IP issues in Vietnam’s participation in new-gen FTA: Key considerations for businesses (p2)
- Difficulties and challenges for Vietnamese enterprises:
Besides the many opportunities mentioned above, commitments on intellectual property (IP) also bring certain challenges for Vietnamese enterprises.
The anti-infringement of IPR will be stricter, the enforcement of IPR will be stricter, while the limited awareness of regulations, processes and procedures related to IP will make Vietnamese enterprises encounter difficulties in establishing and protecting, exploiting rights or passively handling IP disputes, such as border controls, being sued and subject to administrative or criminal penalties due to infringing trademarks, using unlicensed technology, performing acts of imitation, copying, plagiarism, etc.
The ability to compete with foreign enterprises is poor, especially in terms of proactively establishing IP protection, intellectual property development strategy, creativity, brand, reputation, knowledge and skills technical, financial capacity and human resources. In fact, the establishment of IP rights in Europe or FTA member countries may be faster than in Vietnam, but due to many strict requirements, high costs, and more complicated procedures, SMEs are still hesitant.
(1) Enterprise’s perception of intellectual property
In fact, any business now has IP rights, but they have little interest in or are late to know about these intangible assets, that is, the rights of Trademarks (businesses often call them Trademarks). , Trade Names (can be company names), trade secrets (such as customer lists, formulas, processes, programs, internal documents of the enterprise), or Industrial Designs ( Designs and packaging of products), Copyrights (for software such as applications, websites, etc.) and Inventions or useful solutions (innovations, technological improvements, equipment, etc.) . Vietnamese enterprises have learned many lessons when bringing very high quality products that have built a well-known brand name with domestic prestige and are known to international customers, but faced many problems. or obstacles abroad, and one of the main reasons is the loss of IP rights in these markets.
(2) Human resources for Enterprises in the field of intellectual property
One of the difficulties for enterprises is the limitation of human resources in the IP industry. It is very difficult to find good experts in IP because there are currently no schools in Vietnam that provide specialized training in IP. The nature of the IPR Field is both technical and legal so specialized that legal professionals or lawyers may not be as technically savvy as engineers (e.g. reading patent descriptions or draft satisfactory patent applications), and the engineers were not familiar with the legal process. In addition, IP experts also need to have good foreign language skills to be able to consult in disputes with foreign elements, in fact, up to 90% of intellectual property disputes involve foreign countries. outside. Therefore, it is not easy to find good experts in the IP industry to build an IP department in an enterprise.
Not only in enterprises, even in competent agencies, there is not much knowledge and practical experience in handling IP violations, including police forces, people’s procuracies and people’s courts at all levels. There are very few prosecutors or judges with extensive IP expertise. Therefore, in recent years, the number of violations in this field brought to trial is almost negligible.
(3) Professional services on intellectual property
There are many companies/representatives providing IP services, however, the general situation is that businesses still find it very difficult to access quality services. The long registration time makes businesses feel tired of waiting, it is too late for businesses to come to IP because awareness is not enough to understand the importance of IP for the existence and development of enterprises, more into a lengthy registration that is also unlikely to be protected, so the Enterprise is not interested in pursuing it. Not to mention, registering IP abroad is much more difficult. For example, if an enterprise wants to register a patent or trademark abroad, it is also very difficult to find reputable and capable units to work directly to perform services for customers. This leads to ineffective registration, businesses feel bewildered and cannot devote time or money to pursuing the process of establishing their IP rights abroad.
(4) Legal issues and disputes.
New generation FTAs require tightening enforcement of IPR through civil and administrative sanctions, especially criminal ones. The CPTPP requires the criminalization of a series of violations of rights in the direction of lowering the elements that constitute crimes. Therefore, there will be more crimes in the field of IPR, Enterprises need to be more careful and serious in enforcing IP rights.
One of the differences of the field of IP litigation from other areas of dispute is that the legal costs of litigating IP rights are also included in the reasonable cost of compensation. This leads to, on the one hand, businesses need to be more careful to avoid infringing on the IP rights of others, leading to being sued because they will have to compensate for damage, on the other hand, businesses are also more confident when dealing with infringements of rights in Vietnam. Court when its IP rights are infringed, the infringing party must also pay procedural costs such as court fees, expertise fees, attorney fees and cash compensation for acts of IP infringement that they have committed. cause.
