- Intellectual Property Law (Article 201) dated 29 Nobember 2005, effective as from 1 July 2006;
- Government Decree No. 105/2006/ND-CP dated September 22, 2006 detailing and guiding the implementation of a number of articles of the law on intellectual property on protection of intellectual property rights and on state management of intellectual property;
- Circular No. 01/2008/TT-BKHCN dated February 2, 2008 of Ministry on Science and Technoly guiding the procedures for granting or revoking IP Assessor’s Card and Certificate of IP Assessment Organization.
I- CONTENTS AND AREAS OF INTELLECTUAL PROPERTY ASSESSMENT
Contents of Intellectual property assessment:
- Determination of evidence for calculation of the level of damage;
- Determination of infringing elements, infringing products/services, the element serving as a basis for determination of the value of the protected intellectual property right subject matter, the infringing objects;
- Determination of the ability to prove the intellectual property right holder status, infringement, infringing goods or the ability to prove to the contrary of documents and evidence used in the dispute or infringement;
- Other circumstances of the case that need to be clarified.
2. Areas of Intellectual property assessment: Assessment of copyright and related rights; Assessment of industrial property rights; and Assessment of the rights to plant varieties.
II. INTELLECTUAL PROPERTY ASSESSORS AND ASSESSMENT ORGANIZATIONS
1. Conditions for granting IP Assessor’s Card: Having a university degree in the area of assessment; Possessing good moral qualities; Having full civil act capacity;
Having passed a professional exam of knowledge about intellectual property law, scientific and technical capability, professional skills and experience for performing assessment of on the IP contents.
2 Conditions for IP Assessment Organizations:
- Being a scientific or technological organization of legal entity;
- Having at least two members who have intellectual property assessor’s cards;
- Having a certificate of registration of scientific and technological activities and a certificate of registration of the assessment business or practice according to current law;
3. Forms of undertaking IP Assessment activities:
- Indivisual IP Assessor;
- IP Assessment Organization.
<!--[if !supportLists]-->4. <!--[endif]-->Competent persons in evolved in granting and revoking:
<!--[if !supportLists]-->a. <!--[endif]-->With regards to IP Assessor’s Card: competence belongs to the General Director of the National Office on Intellectual Property (NOIP)
<!--[if !supportLists]-->b. <!--[endif]-->With regards to IP Assessment Organization: competence belongs to the General Director of the NOIP and the General Director of Science and Technology Department.
III. COMPETENCE TO SOLICIT AND THE RIGHT TO REQUEST INTELLECTUAL PROPERTY ASSESSMENT
1. Competence to solicit Intellectual Property Assessment: the agencies with competence to solicit intellectual property assessment are agencies with competence to settle disputes, handle infringements and settle intellectual property-related complaints and denunciations, which are:
<!--[if !supportLists]-->· <!--[endif]-->Courts;
<!--[if !supportLists]-->· <!--[endif]-->Inspectorates;
<!--[if !supportLists]-->· <!--[endif]-->Market management offices;
<!--[if !supportLists]-->· <!--[endif]-->Customs offices;
<!--[if !supportLists]-->· <!--[endif]-->- Police offices; and
<!--[if !supportLists]-->· <!--[endif]-->People's committees at all levels.
<!--[if !supportLists]-->2. <!--[endif]-->Right to request intellectual property assessment: the following organizations and individuals are entitled to request intellectual property assessment:
<!--[if !supportLists]-->· <!--[endif]-->Intellectual property right holders;
<!--[if !supportLists]-->· <!--[endif]-->Organizations and individuals subject to a request for handling of acts of infringement or intellectual property-related complaint or denunciation;
<!--[if !supportLists]-->· <!--[endif]-->Other organizations and individuals with related rights and interests in an intellectual property-related dispute, infringement, complaint or denunciatio
IV. SOLICITATION, MAKING REQUEST AND PERFORMANCE OF INTELLECTUAL PROPERTY ASSESSMENT
1. Any solicitation of assessment must be made in writing with the following principal contents: (i) Name and address of the agency soliciting assessment; (ii) name and position of the person competent to solicit assessment; (iii) Name and address of the assessment organization or the assessor; (iv) Subject matter and details that need to be assessed; (v) Relevant evidence, documents and exhibits;(vi) The time limit for notifying the assessment conclusions.;
2. A request for assessment must be made in the form of an assessment service contract between the person requesting assessment and an assessment organization or an assessor with the following principal details: (i) Name and address of the organization or individual requesting assessment; (ii) Name and address of the assessment organization or the assessor; (iii) Contents of the assessment request; (iv) Relevant evidence, documents and exhibits; (v) Time limit for notifying assessment conclusions; (vi) Rights and obligations of the parties; (vii) Liabilities for breach of the contract.
3. Performance of intellectual property assessment: intellectual property assessment may be performed by one or several intellectual property assessors.
- Individual assessment means assessment performed by a single assessor. In this case the assessors shall perform the whole of the assessment and be responsible for their assessment conclusions.
- Collective assessment means assessment performed by two or more assessors.The assessors shall jointly perform the assessment, sign the common assessment conclusion document and be jointly responsible for assessment conclusions; if the assessors hold different opinions, each assessor shall write his/her own opinion in the common assessment conclusion document and be responsible for that opinion. In case of collective assessment of issues in different professional areas, each assessor shall perform his/her assessment job and be responsible for his/her assessment conclusion.
Prepared by Mrs. Le Huong Giang
GINTASSET Intellectual Property Law Firm