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Brainstorming Session No.8 August 16, 2006
Honda Vietnam's legal team was invited to present the current situation of industrial property violation on Honda products. Traders and manufacturers of low quality motorbikes usually apply fake decors similar to originals. There are many types of violation including overall design, copied parts, and illegal use of brand name or patented invention. Infringement can occur in manufacturing, transporting and sales. Honda motorbikes are most popular targets of counterfeits and fakes. However, reliable time-series data is hard to obtain since violators are far more numerous than official raids.
According to Honda’s recent investigation, motorbike dealers that sell fake Honda products are found in great numbers all over Vietnam except some northwest mountain areas. It is estimated that about 250,000 fake Honda motorcycles were sold in Vietnam in the first half of 2006. Police and market watchdogs in Vietnam are restraining the trade and transportation of fake motorbikes to protect users’ and producers’ rights. In the first six months of this year, 2,542 fake Honda motorcycles were seized by the authorities. “Old Wave” model copies are most popular (94%). The authorities destroyed plastic parts, front covers, mud shield and other exteriors. However, average fine for each fake motorbike is small (about 160,000VND) and does not penalize violators significantly.
It is very difficult for law enforcement authorities to find in-house fake production lines since manufacturers and traders usually assemble copies in secret places outside their main factories. They only put naked motorbikes without exterior plastics in their factories to avoid persecution. In addition, violating companies often produce visibly different models from the ones they register. Since photo verification is not required, they produce Honda copies which violate industrial property after registering different models.
Honda's measures against industrial property violation included (i) market investigation and taking photos, (ii) training courses for law enforcement officials to improve their knowledge and recognition of violating vehicles, (iii) producing evidence and bringing violators to law authorities, and (iv) PR campaign through TV and magazines, and exhibitions comparing originals and copies.
Participants discussed several issues. First, the meaning and significance of industrial design protection was explained. To stimulate human creativity, exterior design of motorbikes, and their parts, must be protected. Vietnam's National Office for Intellectual Property (NOIP) previously did not allow "double protection" for both overall design and parts, and allowed only overall design to be protected. This made the punishment of copy part producers impossible. However, NOIP switched to double protection two years ago.
A question was raised regarding what concretely constituted industrial property violation, including the possibility of quantifying the criteria. Imitation of an industrial design that produces similar overall impression is considered a violation, even if minor changes are made. However, “similarity” is difficult to define quantitatively. The verdict must rely on experts' judgment on the "visual effect of impression" on a case-by-case basis. In Vietnam, it will take time to develop judgment capability and accumulate cases.
The new law on intellectual property was also explained. Under the old law, enforcement of intellectual property rights remained weak, violations were rampant, and punishment was light. The new law to correct these shortcomings came into effect on July 1, 2006, partly to fulfill requirements of WTO accession. However, implementation decision has not been issued and actual application is pending. But when it is implemented, law enforcement and penalty are expected to be strengthened. [Ngo Duc Anh] |