2. Faced with these opportunities and difficulties, what should businesses do?
(1) Be more proactive with intellectual property rights.
Enterprises need to be more proactive in understanding IP regulations. Because the registration or enforcement of IP rights is mostly a right of the enterprise, not an obligation, so the enterprise is often not forced to pay attention. To change this, businesses need to proactively better understand IP rights, about an intangible asset that accounts for 90% of Coca-Cola’s total assets, 85% of IBM’s total assets or 80% of Microsoft’s total assets. . From the right awareness of IP, enterprises will have reasonable and effective strategies for IP management and development.
In addition, businesses should pay more attention to investing in IP, especially thinking about IP as soon as new ideas are formed, instead of leaving it too late, most of which are difficult to salvage or cost a lot of money. time. Because IP protection has very high regulations and standards, for example, to set up an enterprise, choosing a name for an enterprise to write in the business registration is relatively easy and quick, however, if the name is protected exclusively as a trademark, it will take a longer time (one to several years) with more complicated conditions and procedures. The registration of Patent or Industrial Design can take up to 2-4 years and must ensure technical level or Novelty (for the world).
The establishment and protection of IP in Vietnam in particular or the world in general needs to take a very long time (lasting up to 2-3 years) and there are many steps and most of the documents need to be supplemented depending on the progress. single handler. Therefore, enterprises also need qualified human resources to monitor and coordinate handling. Otherwise, it is very likely that the Application will be considered canceled or not accepted and not protected in practice. There are hundreds of enterprises, after years of waiting, there is also a notice of granting a degree from the National Office of Intellectual Property, but due to no person in charge or not paying attention (when changing the enterprise’s address), they did not paid the fee for the degree, was eventually refused to grant the degree for failing to fulfill the obligation to pay the fee.
In addition, businesses should also use the services of professional IP companies (called Industrial Property Representatives) to assist businesses in successfully establishing rights as well as effectively enforcing IP rights. fruit.
Enterprises should also actively access and consult open documents: that is, regularly refer to databases of patents, industrial designs and trademarks in order to discover current technical solutions and new technologies, identifying new partners for IP transfer or suppliers, potential new markets, monitoring competitor activities, identifying potential infringers and avoiding infringe or infringe on the rights of a competitor. Enterprises also need to have a clear strategy for IP enforcement.
Business owners who are future technology owners need to first know how to protect and exploit their intellectual property to enrich themselves in a sustainable way, thereby helping the country become rich and strong, enhance competitiveness, develop endogenous technology, lead enterprises to sustainable growth and strong development.
(2) Learn from foreign enterprises in the management of intellectual property
In corporations and businesses around the world, the issue of IP has been paid much attention from a very early age and invested in a methodical way because they have realized and understood the importance of IP rights, that is, strength, value, and resources. guiding principles and decisions for the development of the corporation. IP rights in these corporations are also very well protected by always having a combination of business, research and development (R&D) and IP activities.
Normally, each large corporation/enterprise in the world has an IP management department, a market inspector (usually under the management of the head office, directly in charge of the Group Chairman or Vice President). ), and IP departments at workshops, R&D centers and subsidiaries. IP activities in corporations around the world often start right at the R&D stage (sometimes even at the concept stage). Corporations and companies around the world have built IP globalization strategies and achieved very strong growth rates thanks to this strategy, the actual numbers have proved the effectiveness of the strategy and are worth it. so that SMEs also need to learn, learn and apply.
Meanwhile, in the real situation in Vietnam, our businesses often think of IP when it is too late, usually until becoming the defendant of a lawsuit, or when IP rights are infringed (fake goods, goods, etc.) imitation) or earlier is also at the stage after the product has been launched on the market or after the business has been established and put into operation. Consequences of that delay is that the Enterprise loses the right to register (due to loss of novelty for Inventions, Industrial Designs or pre-registered by others – for trademarks), is sued and has to pay damages. damage with legal costs and, more importantly, loss of time, effort and reputation when entangled in legal cases where you are the infringer of IP rights.
Huong Tran