Do Thi Minh Thuy[1], LL.D.
Thang Long University
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Administrative measures have so far constituted the primary method of enforcing intellectual property rights in Vietnam. In the context of the country’s enormous efforts to streamline its political system and enhance the proactive role of enterprises in developing and protecting their assets (including intellectual assets), intellectual property rights enforcement by state administrative agencies has revealed inadequacies. This article analyzes theoretical and practical issues arising in intellectual property rights enforcement in Vietnam and proposes solutions to make the enforcement mechanism more effective and efficient in the current period.
Introduction
The Fourth Industrial Revolution, with the vigorous development of science, technology and artificial intelligence, is posing numerous challenges to the protection and enforcement of Intellectual Property Rights (IPRs) around the world, including Vietnam.
In this context, to meet practical needs, the Law on Intellectual Property (IP Law) was amended and supplemented (for the third time) in 2022, setting out new requirements regarding specific IPRs protection activities and the legal responsibility of third parties, i.e., intermediary service providers, in the telecommunications network and the Internet. However, IPRs enforcement measures applicable in the country remain virtually unchanged since the IP Law was enacted for the first time in 2005.
When it comes to IPRs protection, enforcement carried out by competent state administrative agencies largely with administrative measures has seen shortcomings. This requires the shift to a mechanism where civil measures are predominant, with the court playing the central role and enterprises as IPRs holders proactively participating in IPRs enforcement, to meet practical demands.
Characteristics of the IPRs enforcement mechanism
Firstly, Vietnam’s law specifies various IPRs enforcement measures that are compliant with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the new-generation free trade agreements (FTAs) to which Vietnam is a contracting party.
As per Article 199.1 of the 2005 IP Law (as revised in 2009, 2019 and 2022), organizations and individuals that commit acts of infringing upon the IPRs of others will be handled by civil, administrative or criminal measures, depending on the nature and severity of their infringements. This provision is basically consistent with the requirements set by the TRIPS Agreement and the new-generation FTAs relating to IPRs protection (including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership - CPTPP and the European Union-Vietnam Free Trade Agreement - EVFTA) of which Vietnam is a member. As provided by these agreements, in addition to judicial (civil and criminal) measures as primary ones, member states with less developed court systems may apply administrative measures to ensure the enforcement of protected IPRs.
Secondly, Vietnam’s system of agencies in charge of IPRs enforcement by administrative measures is quite complex, and to date, there is no legal provision on the focal-point agency in charge of enforcement.
Article 200 of the IP Law stipulates that the application of civil and criminal measures falls under the jurisdiction of courts and the application of administrative measures falls within the competence of inspection, public security, market surveillance and customs agencies, and People’s Committees at all levels. Meanwhile, customs offices have the authority to apply IPRs-related control measures for exported and imported goods.
At present, agencies competent to enforce IP rights by administrative measures are arranged in different ministries, e.g., the market surveillance force under the Ministry of Industry and Trade; the economic police force of the Ministry of Public Security; the customs force within the Ministry of Finance; and inspectorates of the Government, provinces and cities, and sector-specific inspectorates (formerly specialized inspectorates of ministries)[2], etc.
Thirdly, for the first time, the IP tribunals are acknowledged by law though having yet to be established.
Under the 2024 Law on Organization of People’s Courts (as revised by Law 81/2025/QH15 dated June 24, 2025), the IP tribunals (and the bankruptcy tribunals) are for the first time recognized (together with other tribunals, such as the criminal, civil, economic, administrative, and family and juvenile tribunals). As stated in Article 60.1, the IP tribunals may be established at certain regional People’s Courts under decisions of the Chief Justice of the Supreme People’s Court.
This is a significant stride, affirming that the IPRs enforcement mechanism in Vietnam is gradually shifting toward the global trend. However, to date, no IP tribunal has been established at any regional People’s Court and the adjudication of IPRs-related cases continues to be carried out by the competent courts (under Article 152.5 of the Law on Organization of People’s Courts).
Practical situation of IPRs enforcement
Since the IPRs are in essence civil rights, in the author’s opinion, IPRs enforcement should ensure a harmony between protecting the interests of IPRs holders and the interests of the State and the community.
First of all, it is necessary to identify and address major inadequacies of the current IPRs enforcement mechanism in Vietnam.
First, the reliance on administrative measures for IPRs enforcement creates a burden on the State in terms of cost, organizational apparatus and effectiveness.
