VIETNAM NATIONAL UNIVERSITY-HCMC THE UNIVERSITY OF ECONOMICS AND LAW FACULTY OF ECONOMIC LAW BACHELOR’S THESIS TRADEMARK INFRINGEMENT IN E- COMMERCE - REGULATIONS OF SOME COUNTRIES AND EXPERIENCE FOR VIETNAM Supervisor: Tran Minh Tu (LL.) Author: Pham Ngoc Hai Yen Student Code No.: K185021712 Ho Chi Minh City, May 2022 VIETNAM NATIONAL UNIVERSITY-HCMC THE UNIVERSITY OF ECONOMICS AND LAW FACULTY OF ECONOMIC LAW BACHELOR’S THESIS TRADEMARK INFRINGEMENT IN E- COMMERCE - REGULATIONS OF SOME COUNTRIES AND EXPERIENCE FOR VIETNAM Supervisor: Tran Minh Tu (LL.) Author: Pham Ngoc Hai Yen Student Code No.: K185021712 Ho Chi Minh City, May 2022 i REPRESENTATION I, Pham Ngoc Hai Yen, having student code No. K185021712, by this statement, represent that this Thesis is my own work, under the guidance of my Supervisor. All the contents in this Thesis are accurate; the data and news are updated to the present time; the experts’ opinions and ideas used as references for analyzing, synthesizing, and learning have been fully cited. I will take full responsibility for my representation.
Besides, I would like to express my sincere thanks to my Supervisor for guiding and advising me during the process of completing my Thesis. I would also like to express my special thanks to the Management Board of the Faculty of Economic Law of the University of Economics and Law (“UEL”) and other lectures in the Council for creating conditions for me to defend this Thesis. Once again, I pledge the truthfulness of this representation. Kindly regards, Pham Ngoc Hai Yen ii LIST OF ABBREVIATIONS No.
Abbreviations Meaning 1 E-commerce Electronic commerce 2 IPR Intellectual property rights 3 NOIP The National Office of Intellectual Property of Vietnam 4 United States U.S iii LIST OF DIAGRAMS Diagram No. Retail Ecommerce Sales Worldwide Forecasts from 2019 to 2024. Top 10 Countries Ranked by Retail Ecommerce Sales, 2020 & 2021. Retail E-commerce Sales of the U.33 iv CONTENTS LIST OF ABBREVIATIONS.
ii LIST OF DIAGRAMS .1 CHAPTER 1: BUSINESS ACTIVITIES OF TRADEMARK INFRINGING GOODS IN E-COMMERCE. Business activities in e-commerce. Definition of e-commerce. Features of e-commerce.
Business process in e-commerce. Reality of business activities of trademark infringing goods in e-commerce. Trademarks and their use in e-commerce. Business activities of trademark infringing goods in e-commerce.
The laws on control of business activities of trademark infringing goods in e-commerce in Vietnam. Laws on intellectual property. Laws on e-commerce. Laws on protection of consumers’ rights.
Laws on competition. 26 CONCLUSION OF CHAPTER 1. 27 CHAPTER 2: REGULATIONS ON TRADEMARK INFRINGEMENT IN E-COMMERCE OF SOME COUNTRIES AND EXPERIENCE FOR VIETNAM. Regulations on trademark infringement in e-commerce in China.
Regulations on trademark infringement in e-commerce in U. Experience for Vietnam. 37 v CONCLUSION OF CHAPTER 2 .43 LIST OF REFERENCE DOCUMENTS. Research reason for the Topic With outstanding advantages such as the ability to receive and search for information quickly, the ability to make international payments, and remove border barriers between countries, e-commerce has become an integral part of modern life on a worldwide scale.
