Joint Circular No. 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT-BKH-BTP guiding the application of certain provisions of the law in resolving disputes over intellectual property rights before the People's Court.

JOINT CIRCULAR

GUIDELINES ON THE APPLICATION OF CERTAIN PROVISIONS OF THE LAW IN RESOLVING DISPUTES CONCERNING INTELLECTUAL PROPERTY RIGHTS AT THE POPULAR COURTS

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In order to correctly and uniformly apply the provisions of the law in resolving disputes related to intellectual property rights at the popular courts, the Supreme People's Court, the Public Prosecution Office, the Ministry of Culture, Sports and Tourism, the Ministry of Science and Technology, and the Ministry of Justice hereby jointly issue the following guidelines:

A. GENERAL ISSUES

Chapter I. DISPUTES CONCERNING INTELLECTUAL PROPERTY RIGHTS WITHIN THE JURISDICTION OF THE POPULAR COURTS (AS PROVIDED FOR IN CLAUSE 4, ARTICLE 25 AND CLAUSE 2, ARTICLE 29 OF THE CIVIL PROCEDURE CODE)

1. Disputes concerning copyright

a) Disputes between individuals regarding copyright over literary, artistic, scientific works, derivative works;

b) Disputes among co-authors regarding the division of co-authorship rights;

c) Disputes between individuals and organizations regarding the ownership of copyright over works;

d) Disputes between the owner of copyright and the author regarding remuneration for the creation of works based on assigned tasks or contracts;

đ) Disputes regarding the exercise of moral rights or economic rights of the author or the owner of copyright;

e) Disputes regarding copyright over computer programs and databases between the financial provider and the material conditions that are decisive for the development of computer programs and databases with the designer and developer of such programs and databases;

g) Disputes regarding copyright over cinematographic works and stage performances between the financial investor and the technical facilities provider for the production of such works and performances with the creators and producers of such works and performances, or disputes among them regarding remuneration and other material benefits;

h) Disputes between the owner of copyright and the user of published works who uses the work without permission and does not pay royalties, affecting the normal exploitation of the work and harming the rights of the author and the owner of the work;

i) Disputes between the owner of copyright and the user of published works who uses the work without permission but should pay royalties, because the user does not pay royalties or affects the normal exploitation of the work and harms the rights of the author and the owner of copyright;

k) Disputes regarding contracts for the transfer or assignment of copyright or disputes regarding service contracts for copyright management;

l) Disputes arising from acts infringing copyright;

m) Disputes concerning succession and inheritance of economic rights under Article 20 and moral rights under Clause 3, Article 19 of the Intellectual Property Law;

n) Other disputes concerning copyright as provided for by law;

2. Disputes concerning related rights

a) Disputes between the investor and the performer regarding moral rights and economic rights over the performance; disputes between the performer and the user of the economic rights over the performance regarding remuneration;

b) Disputes between the producer of sound recordings and audiovisual recordings and the person exercising the rights of the producer of sound recordings and audiovisual recordings regarding material benefits when the producer's sound recordings and audiovisual recordings are distributed to the public;

c) Disputes between broadcasting organizations and users of the rights of broadcasting organizations regarding material benefits when the broadcasting organization's program is recorded and distributed to the public;

d) Disputes between performers, producers of sound recordings and audiovisual recordings, and broadcasting organizations and users of related rights who use the rights without permission and do not pay royalties, affecting the normal exploitation of the performance, sound recordings, audiovisual recordings, and broadcasting programs and harming the rights of performers, producers of sound recordings and audiovisual recordings, and broadcasting organizations;

đ) Disputes between authors, owners of copyright, performers, producers of sound recordings and audiovisual recordings, and broadcasting organizations and users of related rights who use the rights without permission but should pay royalties, because the user does not pay royalties or affects the normal exploitation of the performance, sound recordings, audiovisual recordings, and broadcasting programs and harms the rights of performers, producers of sound recordings and audiovisual recordings, and broadcasting organizations;

e) Disputes regarding related rights over performances, sound recordings, audiovisual recordings, and broadcasting programs (disputes over who is the owner of the performance, sound recording, audiovisual recording, and broadcasting program...);

g) Disputes arising from acts infringing related rights;

h) Disputes concerning succession and inheritance of related rights;

i) Other disputes concerning related rights as provided for by law;

3. Disputes concerning industrial property rights

a) Disputes concerning the registration of patents, designs, trademarks, geographical indications;

b) Disputes concerning priority rights for patent, design, trademark applications;

c) Disputes concerning copyright over patents, designs, and layout-designs;

d) Disputes concerning moral rights and economic rights of the author of patents, designs, and layout-designs;

đ) Disputes concerning provisional rights over patents, designs, and layout-designs between the right holder to file an application for patents, designs, and layout-designs and the user of such industrial property objects or disputes regarding compensation between the owner of the protection certificate and the user of the patented invention, design, or layout-design;

e) Disputes regarding the right to prior use of patents and industrial designs between the patent and industrial design owners and the prior users related to transferring such rights to others, expanding the scope and volume of use without the permission of the owner of the intellectual property object;

g) Disputes regarding compensation amounts between the holders of patent and industrial design certificates; layout-designs with users of patents and industrial designs; layout-designs during the period from the date of publication of the application for grant of protection on the Industrial Property Gazette to the date of issuance of the certificate;

h) Disputes regarding the rights of the owner of the intellectual property object (including disputes concerning the rights of co-owners);

i) Disputes arising from acts infringing intellectual property rights;

k) Disputes arising from acts infringing the rights of authors of patents, industrial designs; layout-designs;

l) Disputes regarding remuneration for authors of patents, industrial designs, layout-designs;

m) Disputes regarding contracts for the transfer of intellectual property rights; contracts for the transfer of the right to use intellectual property objects or disputes regarding service representation contracts for intellectual property;

n) Disputes regarding inheritance and succession of intellectual property rights, property rights of authors of patents, industrial designs; layout-designs;

o) Disputes arising from unfair competition practices;

p) Other disputes regarding intellectual property rights as prescribed by law;

Chapter II. RIGHT TO INSTITUTE CIVIL ACTIONS REGARDING INTELLECTUAL PROPERTY RIGHTS

1. Right to institute civil actions regarding copyright and related rights

a) Individuals and organizations specified in Article 44 of Decree No. 100/2006/ND-CP dated September 21, 2006 of the Government detailing and guiding the implementation of certain provisions of the Civil Code and the Law on Intellectual Property regarding copyright and related rights (hereinafter referred to as Decree No. 100/2006/ND-CP) have the right to institute civil actions regarding copyright and related rights before competent courts to protect their legitimate rights and interests.

b) State agencies and related organizations within the scope of their duties and powers have the right to institute civil actions to protect public interests and state interests in the field of copyright and related rights as stipulated in Clause 3, Article 162 of the Civil Procedure Code and guided at Subsection 2.1 Section 2 Part I of Resolution No. 02/2006/NQ-HĐTP dated May 12, 2006 of the Supreme People's Court Council guiding the implementation of provisions in Part Two "Procedures for resolving cases at first-instance courts" of the Civil Procedure Code.