Regarding costs: Unlike civil measures, with which litigants must pay the court fee (fixed or based on the value of the case) when the court resolves an IPRs infringement case, for administrative measures, the State covers all costs of settling such a case. For example, to handle an industrial property rights infringement, the rights holder (directly or through a legal representative in Vietnam) files an application for infringement handling with the competent local or central agency. If the request meets the requirements, within 30 days after receiving it, the competent agency notifies the applicant of the intended time, procedures and measures for handling. The IPRs holder may be required to cooperate with the competent agency in inspection, verification and handling of the infringement. If the infringing act has been identified, the infringer may be subject to fine, temporary suspension of production or business activities related to the infringing goods/services, forced removal of the infringing element from the infringing goods or business means, or confiscation and destruction of the infringing goods or business means[3].
Throghout the case settlement process (between one month and three months per case), the IPRs holder does not have to pay any costs. This might lead to the fact that a significant number of IPRs holders have a passive attitude of relying on administrative measures to protect their rights and interests (even where the infringing element is unclear and the case is essentially an IPRs dispute).
Regarding effectiveness: Enforcement by administrative measures may be unreasonable and ineffective for complicated cases. Under current regulations, administrative measures can be applied to handle all IPRs infringements, including: (i) infringements that are quite clear, such as counterfeiting marks or geographical indications, and making pirated goods (Article 213 of the IP Law); (ii) infringements that are difficult to be identified and highly specialized, e.g., patent infringement, infringements upon trade secrets, trade names, and unfair competition (Articles 126, 127, 129 and 130 of the IP Law). Regarding this matter, due to the nature of administrative agencies which is different from judicial agencies, the application of administrative measures is often unreasonable and ineffective.
For instance, in the field of industrial property, determining an act of unfair competition related to the use of misleading trade indications as specified in Article 130.1 of the IP Law is a complicated task. It requires “fair legal proceedings” that allow both parties to prove the infringement (or non-infringement) and claim compensation for damage caused by inappropriate actions of either party. When the case is settled by administrative measures, the position of the party subject to administrative handling is relatively disadvantaged compared to the position of the respondent in civil proceedings, as the former does not have the right to counterclaim or request compensation in case the IPRs holder abuses his/her/its right or makes inappropriate claims.
Regarding risks for enforcement agencies: State administrative agencies may encounter a significant risk of being drawn into litigation when imposing administrative sanctions for cases that are essentially IPRs disputes between organizations and individuals. This is because in such complicated cases, either party or both parties is/are dissatisfied with the settlement decision.
Second, the current civil mechanism remains not effective enough to ensure the timeliness and effectiveness of IPRs enforcement.
According to statistics of the IPRs enforcement agencies, the number of infringement cases reviewed and settled by courts accounts for a modest proportion compared to those settled by administrative agencies. This reality shows the hesitation of IPRs holders to file lawsuits to protect their lawful rights and interests. This is attributable to such problems as prolonged settlement period, infeasibility of provisional urgent measures, and judges’ limited knowledge about IPRs. Regarding settlement period: Under Article 203 of the Civil Procedure Code, the period of first-instance trial preparation is four months (extendable by up to two months) for civil cases; or two months (extendable by up to one month) for commercial business cases. However, in practice, the majority of IPRs disputes resolved by courts have often taken between one year and two years to complete, with some lasting up to 12 years.
Regarding application of provisional urgent measures: A very fundamental requirement of IPRs holders when filing civil lawsuits is to request the respondents to immediately stop the infringing acts. Therefore, requesting the court to apply provisional urgent measures in most of the cases is quite necessary. However, in trial practice, the application of provisional urgent measures against IPRs infringements has proven infeasible due to the inconsistency of current legal provisions.
For example: Under Article 136.1 of the Civil Procedure Code, to request the application of a provisional urgent measure, the requesting party has to deposit an amount (as security) that is equivalent to the loss or damage that may arise due to consequences of the improper application of the provisional urgent measure to protect interests of the requested party and to prevent the abuse of the right to request the application of the provisional urgent measure. Meanwhile, Article 208.2 of the IP Law stipulates that the party requesting the application of a provisional urgent measure only needs to deposit an amount equal to 20 percent of the value of the goods subject to the provisional urgent measure or at least VND 20 million if the value of the goods is unidentifiable.
