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HANDLING IN THE CASE OF RECEIVING THE NOTIFICATION ON TERMINATION OF MARKS VIOLATION OF ANOTHER SUBJECT

  10/08/2020

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Recently, many organizations have questioned that, when another enterprise sent a notice of proposal to remove a trademark containing a component that violated the previous control mark and requested to withdraw the application brands, how to respond and handle?

  1. Legal grounds for requesting termination of trademark infringement

Pursuant to Point b, Clause 1, Article 198 of the 2005 Intellectual Property Law, amended in 2009 (LSHTT), in order to protect their intellectual property rights, the intellectual property right holder has the right to “request organizations and individuals that have committed acts of infringing upon intellectual property rights must stop such infringements, apologize, publicly rectify and compensate for damage “.

And in Clause 2, Article 203 of the Law on Intellectual Property, the evidence proving that they are the owner of the trademark ownership includes a trademark protection title or a trademark use contract.

As such, the right to request removal of a trademark is the right of the trademark owner or the subject to whom the right to use is transferred, originating from “the right to prohibit others from using and the right to request organizations and individuals to act infringing upon exclusive rights to use a protected trademark must stop the infringement ”.

Accordingly, whether it is a large or small company, an individual or an organization, it only needs to be the trademark owner to be granted a protection title by the NOIP or the organization or individual transferred by the owner licensing the right to use a trademark under a trademark use contract when detecting that organizations or individuals using trademarks identical or similar to their trademarks have the right to request such organizations or individuals. Quickly remove signs of infringement.

  1. What should do when receiving notice of trademark removal?

When you receive a notice of trademark removal, you need to request proof of a trademark protection certificate or a contract of use of the mark to prove your eligibility to handle the infringement. This is to avoid abusing the right to request removal of a trademark or the status quo that is threatened by many bad objects. As in the case where the Enterprise or its representative lawyer fails to produce evidence of a trademark protection certificate or a valid authorization document, it is not considered to be in a position to ask others to remove the sign Trademark infringement.

In addition, it is also necessary to consider the conditions under the provisions of law to be considered as having “elements infringing upon trademark rights” or not. If so, to what extent the violation may be subject to legal consequences and how to resolve it appropriately. An industrial property assessment conclusion report may be required by the National Institute of Intellectual Property Science.

On the other hand, in the case that the Enterprise requires termination with sufficient evidence to prove that their request is Legal, we should agree, negotiate and provide grounds for our use. Use of trademarks will not adversely affect their business situation for further use.

In short, it is very common to be asked whether the company is a big or small company, an individual or an organization, just a trademark owner is granted a certificate of protection by the NOIP. The trademark or organization or individual is transferred the right to use the trademark by the owner through a trademark use contract when detecting that the organization or individual using a trademark identical or similar to his trademark has the right to request Bridge that organizations and individuals quickly remove signs of infringement.

Upon request, the authorities will enforce and protect the rights of that person. Consequently, violators must bear quite heavy burdens. Pursuant to Article 11 of Decree No. 99/2013 / ND-CP on handling of administrative violations in the field of industrial property, administrative sanctions for infringement include warning and monetary fine. Depending on the seriousness and the violation, the fine level may be up to VND 250,000,000 (the fine will be twice for the violating organization) and may be applied with additional penalties such as suspending business activities of goods and services from 01 to 03 months. In addition, remedial measures that may be applied include: forcible removal of infringing elements, forcible destruction of material evidences and means of violations, forcible removal from the Vietnamese territory of infringing goods, forcible change of business name or return of illegal benefits gained from infringement of industrial property rights to a trademark. Besides, in many cases, it can be sued to Court or arbitration by a civil case or even according to the Criminal Code 2015 (not yet in effect), it can be prosecuted criminal responsibility.

How to deal with situations when receiving notices requiring termination of violations to avoid causing bad consequences while ensuring good rights and legitimate interests is very important. In case readers have problems, they should contact a lawyer specializing in Intellectual Property advice.

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