E-commerce, in particular, is a potential business form that many businesses and retailers are targeting in recent years. From 2020 to 2021, the prolonged period of social distancing due to the Covid-19 pandemic has caused many economic sectors to struggle, but it has brought exceptional development opportunities for e- commerce. According to a survey by Forrester - a market research firm based in the U.S, in 2020, 58% of consumers prefer to purchase online, 12% increase compared to before the pandemic.1 In addition, according to statistics from eMaketer.com, if the e-commerce revenue of the global B2C2 business model in 2020 reaches $4.280 billion, this figure will be $4.891 billion in 2021 and will reach $5.3 In Vietnam, e- commerce has not only maintained its growing pace, but has also achieved a significant breakthrough with an average growth rate of 25-30% per year over the last few years.4 The average growth rate of Vietnam’s e-commerce in the period 2020-2025 is predicted to be 29% and by 2025 the scale is estimated to reach $52 billion.5 1 Vietnam Industry and Trade Information Centre, “Xu huong tieu dung hien dai lam thay doi mo hinh kinh doanh cua doanh nghiep trong tinh hinh moi”, https://moit.vn/tin-tuc/bo-cong-thuong-voi-doanh-nghiep/xu-huong- tieu-dung-hien-dai-lam-thay-doi-mo-hinh-kinh-doanh-.html, last visited March 10, 2022. 2 Business to Consumer (B2C) refers to the process of selling products and services directly between a business and consumers who are the end-users of its products or services.
3 eMarketer, “Worldwide ecommerce will approach $5 trillion this year”, https://www.com/content/worldwide-ecommerce-will-approach-5-trillion-this-year, last visited March 10, 2022. 4 Uyen Huong, “Thuong mai dien tu dang dan tro thanh xu huong tat yeu”, http://quangngaitv.vn/tin-tuc- n5375/thuong-mai-dien-tu-dang-dan-tro-thanh-xu-huong-tat-yeu.html, last visited March 10, 2022.D, “Thuong mai dien tu Viet Nam tang nhanh”, https://dangcongsan.vn/kinh-te/thuong-mai-dien-tu-viet-nam- tang-nhanh-578878.html, last visited March 10, 2022. Retail E-commerce Sales Worldwide Forecasts from 2019 to 20246 (trillions, % change, and % of total retail sales) In the context of science and technology constantly developing, worldwide e- commerce transactions in general, and e-commerce transactions in Vietnam in particular, promise to burst and eventually replace traditional forms of commercial transactions. However, along with the impressive growth rate of e-commerce, the reality of IPR infringement on internet retailers is getting more sophisticated and unpredictable.
7 In 2021, the Ministry of Industry and Trade has requested websites and e-commerce platforms to investigate, prohibit and remove 7.725 infringing 6 eMarketer, “Retail Ecommerce Sales Worldwide, 2019-2024”, https://www.com/chart/242908/retail- ecommerce-sales-worldwide-2019-2024-trillions-change-of-total-retail-sales, last visited March 10, 2022. 7 Khanh Vy, “Kho xu li vi pham quyen so huu tri tue trong thuong mai dien tu”, https://cand.vn/Thi- truong/Kho-xu-li-vi-pham-quyen-so-huu-tri-tue-trong-thuong-mai-dien-tu-i430799/, last visited March 10, 2022. 8 In which, in addition to problems such as counterfeit goods, banned goods, smuggling, fraud, infringement of IPR on trademarks in e-commerce is also a concern. To protect the interests of trademark owners and consumers, the issue of IPR infringement on trademarks in e-commerce must be thoroughly researched, analyzed, weaknesses pointed out, and solutions proposed to improve the legal system to meet society’s needs and the situation of regional and global economic integration.
Simultaneously, the duties and responsibilities of subjects engaging in e-commerce transactions for trademark infringement control must be strengthened further to promote a healthy e-commerce growth environment and boost enterprise competitiveness in Vietnam. For the reasons stated above, the author performed research on the topic “Trademark infringement in e-commerce - Regulations of some countries and experience for Vietnam”. Research status of the Topic With the rapid development of science and technology, the online shopping habits of consumers and online business habits of businesses are becoming increasingly varied. s a result, the legal basis to regulate arising issues related to transactions in the network environment has been set forth and has been discussed enthusiastically by local and foreign experts through numerous reports, theses, specialized journals.
