베트남의 특허쟁송제도에 관한 고찰

In Vietnam, Korean patent applications are ranked third after Japan and the United States, and the trade between Korean and Vietnam has been expanded. However, there is a lack of researches on intellectual property rights in Vietnam. This study examines the aspects of the judicial institution in Vietnam, the laws and regulations on patents and administrative institution, the judgment procedure, and the recently revised Vietnamese Intellectual Property law, and compares them with the Korean system. As to the question of the existence of criminal penalties for infringement of patent rights, in Vietnam, criminal penalties exist for the infringement of patent rights, and criminal remedies can be taken as a criminal action. However, in Vietnam, some of intellectual property infringements are not subject to criminal penalties. Administrative measure or criminal punishment is applied for cases only when illegal infringement of another person’s intellectual property for commercial purposes resulted in serious consequences or there is same infringement which had been already received administrate measures to illegal infringement. Thus, criminal remedies can only be undertaken under certain conditions, so there is a difference between the Korean system and the Vietnamese system in this regard. Compared to a country who does not have criminal penalties, such as the United States, for patent infringement, Vietnam is in an intermediate position between the United States and Korea. The reason of different position to criminal penalty in Vietnam may be worth to consider for development of criminal punishment system to intellectual property infringement in Korea. As to the administrative measure system for intellectual property infringement, it is possible to issue administrative measure to intellectual property infringement upon request of intellectual property owner in Vietnam. Administrative measure to suspend infringement by government is more effective in terms of the speed of execution for solving the problem of patent infringement than civil litigation. This administrative measure is a unique system adopted by socialist countries such as China and Vietnam. While, for quick resolution of intellectual property infringement, Korea recently adopted Concentration of Intellectual Property Litigation Jurisdiction of the patent court, Korean Intellectual Property Office utilizes administrative measure narrowly to unfair competition. For quick resolution method for intellectual infringement problem, it is worth to consider active intervention of the state. The revised 2019 Intellectual Property law in Vietnam allow the use of trademark licensor to be regarded as trademark owners’ use; eased the requirement of trademark license agreements without need of registration; expanded the grace period for novelty from 6 months to 12 months; definitely regulated that common name is not protected by geographical indication; regulated the relationship between geographical indication and pending trademark application; adopted electronic filing system; revised the damage compensation provision for the abuse of intellectual property rights. It is evaluated that these revisions elevated intellectual property protection system in Vietnam to the level of requirement of Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CCTPP”), which Vietnam recently joined.