On June 12, 2018, Vietnam passed a new Law on Competition that will take effect on July 1, 2019, replacing the Law on Competition of 2004. The new law brings about several changes affecting intellectual property. Notably, it eliminates many of the discrepancies between the current 2004 Competition Law and the Intellectual Property Law in dealing with IP-related unfair competition.
Acts of Unfair Competition
A weakness of the 2004 Competition Law and its subordinate regulations (such as Decree No. 71/2014/ND-CP) is that they overlap with provisions on competition found in other laws. For example, both the 2004 Competition Law and the IP Law have provisions concerning acts of cybersquatting, the use of misleading trade indications, and the unauthorized use of a trademark by an agent, and both provide that the infringement of trade secrets is an act of unfair competition. This has led to confusion for law enforcement agencies and rights holders as to which enforcement mechanisms should be employed in taking action against unfair competition relating to IP.
The new Competition Law no longer sets out acts of unfair competition that are already covered by the IP Law. Instead, the new law expressly states that when there are discrepancies between the Competition Law and the related unfair competition provisions of another law, the provisions of the other law will prevail. This will be a big step toward clarifying who will enforce the laws on unfair competition in practice. When the new Competition Law takes force, rights holders can rely solely on the IP Law.
Secrets in Business
The new Competition Law seems to introduce a new statutory term, “secrets in business” (bí mật trong kinh doanh). The new law considers infringement of these “secrets in business” to amount to unfair competition, but it does not define this term. The term is similar to the statutory term “trade secret” (bí mật kinh doanh) defined in the IP Law. However, given the principle that the new law does not repeat acts of unfair competition provided in other laws, it is uncertain whether the term “secrets in business” has an equivalent meaning to “trade secret” in the IP Law, or is something entirely new. As a matter of practice, the government will roll out decrees to guide the implementation of new laws. In these decrees, the government should clarify the meaning of this term.