However, in this Thesis, the author only mentions a few typical research articles. Based on the criteria of the research object, the author has divided the research works related to this Thesis into the following three groups: First, the research works on the overview of e-commerce, including: 8 Kim Phuong, “Tang cuong quan ly cac giao dich thuong mai dien tu dung quy dinh phap luat”, https://www.vn/phap-luat/tang-cuong-quan-ly-cac-giao-dich-thuong-mai-dien-tu-dung-quy-dinh- phap-luat-76357.html, last visited March 10, 2022. 4 The project “E-commerce and e-business” by the Asia-Pacific Development Information Programme of the United Nations Development Programme (UNDP- APDIP) was launched in 2003 with the goal of assisting readers in understanding the several terminologies, meanings, trends, and issues related to the digital era. The doctoral thesis of jurisprudence by author Le Van Thiep (2016) with the topic “Phap luat thuong mai dien tu o Viet Nam hien nay” [Law on e-commerce in Vietnam today] at the Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences clarified several issues relating to the theory and practice of law governing e- commerce relations.
Since then, the thesis has also made recommendations on specific orientations and solutions to improve the e-commerce law in Vietnam. Second, the research works focus on the protection and enforcement of IPR on trademarks: The master thesis of jurisprudence by author Nguyen Thi Pha (2011) with the topic “Hanh vi xam pham quyen so huu cong nghiep doi voi nhan hieu theo phap luat dan su Viet Nam” [Act of infringement industrial property rights to trademarks according to Vietnamese civil law] at the Faculty of Law, Vietnam National University Hanoi, has clarified a number of theoretical issues about the infringement of industrial property rights to trademarks, evaluated the actual situation of these behaviors and proposed solutions to improve the law. The doctoral thesis of author Ha Thi Nguyet Thu (2017) with the topic “Hoan thien phap luat ve xu ly hanh vi xam pham quyen so huu cong nghiep doi voi nhan hieu o Viet Nam” [Improving the legislation on handling acts of infringement of industrial property rights to trademarks in Vietnam] at Ho Chi Minh National Academy of Politics has studied the theory and practice of dealing with infringements of IRP to domestic and foreign trademarks, while also proposing ideas to enhance the domestic law to meet the realities of social development and international integration demands. 5 Third, there are studies directly related to the infringement of IPR on trademarks in e-commerce.
According to the author’s research, the majority of studies now are on general conduct on infringement of industrial property rights, but small number of studies focus on the infringement of trademarks, particularly acts of infringing against trademark rights in e-commerce. However, there are still studies that address this issue, such as: The master thesis of jurisprudence by author Bui Thi Cam Thach (2020) at University of Law, Hue University on the topic “Phap luat kiem soat hoat dong kinh doanh hang hoa xam pham quyen so huu tri tue doi voi nhan hieu trong thuong mai dien tu” [Law on controlling business activities of goods infringing intellectual property rights on trademarks in e-commerce] has studied the current regulations and proposed solutions to improve the legal framework to control IPR infringement to trademarks on e-commerce platforms. The presentation “Mot so hanh vi su dung nhan hieu moi trong thuong mai dien tu - quy dinh tai mot so quoc gia va de xuat cho Viet Nam” [Some new acts of using trademarks in e-commerce - regulations in some countries and recommendations for Vietnam] by author Phung Thi Yen and Nguyen Thai Ngan at the Scientific Conference with the subject “Legal issues on digital transformation in international trade and business” organized by Faculty of Law, Foreign Trade University on November 8, 2021, has given recommendations for Vietnam in improving the legal regulations on trademarks in the new context. The Purpose, Objects, and Scope of the Research 3.
Research Purpose The topic focuses on studying the current situation of business activities of goods infringing IPR on trademarks in e-commerce, providing an overview of existing regulations on controlling acts of infringing against trademark rights in Vietnam, and the 6 practice of enforcing regulations of leading e-commerce trading platforms in Vietnam. Furthermore, the author conducts research on the legislation of some countries with developed technology and vibrant e-commerce activities in order to learn and make suggestions to improve the outstanding inadequacies in Vietnamese law. Thus, this Thesis conducts research and analysis of the current e-commerce law and at the same time, makes a judgment to evaluate the effectiveness of law enforcement on e-commerce in Vietnam in order to aim at solutions to control business activities of goods infringing IPR on trademarks in e-commerce, while also protecting the interests of trademark owners and buyers when participating in transactions on the e-commerce platforms. Research Objects The primary research object of this topic is the actual status of infringement and legal documents that govern the infringement of IPR on trademarks in e-commerce, including laws on intellectual property, laws on protection of consumers’ rights, laws on competition in the field of intellectual property and other relevant legal documents.