2. Right to institute civil actions regarding industrial property rights

a) Individuals and organizations involved in disputes over the registration of patents, industrial designs, layout-designs, trademarks, and geographical indications;

b) Authors and co-authors of patents, industrial designs, layout-designs;

c) Holders of certificates protecting patents, industrial designs, layout-designs;

d) Owners of certificates of trademark registration, international trademark registration accepted for protection in Vietnam, and well-known trademarks;

đ) Owners of industrial property rights over trade secrets and business names;

e) Individuals and organizations legally using geographical indications, or organizations representing individuals and organizations granted the right to use geographical indications;

g) Organizations and individuals whose industrial property objects are related to unfair competition practices in the field of industrial property;

h) Legal heirs of authors of patents, industrial designs, layout-designs; or legal heirs, successors of industrial property rights of owners of industrial property objects;

i) Individuals and organizations legally transferred ownership of industrial property objects;

k) Individuals and organizations legally transferred the right to use industrial property objects;

l) Individuals and organizations transferred the right to use industrial property objects according to decisions of competent state authorities;

m) Other right holders as prescribed by law.

Chapter III. CONDITIONS FOR INSTITUTING CIVIL ACTIONS REGARDING INTELLECTUAL PROPERTY RIGHTS

1. Conditions for instituting civil actions regarding copyright and related rights

a) Copyright and related rights have arisen in accordance with the provisions of Clauses 1 and 2 of Article 6 of the Intellectual Property Law. The author, owner of copyright, and owner of related rights have the right to submit applications for registration certificates of copyright and related rights in accordance with Article 49 of the Intellectual Property Law. However, this is not a mandatory procedure to enjoy copyright and related rights. When there is a dispute over copyright and related rights and the parties institute proceedings requesting the court to protect their legitimate rights and interests, the court must consider the case without distinguishing whether they have registration certificates for copyright and related rights or not, whether they have submitted applications for registration of copyright and related rights or not.

b) The term of protection of copyright and related rights still exists in accordance with the provisions of the intellectual property laws. The author, owner of copyright, and owner of related rights can only exercise their personal and property rights within the scope and duration prescribed by the intellectual property laws. The term of protection of copyright and related rights is stipulated in Clauses 2 and 3 of Article 739 of the Civil Code 2005, in Articles 27 and 34 of the Intellectual Property Law, and in Article 26 of Decree No. 100/2006/NĐ-CP. Upon expiration of the protection period for copyright and related rights as provided above (except for the personal rights specified in Clauses 1, 2, and 4 of Article 19 of the Intellectual Property Law), the rights of the author, owner of copyright, and owner of related rights will no longer be protected by the State and the law; therefore, the court will only accept complaints for resolution if those rights are still within the protection period, except in cases where the law does not specify a protection period for copyright.

2. Conditions for instituting civil actions regarding industrial property rights

2. 1. Industrial property rights have been established based on the grounds stipulated in Clause 3 of Article 6 of the Intellectual Property Law and Article 6 of Decree No. 103/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding certain provisions of the Intellectual Property Law on industrial property (hereinafter referred to as Decree No. 103/2006/NĐ-CP). It is necessary to specifically identify the dispute relating to which industrial property object (invention, design, layout-design, trademark...) to determine the basis for establishing industrial property rights for that object. Because the grounds for establishing industrial property rights for all industrial property objects are not the same in every case, some cases require registration procedures, while others do not. For example, industrial property rights for trademarks are established based on the decision to grant a certificate of protection by the National Office of Intellectual Property (Ministry of Science and Technology) according to the registration procedures prescribed in the Intellectual Property Law and other relevant legal documents, or recognition of international registrations under the provisions of international treaties to which the Socialist Republic of Vietnam is a member. In the case of well-known trademarks, industrial property rights for such trademarks are established based on the actual widespread use of the trademark and the criteria set out in Article 75 of the Intellectual Property Law without requiring a registration procedure. In cases of disputes over industrial property rights for industrial property objects and it is necessary to determine whether the industrial property rights have been legally established or not, the following distinctions should be made:

a) The basis must be the protection certificate issued by the National Office of Intellectual Property (Ministry of Science and Technology) to the applicant for registration for inventions, layout-designs, designs, trademarks (excluding well-known trademarks) and geographical indications. For international trademarks registered under the Madrid Agreement and Protocol, the basis is the recognition by the competent state management agency of such international registration.

b) The basis must be the conditions for protecting industrial property objects such as well-known trademarks, trade names, business secrets, unfair competition rights, as stipulated in Sections 4, 5, and 7 of Chapter VII of the Intellectual Property Law.

2. 2. The term of protection of industrial property rights still exists in accordance with the provisions of the intellectual property laws.

a) For industrial property rights established for industrial property objects such as inventions, designs, layout-designs, trademarks, and geographical indications, the scope of protection must be determined based on the protection certificate granted for each type of industrial property object. For example, to determine the scope of protection for an invention, the basis must be the Patent Certificate for Invention granted by the National Office of Intellectual Property (Ministry of Science and Technology).

b) For industrial property rights established for objects such as trade names and business secrets, the scope of rights is determined according to the provisions of Clauses 2 and 3 of Article 16 of Decree No. 103/2006/NĐ-CP.

c) The term of protection of industrial property rights is determined based on the validity period of the protection certificate as stipulated in Article 93 of the Intellectual Property Law. In cases where the validity of the protection certificate is terminated or its effectiveness is revoked, the industrial property rights also terminate. If the protection period expires or the protection certificate for industrial property rights is terminated or its effectiveness is revoked, the rights of the subject of industrial property rights will no longer be protected by the State and the law. Therefore, the court will only accept complaints for resolution if the infringing act occurs during the period when the protection certificate is still valid or the industrial property object is still within the protection period.

Chapter IV. APPLICATION OF LAW

1. Application of domestic regulatory legal documents

1.1. In cases where there are differences between the provisions on intellectual property in the Intellectual Property Law and those in other laws, the provisions of the Intellectual Property Law shall be applied. Before deciding to apply the provisions of the Intellectual Property Law or other regulatory legal documents, a review must be conducted to specifically identify all regulatory legal documents that contain provisions on intellectual property (including the Civil Code of 2005). Subsequently, the provisions on intellectual property in these regulatory legal documents should be compared with the corresponding provisions in the Intellectual Property Law to determine the differences in the provisions on intellectual property among these regulatory legal documents. Example 1: Clause 3, Article 738 of the Civil Code of 2005 stipulates the property rights of copyright include:

a) Reproducing the work;

b) Permitting the creation of derivative works;

c) Distributing, importing original copies and reproductions of the work;

d) Communicating the work to the public;

đ) Lending out original copies or reproductions of computer programs. In the Intellectual Property Law, property rights are provided for in Article 20. Clause 1 of Article 20 provides for six property rights. Compared to the provisions in Clause 1 of Article 20 of the Intellectual Property Law, Clause 3 of Article 738 of the Civil Code of 2005 has different provisions regarding the right to perform works publicly and the right to lend out original copies or reproductions of audiovisual works. Therefore, when resolving disputes over these rights, the provisions at Points b or e of Clause 1 of Article 20 of the Intellectual Property Law shall be applied. Example 2: The Customs Law provides for suspending customs procedures for imported and exported goods requiring protection of intellectual property rights in Articles 57, 58, and 59. The Intellectual Property Law provides for controlling exported and imported goods related to intellectual property from Article 216 to Article 219. Therefore, if it is clearly determined that the provisions of the Customs Law differ from those of the Intellectual Property Law regarding the control of exported and imported goods related to intellectual property, then the provisions of the Intellectual Property Law shall be applied.

