the 15th National Assembly, congressmen have discussed and gave opinions on the draft law on amending and supplementing Article 211 of the Intellectual Property Law. As expected, this Draft will be approved by the National Assembly deputies in the 3rd session. We will update the amendments to the IP law after the National Assembly approves them.
(Sources for reference in the article: most.gov.vn, tuoitre.vn, vov.vn, internet)
