1. Clarification of ‘causing damage’: Under the IP Law, it is necessary to prove that an infringement “causes damage to consumers, society and the IP rights owner.”  No guidance, however, is provided as to whether it is necessary to establish actual damage  or sufficient to show a likeli¬hood of damage.  Decree 97 provides that all infringements automatically cause damage; therefore, it is no longer necessary to prove damage when seeking administrative action. 

2. Expert opinion can once again be obtained from the NOIP: Prior to the Intellectual Property Act 2005 (2005 Act), an IPR holder could seek expert opinions on infringement from the National Office of Intellectual Property (NOIP), the country’s most knowledgeable IP body. Since 2005, however, only independent IP assessment agencies have been authorised to provide expert opinions, and only one of these has been licensed: the Vietnam Intellectual Property Research Institute (VIPRI). Reinstating the NOIP’s ability to provide expert opinion should help  speed up the enforcement process.

3. Defining and Standardising Administrative Remedies: ‘Penalty bands’,  based on the nature and value of the infringing goods, have been introduced, with a maximum sanction of VND500,000,000 (approx. US$25,000). Where the value of the goods cannot be determined, the fine will be based on the nature and the seriousness of the infringement, with a maximum penalty of VND90,000,000 (approx. US$ 4,500). It is questionable whether an appropriate fine can be determined on the basis of either the  value of infringing goods (which often have little or no value), or the  'seriousness' of an infringement. 

4. Providing clearer lines between authorities: The enforcement system is clarified by providing which authority will handle which type of IP infringement.  The MOST Inspectorate is authorised to handle all infringement cases; the police are authorised to handle cases involving counterfeit goods; and the Market Management Bureau (MMB) is authorised to act in relation to the trading, transportation or distribution of infringing/counterfeit goods in the marketplace.

5. Action to be taken against cybersquatting: Where the empowered authority rules that a disputed domain name should be revoked, the Registrars and the VNNIC (Vietnam Internet Network Information Centre) must abide  by the decision.  This will enable a quicker and more cost-effective resolution than can be achieved by mediation, arbitration or civil court action. 

6. New provisions for acts of unfair competition: Previously the system for sanctioning acts of unfair competition was complex and time consuming; few cases were ever dealt with by the Vietnam Competition Authority (VCA).   A simpler and quicker procedure has now been introduced, which will allow the VCA to deal with acts of unfair competition more effectively and expeditiously.  

Conclusion

Overall, the provisions of the new Decree introduce  a streamlined process  for taking administrative action. Of particular importance are the provisions relating to domain name infringements and those empowering the NOIP to provide expert opinions, which will help speed up the enforcement process.