1.2. In cases where civil issues related to intellectual property are not regulated in the Intellectual Property Law, the provisions of the Civil Code shall be applied. When applying the law to resolve disputes over intellectual property rights, the relevant provisions of the Intellectual Property Law and the Civil Code of 2005 (Part Six "Intellectual Property Rights and Technology Transfer" from Article 736 to Article 753) must be referred to in order to clearly determine whether the subject matter of the dispute is regulated in the Intellectual Property Law or in the Civil Code of 2005. If it can be determined that the subject matter of the dispute is not regulated in the Intellectual Property Law but is regulated in the Civil Code of 2005, then the corresponding provisions of the Civil Code of 2005 shall be applied. Example: According to Article 40 of the Intellectual Property Law, "organizations and individuals who inherit copyright according to the provisions of the law on inheritance are the owners of the rights specified in Article 20 and Clause 3 of Article 19 of this Law." Since the Intellectual Property Law does not provide specific regulations on the inheritance of copyright, when resolving disputes over the inheritance of copyright, the provisions of Part Four "Inheritance" of the Civil Code of 2005 shall be applied.

2. Application of International Treaties In cases where an international treaty to which the Socialist Republic of Vietnam is a party contains provisions that differ from those in the Intellectual Property Law, the provisions of that international treaty shall be applied.

2.1. An international treaty to which the Socialist Republic of Vietnam is a party is a written agreement concluded or acceded to on behalf of the State or the Government of the Socialist Republic of Vietnam with one or more States, international organizations, or other subjects of international law, regardless of its name being a treaty, convention, agreement, accord, arrangement, protocol, memorandum of understanding, exchange note, or other named document (Clause 1 of Article 2 of the Law on Conclusion, Accession, and Implementation of International Treaties).

2.2. International treaties include:

a) Multilateral international treaties. Examples: - The Berne Convention for the Protection of Literary and Artistic Works, 1971. - The Paris Convention for the Protection of Industrial Property, 1883, amended in 1979. - The Madrid Agreement Concerning the International Registration of Marks, 1891, and the Madrid Protocol Concerning the International Registration of Marks...

b) Bilateral international treaties. Examples: - The Vietnam-U.S. Trade Agreement, 2001. - The Agreement on the Protection of Intellectual Property Rights between Vietnam and Switzerland, 2000.

c) The multilateral or bilateral international treaties mentioned above may be specific international treaties on the protection of intellectual property or international treaties containing various contents including provisions on the protection of intellectual property. Examples: - The Berne Convention, 1971 is a specific multilateral international treaty on the protection of literary and artistic works. - The Vietnam-U.S. Trade Agreement is an international treaty containing various contents including provisions on the protection of intellectual property ("Chapter I: Goods Trade, Chapter II: Intellectual Property Rights and Chapter III: Services Trade...").

2.3. Conditions for applying international treaties

a) An international treaty on intellectual property to which the Socialist Republic of Vietnam is a party at the time the act or event constituting the subject of the dispute occurs.

b) The provisions of the international treaty concerning intellectual property differ from the provisions of Vietnamese regulatory legal documents on the same issue. Example: There is a difference in the term of protection of copyright between the provisions in Article 27 of the Intellectual Property Law and Clause 4 of Article 4 of the Vietnam-U.S. Trade Agreement. Due to such differences, the provision of the Vietnam-U.S. Trade Agreement shall be applied to resolve disputes over copyright between individuals and organizations in Vietnam and individuals and organizations in the United States.

c) In cases where Vietnamese regulatory legal documents have provisions identical to those of an international treaty on the same issue, the provisions of Vietnamese law shall be applied.

d) In cases where issues related to intellectual property rights are not provided for in Vietnamese law, the corresponding provisions of international treaties shall be applied.

đ) In cases of disputes over intellectual property rights involving individuals or organizations from foreign countries, where both that country and the Socialist Republic of Vietnam are members of an international treaty, the later-in-effect international treaty shall apply, except where there are different provisions or agreements between that country and the Socialist Republic of Vietnam. For example, Clause 3, Article 1, Chapter II (Intellectual Property Rights) of the Vietnam-U.S. Trade Agreement provides: "To protect and enforce intellectual property rights fully and effectively, each Party shall at least implement this Chapter and the economic provisions of: A. The Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Reproduction of Their Phonograms, 1971; B. The Berne Convention for the Protection of Literary and Artistic Works, 1971; C. The Paris Convention for the Protection of Industrial Property, 1967; D... E. The Convention on the Distribution of Program-Carrying Signals Transmitted by Satellite (1974)." Therefore, when resolving disputes over copyright involving individuals or organizations from the United States, the relevant provisions of the Vietnam-U.S. Trade Agreement and the Berne Convention must be concurrently applied.

Chapter V. APPLICATION OF TRANSFERRED PROVISIONS TO RESOLVE DISPUTES OVER INTELLECTUAL PROPERTY RIGHTS

1. Apply laws on intellectual property to resolve disputes over copyright and related rights. For copyright and related rights protected according to the effective legal regulations prior to the effective date of the Intellectual Property Law (July 1, 2006), if they still have protection periods on July 1, 2006, such protection shall continue under the provisions of the Intellectual Property Law. Therefore, when resolving such disputes, the court shall apply the provisions of the Intellectual Property Law.

2. Apply laws on intellectual property to resolve disputes over industrial property rights. "For industrial property rights established according to certificates of protection issued under the effective legal regulations prior to the effective date of the Intellectual Property Law (July 1, 2006), and the procedures for maintaining, extending, amending, transferring usage rights, transferring ownership, and resolving disputes related to such certificates of protection shall be governed by the provisions of the Intellectual Property Law, except for the provisions regarding grounds for revoking the validity of such certificates of protection, which shall only apply the provisions of the legal regulations effective at the time of issuance of the certificate of protection." Therefore, when resolving such disputes over industrial property rights, the court shall apply the provisions of the Intellectual Property Law, except in cases where the dispute involves determining the validity of the certificates of protection, in which case the provisions of the legal regulations effective at the time of issuance of the certificate of protection regarding grounds for revoking the validity of such certificates of protection shall be applied.

