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Jurisdiction of Vietnamese Courts in the Civil Litigation of Intellectual Property Rights

18

SEP

2020

Erroneous determination of jurisdiction of court is the cause of long-delayed IP lawsuits

Territorial jurisdiction of court and court-level jurisdiction is an important issue because if a dispute is deemed to have misrepresented its territorial jurisdiction of court or court-level jurisdiction, it will result in the case being a long delay due to transfer to another court of competent jurisdiction, or where the court already heard the trial, such judgement may be in danger of being revoked according to judicial review (cassation review) procedure.

For example, one of the reasons for the authorship and copyright dispute surrounding the best-selling comic series Than Dong Dat Viet (Thần Đồng Đất Việt)[1] that reportedly took 12 years to hear the first instance is the wrong determination of jurisdiction of court, ie. early the year of 2007 the People’s Court of District 1, Ho Chi Minh city accepted the case, but afterwards the case were transferred to the Ho Chi Minh City People's Court. By 2008, the plaintiff changed his petition to sue, withdrew the petition and then re-file the petition to the People’s Court of District 1.

As such, it is necessary to clearly determine that a dispute of intellectual property rights would fall into the jurisdiction of court of which province or city (territorial jurisdiction of court), would belong to the jurisdiction of which court under a particular province or city (court-level jurisdiction), or would be under the jurisdiction of a court that plaintiff has the right to choose (jurisdiction of court at the plaintiff's choice)

Territorial Jurisdiction of Court and Court-Level Jurisdiction

Regarding territorial jurisdiction, if the defendant is an individual, the court with competence to hear first instance would be the court where the defendant resides or works, or would be the court where the defendant is headquartered, if the defendant is an agency or organization. However, upon the written agreement by the parties, the litigants may also choose the court of residence, work of the plaintiff where the plaintiff is an individual, or the court where the plaintiff's office is located, if the plaintiff is an agency or organization[2]

With regard to court-level jurisdiction, district-level people's courts are competent to settle the first-instance procedure against all disputes of intellectual property rights provided that these disputes are civil disputes, or/and there is no foreign element[3] other than a business dispute, specifically an intellectual property dispute is only considered a commercial dispute only when such dispute occurred amongst individuals, or organizations one another and had profit purposes amongst themselves[4].

Jurisdiction of Court at the request of Plaintiff

In addition to the above principle for determining territorial jurisdiction of court and court-level jurisdiction, the plaintiff has the right to choose a court to resolve civil and commercial disputes related to intellectual property rights in some cases, particularly[5]:

  1. Court with competence is the court where the defendant resides, works, has the last office, or where the defendant has property where the defendant's place of residence, work or office is unknown;
  2. Court in charge is the court where the organization is headquartered, or where the organization has a branch if the dispute arises from the operation of its branch.
  3. Court in charge of settlement is the court where the plaintiff resides, works, has a head office if the defendant does not have a place of residence, work or office in Vietnam.
  4. Court with competence is the court where the plaintiff resides, works, is headquartered or where the damage occurs if the dispute arises from non-contractual damages;
  5. Court in charge is the court where the contract is performed if the dispute arises from the contractual relationship;
  6. Court in charge is the court where one of the defendants resides, works, is located if the defendants reside, works or are based in different places.

Bross & Partners have had experience in criminal litigation and civil litigation in cases involving intellectual property rights as well as experience in handling infringements of intellectual property rights by administrative measures. Should you have specific needs, please contact: vinh@bross.vn; cellphone 84-903 287 057, 84-4-3555 3466; Wechat: wxid_56evtn82p2vf22; Skype: vinh.bross.

Bross & Partners, a renowned and qualified Patent, Design, Trademark and Copyright agent of Vietnam, constantly ranked and recommended by the Managing Intellectual Property (MIP), World Trademark Review (WTR), Legal 500 Asia Pacific, AsiaLaw Profiles, Asia IP and Asian Legal Business, is providing clients all over the world with the reliable, affordable contentious and non-contentious IP services including enforcement, anti-counterfeiting, litigation regarding trademark, trade name, industrial design, patent, copyright and domain name.


[1] See the summary of first instance judgment no. 35/2019/DS-ST of the People's Court of District 1 Ho Chi Minh City on February 18, 2019 in the article TAKE A LOOK AT THE FIRST INSTANCE VERDICT OF COPYRIGHT DISPUTE “THAN DONG DAT VIET” BEST-SELLING COMIC SERIES RECENTLY DECIDED BY A COURT IN VIETNAM” tại link: http://bross.vn/newsletter/ip-news-update/Take-a-Look-at-the-First-Instance-Verdict-of-Copyright-Dispute--%E2%80%9CThan-Dong-Dat-Viet%E2%80%9D-Bestselling-Comic-Series-Recently-Decided-by-a-Court-in-Vietnam-1489

[2] Clause 1, Section 39 Civil Proceeding Code of 2015

[3] According to Clause 2, Article 464 of the 2015 Civil Procedure Code, a case is considered a civil case with a foreign element if it falls into one of the following cases:

a) There is at least one of the participating parties being foreign individuals, agencies and organizations;

b) The parties involved are Vietnamese citizens, agencies and organizations, but the establishment, change, implementation or termination of that relationship takes place overseas;

c) The parties involved are Vietnamese citizens, agencies and organizations but the subject of such civil relations are overseas.

[4] Point 1, clause 1 Section 35, Clause 4 Section 26 and Clause 2 Section 30 Civil Proceeding Code of 2015

[5] Clause 1 Section 40 Civil Proceeding Code of 2015

About the Firm

Bross & Partners
Address 21st Floor, Charm Vit Tower, 117 Tran Duy Hung Str., Cau Giay, Hanoi, Vietnam.
Tel 84-24-3555 3466
Fax 84-24-3555 3499
Email vinh@bross.vn
Link www.bross.vn

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