Determination of compensation for damage caused by infringement of intellectual property rights
Determining the level of compensation for damage caused by infringement of intellectual property rights is extremely necessary. Cases of infringement of intellectual property rights; has caused material and spiritual losses to the right holder. So when the owner is infringed, it requires handling such acts; What grounds will the court use; to determine the extent of damage and calculate the amount of compensation? Below is the content of the above issue of Lawyer X:
Legal grounds:
– Civil Code 2015
– Intellectual Property Law 2005 Amendments and Supplements 2019
– Joint Circular No. 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT
For physical damage
Where the plaintiff can prove, there is clear evidence of the infringing material value
In cases where the plaintiff can prove that the act of infringing upon intellectual property rights has caused material damage to him; then have the right to request the Court to decide the compensation level on one of the following grounds:
– Total material damage in monetary terms plus profits earned by the defendant from committing acts of infringing upon intellectual property rights; if the claimant’s reduced profit has not been included in the total physical damage.
+ When determining the profits that the defendant has earned from committing acts of infringement; must take into account the costs incurred by the defendant; to be able to deduct this amount from the defendant’s gross revenue, or determine a portion of the respondent’s profits as revenue from other activities unrelated to the infringement; if any.
+ Then, the total revenue of the defendant is calculated based on all invoices and vouchers for product sale, or use of the work infringes upon the intellectual property rights of the plaintiff; that the defendant did.
+ The court determines the defendant’s profit; after deducting all expenses from the defendant’s gross revenue.
+ Only the profit earned by the defendant from committing acts of infringing upon intellectual property rights to the total monetary damage of the plaintiff; Provided that the plaintiff’s reduced profits have not been included in the total physical damage.
– So, the price for transferring the right to use the intellectual property object with the assumption that the defendant; be transferred by the plaintiff the right to use that object under the contract to use the intellectual property object to the extent corresponding to the infringing act committed. The right transfer price is determined in one of the following ways:
+ Moreover, it is the amount to be paid if the right holder and the infringer of freedom agree; to enter into a contract to transfer the right to use that object of intellectual property right (reasonable royalty fee, license fee). The main act of infringement is the act of using the object of intellectual property rights;
+ Price for transferring the right to use the assumed intellectual property object; determined by the method of determining the amount; to which the obligee (plaintiff) and assignee (defendant); may have agreed at the time of the infringement; if the parties voluntarily agree on such amount;
+ Besides, based on the licensing price of the right to use the intellectual property object applied in the respective field stated in the previous practices of licensing the right to use the intellectual property object.
In case the amount of compensation for damage cannot be determined
In case it is not possible to determine the level of compensation for material damage; then the level of compensation for material damage shall be fixed by the Court; depending on the extent of the damage; the minimum compensation level is not less than five million dongs and the maximum is not more than five hundred million dongs. The court shall only apply the statutory level of compensation in cases where it is impossible to determine the amount of compensation for material damage to the raw materials. application on the grounds mentioned above.
To ensure a reasonable compensation decision, suitable to each specific case; protect the legitimate rights and interests of the victims; The court must base on the nature; the extent of copyright infringement; Specifically related rights are as follows:
– Firstly, circumstances and motives for infringement (infringement by intention; unintentional; by being controlled; or by being physically or mentally dependent; first time trespassing, re-offending);
– Besides, how to commit acts of infringement (individual infringing; organized; self-complete; bribing, deceiving; forcing others to commit infringing acts);
– Territorial scope, time, volume, and scale of committing acts of infringement (in the area of one district of one province; many districts of many different provinces; long or short time; large or small volume); commercial-scale…);
– Then, effects and consequences of the act of infringement (domestic and international influence on the honor, dignity, prestige, and reputation of the right holder; material consequences for the right holder).
For mental damage
In case the plaintiff proves that the act of infringing upon intellectual property rights has caused mental damage to him; then has the right to request the Court to decide the compensation level between five million dongs and fifty million dongs; depending on the extent of the damage.
Note: In addition to two compensation for physical damage and mental damage; intellectual property rights holders have the right to request the Court; force organizations and individuals to commit acts of infringing upon intellectual property rights; must pay reasonable costs to hire a lawyer.
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Frequently asked questions
So, In case the plaintiff proves that the act of infringing upon intellectual property rights has caused mental damage to him; then has the right to request the Court to decide the compensation level between five million dongs and fifty million dongs; depending on the extent of the damage.
In addition to two compensation for physical damage and mental damage; intellectual property rights holders have the right to request the Court; force organizations and individuals to commit acts of infringing upon intellectual property rights; must pay reasonable costs to hire a lawyer.
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