Chapter VI. EXPERT APPRAISAL ON INTELLECTUAL PROPERTY. Disputes over intellectual property rights are among civil disputes generally resolved according to the procedures and formalities prescribed in the Civil Procedure Code. Therefore, when there is a request for appraisal, the court must base itself on the provisions of Article 90 of the Civil Procedure Code and the guidance provided in Section 6, Part IV of Resolution No. 04/2005/NQ-HĐTP dated September 17, 2005 of the Supreme People's Court guiding the implementation of certain provisions of the Civil Procedure Code on "Evidence and Proof" and the provisions of Clause 3, Article 201 of the Intellectual Property Law and at Points a and c, Clause 2, Article 40 of Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law on protecting intellectual property rights and state management of intellectual property (hereinafter referred to as Decree No. 105/2006/NĐ-CP). B. REGARDING CERTAIN PROVISIONS OF THE INTELLECTUAL PROPERTY LAW

Chapter I. ON REQUIREMENTS FOR COMPENSATION OF DAMAGE (ARTICLES 204 AND 205 OF THE INTELLECTUAL PROPERTY LAW)

1. Damage caused by acts infringing intellectual property rights includes material damage and moral damage.

1.1. Material damage includes:

a) Losses to assets;

b) Reduction in income and profits;

c) Loss of business opportunities;

d) Reasonable costs to prevent and remedy damage.

1.2. Moral damage includes: Losses to reputation, dignity, prestige, fame, and other forms of moral harm inflicted upon authors of literary, artistic, and scientific works, performers; authors of inventions, industrial designs, and layout-designs.

1.3. Material and moral damage is actual loss in both material and moral terms directly caused to the subject of intellectual property rights and is determined based on the grounds stipulated in Clause 2, Article 16 of Decree No. 105/2006/ND-CP. When applying the provisions of Clause 2, Article 16 of Decree No. 105/2006/ND-CP, the following points must be distinguished: Only actual losses can be recognized if all three of the following conditions are met:

a) The material or moral interest is real and belongs to the person suffering damage. The material or moral interest is the result (product) of intellectual property rights and the person suffering damage is entitled to enjoy such material or moral interests.

b) The person suffering damage has the ability to achieve the material or moral interest. Under certain conditions, the person suffering damage could have achieved (obtained) such material or moral interests had the infringing act not occurred.

c) There is a reduction or loss of interest for the person suffering damage after the infringing act occurs compared to their potential to achieve such interests without the infringing act, and the infringing act is the direct cause of such reduction or loss; specifically: Before the infringement of intellectual property rights occurs, the person suffering damage already has material or moral interests. After the infringing act occurs, the person suffering damage experiences a reduction or loss of the interests they previously had, and there must be a causal relationship between the infringing act and the reduction or loss of interests. Such reduction or loss is an inevitable result of the infringing act, and conversely, the infringing act is the direct cause of such reduction or loss.

1.4. Losses to assets are determined according to the provisions of Article 17 of Decree No. 105/2006/ND-CP. When the person suffering damage requests compensation for losses to assets, they must clearly state the monetary value of the object of intellectual property at the time of infringement and the basis for determining the monetary value of that object. For example: If requesting compensation for asset losses due to infringement of a trademark, the monetary value of the trademark at the time of infringement must be clearly stated and the basis for determining its value must be provided.

1.5. Reduction in income and profits is determined according to the provisions of Article 18 of Decree No. 105/2006/ND-CP. To determine the reduction in income and profits of the person suffering damage, it must be established whether they had income or profits before the infringing act occurred.

a) Income and profits include: a.1) Income and profits obtained by the person suffering damage from directly using or exploiting the object of intellectual property. Example: The owner of an invention produces a protected product under Article 124, Clause 1, Point a of the Intellectual Property Law and sells the product to earn profits. a.2) Income and profits obtained by the person suffering damage from leasing the object of intellectual property (original or copy of cinematographic work or computer program). Example: The copyright holder of a cinematographic work or computer program exercises the economic rights stipulated in Article 20, Clause 1, Point e of the Intellectual Property Law by leasing the original or copy of the cinematographic work or computer program and receives remuneration and other material benefits from the organization or individual leasing the cinematographic work or computer program. a.3) Income and profits obtained by the person suffering damage from transferring the right to use the object of intellectual property. Example: The owner of an invention signs a contract to transfer the right to use the invention to allow another individual or organization to use the invention and receives a fee for transferring the right to use the invention according to the agreement.

b) Based on the determined income and profit of the aggrieved party, it is necessary to determine the reduction in their income and profit according to one or more bases provided for in Clause 2 of Article 18 of Decree No. 105/2006/NĐ-CP. For example: If the income and profit are obtained from directly using and exploiting intellectual property rights, then compare the actual income and profit levels before and after the infringing act has been identified to clarify the reduction in the aggrieved party's income and profit. If the income and profit of the aggrieved party, after the infringing act, are lower than those before the act, then the difference is the actual reduced income and profit of the aggrieved party. When determining the income and profit of the aggrieved party, it is necessary to clearly identify the objective factors affecting the increase or decrease in their income and profit unrelated to the infringement of intellectual property rights to ensure the determination of the actual reduced income and profit of the aggrieved party. In cases where there is an infringement of intellectual property rights, but when determining the damage at the time of the infringement compared to the time before the infringement, although the income and profit of the infringed party have not decreased, they are still lower than what they should have been if there had been no infringement, this situation is also considered as a reduction in income and profit. For example: In 2004, Company A invested a new technology production line for construction steel bearing the trademark "TN". The construction market was consuming a large amount of such steel. Based on orders, Company A could sell 200,000 tons of "TN" steel with revenue of 10 billion VND and profit of 2 billion VND (100%). Due to Company B's unauthorized use of the "TN" trademark of Company A on its own steel products and selling them to the market, Company A lost 20% of its market share, unable to sell 40,000 tons of steel, resulting in a 20% reduction in revenue and 20% in profit (equivalent to 400 million VND). Compared to the profit of the previous year (2005), the profit of 2006 did not decrease. However, due to the infringement by Company B, Company A suffered a reduction of 400 million VND in profit. This is considered the loss of Company A.

1. 6. Business opportunity losses are determined according to the provisions of Article 19 of Decree No. 105/2006/NĐ-CP. Business opportunities are favorable circumstances and real possibilities for the subject of intellectual property rights to directly use and exploit, lease, transfer the right to use, or transfer the object of intellectual property rights to others to earn profits.

a) Business opportunities include: a.1) The real possibility of directly using and exploiting the object of intellectual property rights in business. Specifically, for the subject of rights, the direct use and exploitation of their own intellectual property rights in business (on the market for profit purposes) may appear and occur under certain conditions. a.2) The real possibility of leasing the object of intellectual property rights (original or copy of cinematographic works, computer programs) to others. Specifically, the subject of rights can lease the object of intellectual property rights to individuals or organizations and has conducted negotiations and agreements on the main contents to reach a lease contract. The contract will be signed and implemented under normal conditions without third-party infringement. a.3) The real possibility of transferring the right to use the object of intellectual property rights or transferring the object of intellectual property rights to others. Specifically, the subject of rights receives an order, negotiates and agrees with the partner on the main contents to reach a contract, and the contract will be signed and implemented without third-party infringement. a.4) Other business opportunities lost due to direct infringement. This may include the loss of negotiation opportunities with partners, business opportunities, investment collaborations, marketing, advertising, trade promotion through international exhibitions, displays, etc., due to the appropriation of the object of intellectual property rights.

b) Business opportunity losses are damages quantifiable as monetary amounts of income that the aggrieved party could have obtained when implementing the possibilities provided for in Clause 1 of Article 19 of Decree No. 105/2006/NĐ-CP and detailed in point a sub-item 1.6 above, but did not obtain due to the infringement. When considering compensation claims for business opportunity losses, the court requires the aggrieved party to clearly state and prove what the lost business opportunity is, which case it falls under above, and the quantifiable value for that case for the court to consider and decide.

