M. Le and I were classmates at the Kyushu University's graduate school of law (Class of 1999-2001). With his solid legal background and an outstanding final thesis, he was a valedictorian at our graduation ceremony. He was then promoted as one of the Chief Justices of Vietnam. We stay in touch on a regular basis, and there is a very old question that I keep asking him whenever I have a chance to see him: "when Vietnam will have an IP court?" Over the years, M. Le has never responded to my question, but I trust that he and his peers are brain-storming for this.
By way of background, under the current IP Law (Article 211.1, point a), an organization or individual "[c]ommitting an act of infringing upon intellectual property rights, which causes damage to the authors, the owners, consumers or the society" will be subject to administrative sanctions. This provision is of a general nature, which can be understood that an administrative measure can be applied to handle all infringements of the rights of the IP right holders relating to all IP rights, such as copyright and related rights, industrial property rights, rights to plant varieties, etc. This is seemingly the fundamental reason as well as the legal basis why IP rights holders and state management agencies prefer using administrative measures to handle IP rights infringement.
To differentiate the types of handling of IP right infringements, and concurrently, to promote the role of the judiciary branch (the court) in the protection of intellectual property rights, the draft amendments and supplementations of a number of articles of the 2005 IP Law (as amended, supplemented in 2019) (as of March 2021) proposes to amend Article 211.1, point a of the current Law as follows: "Committing an act of infringing upon intellectual property rights with respect to copyrights, related rights, trademarks, geographical indications, plant varieties, which causes damage to the authors, the owners, consumers or the society ". With such revised content, it can be understood that any infringement of other intellectual property rights subject matter, namely: (i) inventions, (ii) industrial design, (iii) layout designs of semiconductor integrated circuits, (iv) trade name, and (v) trade secrets, will not be subject to administrative measures. Therefore, in principle, if any dispute relating to the abovementioned IP rights subject matters arises, the Court will be the sole authority with jurisdiction over such dispute. The above proposal, if approved, will be a great stride in the process of transfer of jurisdiction over IP disputes, thereby enhancing the role of the Court in protecting intellectual property rights. However, it will also bring about significant challenges to the court system. This is because the abovementioned IP subject matters, particularly inventions or layout designs of semiconductor integrated circuits, are all highly technical matters by nature, court officials who handle the case will need to master not only the law on intellectual property but also many other scientific and technological issues.
The draft amendments to Vietnam current IP Law envisage that if any dispute relating to certain IP rights arises, the Court will be the sole authority with jurisdiction over such dispute.