Regarding capacity of judges: One of the main reasons attributable to low effectiveness of applied civil measures is the limited expertise and knowledge of judges. In the resolution of cases involving IPRs disputes, court judgments often depend on opinions and conclusions of specialized agencies (such as the National Office of Intellectual Property of Vietnam and the Vietnam Intellectual Property Research Institute). This dependence makes civil measures less “attractive” to IPRs holders when deciding to file lawsuits at court.
Third, the streamlining of the state apparatus has created changes and gaps in the system of IPRs enforcement agencies in Vietnam.
Regarding administrative measures: Administrative agencies with the function of IPRs enforcement (such as the market surveillance, customs and economic police forces) are undergoing reorganization. Particularly, specialized inspectorates responsible for IPRs enforcement (which were deemed to have in-depth expertise for handling complicated IPRs infringements by administrative measures) terminated their operation as of June 1, 2025. This has left a significant gap in the system of IPRs enforcement agencies in Vietnam, especially when IPRs infringements are becoming more and more sophisticated and complicated.
Regarding civil measures: As analyzed above, under the Law on Organization of People’s Courts, for the first time in Vietnam, the IP tribunal is recognized as a specialized court. This is a significant step forward, affirming that the IPRs enforcement by civil measures is becoming an inevitable trend. However, satisfying both the requirement on streamlining of the organizational apparatus and the urgent requirement on arrangement of human and material resources to establish and operate the IP tribunal poses challenges to the organization and operation of the court system. This is also a crucial problem that needs to be solved when enhancing the role of civil measures in IPRs enforcement in Vietnam.
Solutions to reform the IPRs enforcement mechanism
At present, it is really essential to reform the IPRs enforcement mechanism toward reducing the burden on the state apparatus and the state budget, while ensuring the enforcement effectiveness for enterprises and the entire society. To achieve this, the following solutions should be synchronously implemented.
Firstly, to revise the IP Law (and relevant legal documents) toward reducing the number of infringing acts that may be handled by administrative measures.
Administrative measures may only be applied to handle clear infringements, such as counterfeiting marks or geographical indications, and making pirated goods (Article 213 of the IP Law).
For specialized, complicated or hardly identifiable infringing acts, such as infringing upon the rights to inventions, industrial designs, layout designs, trade secrets or trade names, and unfair competition (Articles 126, 127, 129 and 130 of the IP Law), they should be settled by courts through civil or criminal proceedings, depending on the severity and nature of infringements.
Secondly, to revise the IP Law’s provisions on provisional urgent measures in order to ensure their uniform and feasible application and resolutely shift toward the mechanism for IPRs enforcement and dispute resolution by courts.
In the coming time, to make the IPRs enforcement and dispute resolution by civil measures a preferred option for related parties, the IP tribunal should be formed and put into operation quickly. For its effective operation, the court sector should invest more in improving the quality of judge training, and propose as soon as possible revisions to the specific provisions on procedures for IPRs dispute resolution, especially for the application of provisional urgent measures.
To address the inconsistency between the Civil Procedure Code and the IP Law, the provisions on money amounts/documents to guarantee requests for application of provisional urgent measures of Article 208.2 of the IP Law should be revised to align with Article 136.1 of the Civil Procedure Code, in order to protect the lawful rights and interests of the parties and prevent the abuse of the right to request the application of provisional urgent measures.
Thirdly, to encourage and support enterprises to apply infringement prevention measures and proactively resolve disputes through alternative measures.
From a legal perspective, IPRs are the property rights of enterprises (rights holders). Therefore, proactively applying measures to protect intellectual assets should be regarded as the primary responsibility of enterprises with the support of the State through:
Encouraging enterprises and platforms engaged in online business operations to develop and/or use advanced technologies (such as digital rights management - DRM) to control access and protect digitized IP objects from unauthorized reproduction and distribution in cyberspace; and,
Increasing support for enterprises to improve their skills for alternative dispute resolution (ADR) through negotiation, mediation or arbitration. The State’s support policies in training, and establishing a legal framework for ADR centers to operate effectively, and promoting the application of technology in dispute resolution will help enterprises easily access and apply ADR measures.-
[1] Email: thuydtm@thanglong.edu.vn
[2] Under Prime Minister Decision 755/QD-TTg dated April 13, 2025, the specialized inspectorates terminate their operation as of June 1, 2025.
[3] Government Decree 99/2013/ND-CP dated August 29, 2013, on sanctioning of administrative violations in the field of industrial property (as revised in 2021 and 2024).
* The Vietnamese version of this Article is published on the Vietnam Journal of Legal Studies, issue No. 8/2025