1. 7. Reasonable costs to prevent and remedy damage include the costs provided for in Article 20 of Decree No. 105/2006/NĐ-CP.

1. 8. Spiritual damage mentioned in sub-item 1.2 item 1 Part I, arising from the infringement of personal rights of authors of literary, artistic, and scientific works; performers, authors of inventions, industrial designs, layout designs, causing harm to the author's reputation, dignity, loss or diminution of trust (reputation), fame, and misunderstanding, and requiring compensation for spiritual damage.

2. Basis for determining the level of compensation for damage caused by the infringement of intellectual property rights

2. 1. In cases where the plaintiff proves that the infringement of intellectual property rights has caused material damage to themselves, they have the right to request the court to decide on the level of compensation for damage according to one of the bases provided for in Clause 1 of Article 205 of the Intellectual Property Law, chosen by the plaintiff.

a) When determining the profit that the defendant has obtained from implementing the act of infringing intellectual property rights as stipulated in point a, Clause 1, Article 205 of the Intellectual Property Law, consideration must be given to the expenses that the defendant has incurred which can be deducted from their total revenue or determine a portion of the defendant's profit derived from activities unrelated to the infringing act, if any. The defendant's total revenue is calculated based on all invoices and documents for selling products or using works that infringe the plaintiff's intellectual property rights that the defendant has carried out. The court determines the defendant's profit after deducting all expenses from their total revenue. Only the profit that the defendant has obtained from implementing the act of infringing intellectual property rights may be added to the total quantifiable material damage of the plaintiff, provided that the reduction in the plaintiff's profit has not been included in the total material damage.

b) The transfer price of the right to use the object of intellectual property as stipulated in point b, Clause 1, Article 205 of the Intellectual Property Law shall be determined according to one of the following methods: b.1) It is the amount payable if the right holder and the infringer freely negotiate and conclude a contract to transfer the right to use the object of intellectual property (reasonable copyright fee, license fee); the infringing act is the act of using the object of intellectual property; b.2) The hypothetical transfer price of the right to use the object of intellectual property is determined according to the method of determining the amount that the right holder (plaintiff) and the transferee (defendant) could have agreed upon at the time of the infringing act, if both parties voluntarily agree on such amount; b.3) Based on the transfer price of the right to use the object of intellectual property applied in the corresponding field as stated in previous transfer practices of the right to use the object of intellectual property (such as transfer prices of the right to use the object of intellectual property in the corresponding field that have been paid or guaranteed before the infringing act occurred, fees accepted as reasonable by many people, uniformly applied in Vietnam...).

c) The court shall only apply the statutory compensation for damages as prescribed in point c, Clause 1, Article 205 of the Intellectual Property Law (statutory compensation for damages) in cases where it is impossible to determine the amount of compensatory damages for the plaintiff based on the grounds stipulated in points a and b, Clause 1, Article 205 of the Intellectual Property Law.

Chapter C. 1) The plaintiff must prove that the determination of the amount of compensatory damages for material loss in this case cannot be carried out or there is no sufficient market for legitimate goods to determine the plaintiff's loss based on the decrease in sales revenue before and after the occurrence of the infringing act and request the court to apply statutory compensation for damages. However, if the defendant proves that the plaintiff is not truthful in proving their loss because if they claim compensation according to the provisions of points a and b, Clause 1, Article 205 of the Intellectual Property Law, the compensation would be lower than statutory compensation, and if the plaintiff claims statutory compensation for damages and the defendant proves the plaintiff's loss, then the court will not accept the plaintiff's request but may accept the defendant's request to decide the amount of compensatory damages.

Chapter C. 2) The Court shall determine the amount of compensation for material damage in cases prescribed in point c, Clause 1, Article 205 of the Intellectual Property Law, with a minimum compensation not less than five million VND and a maximum not exceeding five hundred million VND. To ensure a reasonable and appropriate compensation decision for each specific case, protecting the legitimate rights and interests of the aggrieved party, the Court must base its decision on the nature and degree of the infringement act as follows: - Circumstances and motives for infringement (infringement due to intent, negligence, coercion, or dependence, first-time infringement, repeated infringement); - Method of infringing act (individual infringement, organized infringement, self-perpetration, inducement, deception, coercion of others to commit infringement); - Territorial scope, duration, volume, scale of the infringing act (within the territory of a district in a province, multiple districts in different provinces, long or short duration, large or small volume, commercial scale...); - Impact and consequences of the infringing act (impact on the reputation, personality, prestige, and fame of the right holder within the country and internationally; material consequences for the right holder).

Chapter C. 3) The Court must base the determination of the amount of material damage compensation on each object of intellectual property rights infringed upon according to the level specified in point c.2 sub-item 2.1 item 2 herein. If there are multiple objects of intellectual property rights infringed upon in a dispute, the total compensation for all such objects shall not exceed five hundred million VND.

2. 2. The Court decides to compensate for intangible damages when the plaintiff proves that the infringement of intellectual property rights has caused intangible damage to themselves. In cases where the plaintiff cannot prove intangible damage, the Court will not accept their request. Depending on each specific case, based on the degree of intangible loss suffered by the right holder, including damage to reputation, personality, prestige, fame, and other intangible losses caused by the infringement of intellectual property rights, the Court will decide on the compensation amount within the range from five million VND to fifty million VND.

2. 3. When applying the provisions of Article 205 of the Intellectual Property Law and the guidance provided in sub-item 2.1 item 2 of this Circular, if there are multiple objects of intellectual property rights infringed upon in a dispute, the compensation for damage shall be determined separately for each object. If the Court can determine the amount of material damage compensation for one object according to points a and b, Clause 1, Article 205 of the Intellectual Property Law, but cannot determine the amount of material damage compensation for another object according to points a and b, Clause 1, Article 205 of the Intellectual Property Law, then the Court may apply simultaneously the bases stipulated in Clause 1, Article 205 of the Intellectual Property Law to determine the total compensation.

2. 4. Regarding payment of reasonable costs for hiring a lawyer. In civil proceedings, according to Clause 3, Article 144 of the Civil Procedure Code, the cost for a lawyer is borne by the party making the request, except where the parties have agreed otherwise. However, according to Clause 3, Article 205 of the Intellectual Property Law, the intellectual property right holder has the right to request the Court to compel organizations or individuals who have committed acts of infringement of intellectual property rights to pay reasonable costs for hiring a lawyer. Reasonable costs for hiring a lawyer include actual necessary expenses, commensurate with the nature and complexity of the case; the lawyer's skills, qualifications, and the time required to study the case. The amount includes the lawyer's fee and travel and accommodation expenses for the lawyer. The fee is agreed upon between the lawyer and the client in the legal service contract based on the criteria and methods of calculating fees stipulated in Article 55 of the Lawyers Law.

Chapter II. ON THE APPLICATION OF PROVISIONAL MEASURES (ARTICLES 206, 207 AND 208 OF THE INTELLECTUAL PROPERTY LAW)

1. On the right to request the application of provisional measures (Article 206 of the Intellectual Property Law).

1.1. The subject of intellectual property rights has the right to request the Court to apply provisional measures when initiating a civil lawsuit concerning intellectual property rights or after initiating such a lawsuit.

a) If they request the application of provisional measures as provided for in Articles 206 through 210 of the Intellectual Property Law, then the Court shall apply the corresponding provisions of the Intellectual Property Law.

b) If they request the application of provisional measures which are not provided for in the Intellectual Property Law but are provided for in Chapter VIII of the Civil Procedure Code, then the Court shall apply the corresponding provisions of the Civil Procedure Code. When the subject of intellectual property rights requests the Court to apply one or several provisional measures as provided for in Article 102 of the Civil Procedure Code, the Court must examine whether the requested provisional measures are related to the field of intellectual property rights in order to apply them appropriately.

1.2. The subject of intellectual property rights has the right to request the Court to apply provisional measures in cases as provided for in Clause 1 of Article 206 of the Intellectual Property Law; specifically as follows:

a) There is a risk of irreparable damage occurring to the subject of intellectual property rights. Damage is the inevitable consequence of an impending infringing act and, once it occurs, cannot be remedied for the subject of intellectual property rights if provisional measures are not applied.

b) Goods suspected of infringing intellectual property rights or evidence related to an infringing act are at risk of being dispersed or destroyed if not protected promptly. - Dispersal refers to the rapid distribution of goods suspected of infringing intellectual property rights or evidence related to an infringing act to multiple locations to hide them. - Destruction refers to making goods suspected of infringing intellectual property rights or evidence related to an infringing act become deformed or disappear completely, leaving no trace.

1.3. When requesting the Court to apply provisional measures, the subject of intellectual property rights must clearly state which case their request falls under as provided for in Clause 1 of Article 206 of the Intellectual Property Law. If the application for provisional measures is submitted simultaneously with the filing of a lawsuit, the lawsuit must be filed in accordance with the provisions of Article 164 of the Civil Procedure Code.

1.4. In cases where the lawsuit already contains contents to determine that the acceptance and resolution of the lawsuit fall within its jurisdiction, but requires amendments or supplements to certain other contents, the Court shall accept and resolve the application for provisional measures immediately in accordance with Clause 3 of Article 117 of the Civil Procedure Code and the guidance provided in Item 6 of Resolution No. 02/2005/NQ-HĐTP dated April 27, 2005 of the Supreme People's Court Council guiding the implementation of certain provisions in Chapter VIII "Provisional Measures" of the Civil Procedure Code. The request for amendment and supplementation of the lawsuit and acceptance of the case shall be carried out in accordance with Articles 169 and 171 of the Civil Procedure Code. The court authorized to issue a decision on provisional measures is the court authorized to accept and resolve the lawsuit according to the provisions of Articles 33, 34, 35 and 36 of the Civil Procedure Code and the guidance provided in Item 1 Part I of Resolution No. 01/2005/NQ-HĐTP dated March 31, 2005 of the Supreme People's Court Council guiding the implementation of certain provisions in Part One "General Provisions" of the Civil Procedure Code.

1.5. The Court decides to apply provisional measures at the request of the subject of intellectual property rights before hearing the views of the party against whom the measure is applied.

2. On provisional measures (Article 207 of the Intellectual Property Law).

2.1. The Court applies provisional measures as provided for in Clause 1 of Article 207 of the Intellectual Property Law and other measures as provided for in Article 102 of the Civil Procedure Code when the parties have a request.

2.2. Parties may simultaneously request the Court to apply provisional measures as provided for in Article 207 of the Intellectual Property Law and in Article 102 of the Civil Procedure Code, or only request the Court to apply provisional measures as provided for in Article 207 of the Intellectual Property Law or in Article 102 of the Civil Procedure Code.

2.3. Goods suspected of infringing intellectual property rights, raw materials, materials, production and business means of those goods are subject to provisional measures and are kept and managed while awaiting the Court's decision on the dispute. The plaintiff has the obligation to prepay costs for storage, preservation...of those goods, raw materials, materials, production and business means of those goods. When the decision on the dispute is made according to the plaintiff's request, the Court orders the defendant to reimburse these costs as specified in point a, Clause 1 of Article 204 of the Intellectual Property Law and guided at sub-item 1.6 item 1 Part II here.

2.4. Goods suspected of infringing intellectual property rights, raw materials, materials, production and business means of those goods that are on ships or other transport means can only have provisional measures applied to these objects without applying provisional measures to the means of transport. These goods, raw materials, materials, production and business means of those goods are unloaded from the means of transportation and placed in a place for storage.

3. On security measures (Article 208 of the Intellectual Property Law)

3.1. Depending on the request for the application of provisional measures, the person requesting the Court to apply provisional measures must provide the Court with the evidence as provided for in Clause 2 of Article 203 of the Intellectual Property Law and Clause 1 of Article 117 of the Civil Procedure Code to prove the necessity of applying those provisional measures.

3. 2. Implementing security measures. The person requesting the court to apply provisional emergency measures, regardless of whether such measures are provided for under the Intellectual Property Law or the Civil Procedure Code, must implement corresponding security measures. Depending on specific circumstances, the court shall compel the person requesting the application of provisional emergency measures to implement security measures as follows:

a) Implementing security measures in cases where the request for provisional emergency measures is stipulated in Clause 1, Article 207 of the Intellectual Property Law. The person requesting the application of provisional emergency measures must deposit a security amount in one of the forms prescribed in Clause 2, Article 208 of the Intellectual Property Law, specifically as follows: a.1) Deposit an amount of money equal to 20% of the value of the goods subject to provisional emergency measures. The court requires the person requesting the application of provisional emergency measures to clearly state the quantity and type of goods subject to provisional emergency measures, estimate, and assess the value of such goods to determine the value of the goods subject to provisional emergency measures as the basis for setting the security amount. The value of the goods subject to provisional emergency measures is determined at the time of the infringement of intellectual property rights; based on the priority grounds specified in Clause 2, Article 28 of Decree No. 105/2006/NĐ-CP. If it is not possible to determine the value of the goods subject to provisional emergency measures (after applying all necessary measures such as estimation, valuation, pricing... but still cannot determine the value of such goods), then the court decides that the minimum security amount to be deposited is twenty million dong. However, it should be noted that Point a, Clause 2, Article 208 of the Intellectual Property Law only sets a minimum limit for the security amount in cases where the value of the goods subject to provisional emergency measures cannot be determined, without setting a maximum limit for the security amount. Therefore, if through estimation and temporary calculation, considering the circumstances of the case, it is seen that actual damage may occur and exceed the minimum security amount of twenty million dong, then the court may set a higher security amount than the minimum twenty million dong, which the person requesting the application of provisional emergency measures must deposit, depending on specific circumstances. a.2) A bank guarantee or other financial institution's guarantee (regardless of whether it is a domestic or foreign bank or financial institution's guarantee with a value equal to 20% of the value of the goods subject to provisional emergency measures or at least twenty million dong). The guarantee can be in the form of a letter of guarantee or a surety contract established in accordance with Vietnamese law, except where Vietnamese law provides otherwise.

b) Implementing security measures in cases where provisional emergency measures are applied as stipulated in Clause 2, Article 207 of the Intellectual Property Law. According to Clause 2, Article 207 of the Intellectual Property Law, the right holder has the right to request the court to apply other provisional emergency measures as provided for in the Civil Procedure Code. Therefore, when deciding to apply one of the provisional emergency measures stipulated in Article 102 of the Civil Procedure Code, the court bases its decision on the provisions of Article 120 of the Civil Procedure Code and the guidance provided in Item 8 of Resolution No. 02/2005/NQ-HĐTP dated April 27, 2005 of the Supreme People's Court guiding the implementation of certain provisions in Chapter VIII "Provisional Emergency Measures" of the Civil Procedure Code, to determine specific cases requiring the implementation of security measures to compel the person requesting the application of provisional emergency measures to implement security measures.

Chapter III. ON THE RIGHTS AND OBLIGATIONS TO PROVE OF THE PARTIES (ARTICLE 203 OF THE INTELLECTUAL PROPERTY LAW)

1. Civil disputes concerning intellectual property rights are among the types of civil disputes within the jurisdiction of the People's Court as provided for in the Civil Procedure Code. Therefore, the plaintiff and defendant have the right and obligation to prove according to Article 79 of the Civil Procedure Code and Article 203 of the Intellectual Property Law.

1.1. Due to the special nature of intellectual property rights, depending on each type of dispute and specific requirements, the plaintiff shall exercise their right and obligation to prove as follows:

a) The plaintiff proves themselves as the subject of intellectual property rights by one of the evidences prescribed in Clause 2 of Article 203 of the Intellectual Property Law and Article 24 of Decree No. 105/2006/NĐ-CP.

b) In cases where disputes arise from acts infringing intellectual property rights, to prove that their intellectual property rights have been infringed, the plaintiff must provide evidence regarding acts infringing intellectual property rights or unfair competition acts as stipulated in Clause 3 of Article 203 of the Intellectual Property Law and Article 25 of Decree No. 105/2006/NĐ-CP.

c) When examining whether there is an act infringing intellectual property rights as claimed in the lawsuit, the court bases its decision on Articles 28, 35, 126, 127, 129, and 130 of the Intellectual Property Law which define acts infringing copyright, related rights, and industrial property rights. At the same time, it must apply the provisions from Article 5 to Article 15 of Chapter II of Decree No. 105/2006/NĐ-CP to determine the elements of infringement of intellectual property rights. Due to the special nature of intellectual property rights, in some cases, individuals or organizations may use objects of intellectual property without being considered as infringing intellectual property rights. Therefore, the court will base its decision on Articles 25, 26, 32, and 33, Clauses 2 and 3 of Article 125, 133, and 134 of the Intellectual Property Law to determine whether there is an act of infringement based on the specific object of intellectual property.

1.2. According to Clause 4 of Article 203 of the Intellectual Property Law, in cases involving infringement claims against a process patent, the obligation to prove lies with the defendant. The defendant must prove that their product is produced using a different process than the protected process as specified in Points a and b of Clause 4 of Article 203 of the Intellectual Property Law. The court requires the defendant to present evidence proving they have not infringed the plaintiff's intellectual property rights over the process patent.

2. The plaintiff has the right to request the court to issue a decision compelling the party controlling the evidence to produce such evidence according to Clause 5 of Article 203 of the Intellectual Property Law and Article 94 of the Civil Procedure Code and the guidance at Item 8 of Part IV of Resolution No. 04/2005/NQ-HĐTP dated September 17, 2005 of the Supreme People's Court Council guiding the implementation of certain provisions of the Civil Procedure Code on "Proof and Evidence."

3. The plaintiff must prove the damage suffered by them; must present evidence proving actual damage occurred (types of damages, what losses are included in each type of damage...) and specify the basis for determining the amount of compensation for damages as stipulated in Article 205 of the Intellectual Property Law.

Chapter IV. COURT DECISIONS APPLYING CIVIL MEASURES (ARTICLE 202 OF THE INTELLECTUAL PROPERTY LAW). The court applies civil measures pursuant to Article 202 of the Intellectual Property Law to resolve civil cases concerning intellectual property rights. Depending on specific circumstances, the court may apply one or more or all civil measures simultaneously during the process of resolving a civil case involving intellectual property rights.

1. Order to Cease Infringing Acts

1.1. At the request of the plaintiff, the court decides to order the person committing the infringing act to immediately cease such acts (for example: ordering the person infringing copyright to stop reproducing the work without the author's or copyright owner's permission; ordering the person infringing industrial property rights on trademarks to stop using signs identical with the registered trademark for goods or services covered by that trademark...).

1.2. The court may decide to order the person committing the infringing act to cease the infringing act in the judgment or in the decision applying provisional emergency measures pursuant to Article 206, Clause 2 of Article 207 of the Intellectual Property Law and Clause 12 of Article 102 and Article 115 of the Civil Procedure Code.

1.3. In the judgment or decision, the court must specify in detail the intellectual property rights infringed and the infringing acts. At the same time, the court must clearly stipulate the actions that the person committing the infringing act must perform and refrain from performing to strictly enforce the judgment or decision of the court.

1.4. According to Clause 1 of Article 123 of the Civil Procedure Code, the decision applying provisional emergency measures takes immediate effect. Therefore, if the person subject to provisional emergency measures to cease infringing acts appeals against that decision, they must still comply with it during the appeal period and the resolution of the appeal as provided for in Articles 124 and 125 of the Civil Procedure Code. For cases where the court orders in the judgment to cease infringing acts and that judgment is appealed or protested, according to Clause 1 of Article 254 of the Civil Procedure Code, "Parts of the judgment or decision of first instance that are appealed or protested shall not be enforced until the provisions of the law allow immediate enforcement." Therefore, it is necessary to base on the specific provisions of the legal normative document allowing immediate enforcement of parts of the judgment or decision of first instance that are appealed or protested and the above provision of the Civil Procedure Code to declare in the judgment or decision: "The decision to order cessation of infringing acts shall be immediately enforced despite being appealed or protested."

2. Order to Apologize and Make Public Correction

2.1. The court decides in the judgment or decision to order the person committing the infringing act to apologize and make public correction to restore the reputation, personality, prestige, fame... of the subject of intellectual property rights that have been infringed. For example: The person infringing copyright has altered, cut, or distorted the work causing the public to misunderstand the author, damaging the reputation and prestige of the author. Ordering an apology and making public correction aims to protect the personal rights of the author as stipulated in Clause 4 of Article 19 of the Intellectual Property Law (protecting the integrity of the work) and restoring the reputation and prestige of the author. If the parties agree among themselves on the content, method of apologizing and making public correction and the costs of implementing these actions, and such agreement does not violate the law or social ethics, then the court will recognize their agreement.

2.2. In cases where the parties cannot reach an agreement on the content, method of implementation, and costs of apologizing and making public correction, the court will decide based on the nature of the infringing act and the extent and consequences caused by it regarding the content, duration of the apology and public correction, and the costs of implementation. Apologizing and making public correction can be carried out directly at the main address of the aggrieved party or published publicly in three consecutive issues of a central daily newspaper or a local newspaper where the main address of the aggrieved party is located.

3. Order to Fulfill Civil Obligations

3. The order to fulfill civil obligations is decided by the court to be applied to the person who violates civil obligations towards the subject of intellectual property rights. [Failure to perform or performing incorrectly the obligations agreed upon under the contract and bearing civil liability towards the subject of intellectual property rights (the right holder)]. When applying this measure, it is necessary to refer to the corresponding provisions in Sections 2 and 3 of Chapter XVII, Part III of the Civil Code of 2005.

4. Order to Compensate for Damages

4.1. The person committing an infringement of intellectual property rights that causes material and non-material damages to the subject of intellectual property rights must compensate. The liability for compensation of damages of the person committing the infringement of intellectual property rights is determined based on the grounds specified in Clause 1 of Article 604 of the Civil Code and the guidance provided in Section 1 of Part I of Resolution No. 03/2006/NQ-HĐTP dated July 8, 2006 of the Supreme People's Court Council guiding the application of some provisions of the Civil Code of 2005 on compensation for damages outside contracts.

5. Order the destruction or distribution or use for non-commercial purposes of goods, raw materials, materials, and means primarily used to produce and trade infringing goods, provided that such actions do not affect the exploitation rights of the intellectual property right holder.

5. 1. The court shall consider the decision to order the destruction or distribution or use for non-commercial purposes of the goods, raw materials, materials, and means mentioned above, regardless of whether the right holder has requested it or not.

5. 2. The order for destruction or distribution or use for non-commercial purposes must be based on the provisions of Clause 5 of Article 202 of the Intellectual Property Law, Articles 30 and 31 of Decree No. 105/2006/NĐ-CP. For example, Company X illegally uses the trademark "AJINOMOTO" of Company A, which is popular among consumers in the market, to attach to its own MSG products for sale on the market. Company A sues Company X to request the court to order Company X to stop the illegal use of the "AJINOMOTO" trademark, destroy the counterfeit trademarks that have been printed but not yet used, and handle the MSG products bearing the counterfeit "AJINOMOTO" trademark. The court, based on the provisions of Clause 5 of Article 202 of the Intellectual Property Law and Article 30 of Decree No. 105/2006/NĐ-CP, decides to order Company X to destroy the seized counterfeit trademarks, remove the "AJINOMOTO" trademark from the MSG products, and distribute those MSG products to the orphan children's care center in District B for humanitarian purposes.

5. 3. When deciding to order the destruction of goods, raw materials, materials, and means primarily used to produce and trade infringing goods, the court must decide that the person committing the infringement of intellectual property rights shall bear the costs of such destruction.

Chapter C. COOPERATION IN RESOLVING DISPUTES OVER INTELLECTUAL PROPERTY RIGHTS. During the process of resolving disputes over intellectual property rights, there must be close cooperation between the courts, the prosecution office, the Copyright Office (Ministry of Culture, Sports and Tourism), provincial Departments of Culture and Information, the National Office of Intellectual Property (Ministry of Science and Technology), provincial Departments of Science and Technology where the cases are being heard, and the Vietnam Internet Center (Ministry of Information and Communications) to carry out the following tasks:

1. When there are specialized issues in the field of intellectual property rights for which the court has requested opinions, the Copyright Office, provincial Departments of Culture and Information, the National Office of Intellectual Property, provincial Departments of Science and Technology, and the Vietnam Internet Center have the responsibility to respond to the issues requested by the court.

2. When prosecuting and trying criminal cases and finding acts of infringement of intellectual property rights, the prosecution office and the court need to notify the Copyright Office, provincial Departments of Culture and Information, the National Office of Intellectual Property, provincial Departments of Science and Technology, and the Vietnam Internet Center so that these agencies can implement monitoring and statistics on the situation and results of protecting intellectual property rights in people's courts within their functional scope.

3. During the process of handling infringements and resolving disputes, if acts of infringement of intellectual property rights are found to constitute criminal offenses under the Penal Code, then the competent authorities shall notify and transfer relevant documents to the People's Prosecution Office with jurisdiction to examine and decide on criminal proceedings.

Chapter D. EFFECTIVE DATE OF THE CIRCULAR

1. This Circular shall take effect fifteen days from the date of publication in the Official Gazette. This Circular replaces Circular Joint Circular No. 01/2001/TANDTC-VKSNDTC-BVHTT dated December 5, 2001, issued by the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Culture and Information guiding the application of certain provisions of the Civil Code in resolving disputes related to copyright before the People's Courts.

2. Cases that have been resolved in accordance with the relevant laws, where judgments and decisions of the courts have become legally binding, shall not be subject to the guidance provided in this Circular for supervisory review proceedings, except in cases where there are other grounds.

3. For cases involving intellectual property rights disputes arising before January 1, 2006 (the effective date of the 2005 Civil Code), the provisions of the 1995 Civil Code, and the regulatory legal documents guiding the application of the 1995 Civil Code on intellectual property rights shall be applied to resolve such disputes.

4. For cases involving intellectual property rights disputes arising from January 1, 2006 to June 30, 2006 (the effective date of the Intellectual Property Law), the provisions of the 2005 Civil Code, and the regulatory legal documents guiding the application of the 2005 Civil Code on intellectual property rights shall be applied to resolve such disputes. During the implementation of the guidance provided in this Circular, if there are any difficulties or new issues arise, the courts at all levels must report in writing so that the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Culture, Sports and Tourism, the Ministry of Science and Technology, and the Ministry of Justice can provide timely explanations or supplementary guidance.

During the implementation of the guidance provided in this Circular, if there are any difficulties or new issues arise, the courts at all levels must report in writing so that the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Culture, Sports and Tourism, the Ministry of Science and Technology, and the Ministry of Justice can provide timely explanations or supplementary guidance./.