Thứ Sáu, 7 tháng 12, 2018

The Regulations on Mediation in the Draft of Law on Mediation, and Dialogue in Vietnam

BY Mèo juna IN , , No comments


Over the past few years, the civil cases or administrative claims have been increasing on quantity as well as complex nature. There are opinions that, in reality, while Western countries choose negotiation or mediation as the first measure of dispute settlement, court is favored in Vietnam as main measure of dispute resolutionin Vietnam. Theoretically, Vietnam legal system shows that the regulations on mediation, dialogue have been relatively formulated during the judicial reform process. To address the gap in reality, there are recent changes in regulations encouraging parties to use mediation and dialogue as dispute resolution. Recently, the Draft Law on Mediation, Dialogue at the Court has been published since 01 October 2018 for public opinions.
In order to implement mediation and dialogue at court, the Chief Justice of People’s Supreme Court issues the decision on establishing Mediation and Dialogue Center including Director, Deputy Director(s), Mediators. The Director is the head of Center appointed by one of two following measures: (1) the Chief Justice of the Court in the locality where the Center is located assigns the Judge to act according to the rotational regime; or (2) the Mediators elect among themselves. Human resources are mobilized to appoint Mediators selected from the followings: (1) retired Judges, Procurators, Investigators and other retired judicial officials; (2) Retired junior or senior officials; (3) Experts and other professionals with at least 10 years of experience in its work; and (4) Person with high prestige in society and satisfying the following standards:
– Being a Vietnamese citizen, residing in Vietnam, loyal to the Fatherland and the Constitution of the Socialist Republic of Vietnam, having good moral qualities, having strong political will and prestige in the community, honest, objective;
– Having good health to ensure the fulfillment of the assigned tasks;
– Having experience and capacity for mediation and dialogue;
– Volunteer for mediation, dialogue settlement.
In the situation of tight state budget and overload of work at Court, the mobilization of human resources not belonging to the State but meeting certain criteria for being Mediators is one of the necessary requirements to ensure the success of this regulation.
Scope of Court Annexed Mediation and Dialogue in Vietnam
Scope of mediation and dialogue under the provision of this Draft shall be applicable to civil and administrative disputes; request for recognition of voluntary divorces, child custody agreement, division of property upon divorce within the jurisdiction of the Court according to the provisions of the Civil Procedure Code, Law on Administrative Procedures or civil, administrative dispute requested by one or more parties to the Court annexed mediation and dialogue for settlement.
The Procedures for Court Annexed Mediation and Dialogue in Vietnam
Upon receipt of the lawsuit petition, petition for recognition of voluntary divorces, child custody agreement, division of property upon divorce as provided in Article 190 of the Civil Procedure Code, Article 119 of the Law on Administrative Procedures, the Court shall forward the petition, request and the documents and evidences enclosed to the court annexed Mediation and Dialogue Center when satisfying the following conditions: (1) The case falls under the jurisdiction of the Court; (2) The claimant, the defendant do not refuse the mediation or dialogue before the court accepts the case; and (3) The case shall not fall into the case which must not be mediated under the provisions of the Civil Procedure Code or which dialogues cannot be held under the Law on Administrative Procedures.

According to the prevailing laws, there are two types of conciliation: pre-litigation conciliation and conciliation in litigation proceedings. The conciliation process under Civil Procedure Code, Law on Administrative Procedures shall not be governed by the Law on Mediation and Dialogue. Therefore, mediation under this draft law is in the form of optional pre-litigation mediation.
Recognition and Enforcement of Court Annexed Mediation Settlement in Vietnam
After mediation or dialogue, the parties can request the Court to recognize the successful mediation or dialogue settlement. The decision to recognize or to not recognize a successful out-of-Court mediation result shall immediately take effect and shall not be appealed against according to appellate procedures (Item 8 of Article 419 of the Civil Procedure Code 2015), but can be protested according to cassation or reopening procedures under the provisions of the Civil Procedure Code. This provision is also recorded in the Draft of Law on Mediation, Dialogue. Out-of-court mediation results are recognized by the court and will be enforced by civil judgment enforcement agencies under law on enforcement.

From the international experience and the reality of Vietnam, the effective implementation of the mechanism of mediation and dialogue has great significance for the settlement of civil and administrative disputes, promotes consensus in society; reduces the number of cases workload, the demand to bring to trial; facilitates the Court to focus resources to further improve the quality of the trial.
Pilot Project of Court Annexed Mediation in Vietnam
Through the pilot project under decision No. 332/QD-TANDTC dated Mar 9th, 2018, Official letter No. 48/TANDTC-PC dated Mar 9th, 2018, and Official letter No. 72/72/TANDTC-PC dated Apr 16th, 2018 the Mediation and Dialogue Center in Hai Phong has received more than 2,500 petition and brought to mediation, dialogue nearly 2,400 applications. The project has been expanded to Hanoi, Ho Chi Minh City, Da Nang, Bac Ninh, Khanh Hoa, Long An. The results and experience of the project will be an important basis for the drafting of the Law on Mediation and Dialogue.
Tuan Nguyen, Esq., CEDR Accredited Mediator







Thứ Ba, 4 tháng 12, 2018

How do you trademark a word that you made up?

BY Mèo juna No comments


The requirements to register a trademark are:

That the mark be used to describe a service, product, business. That it be used as a brand.
That the item being named by the trademark is in business or currently available to purchase. That is, that it is currently used “in trade”.


That your application describe the product or business sufficiently that the trademark office can assign it to a specific class of business (e.g. apparel). Trademarks only limit use by other businesses within that class of business. Apple Plumbing does not have to worry about being sued by Apple, who are in the class of electronic goods and computer software (among others).

I suspect what you are really trying to do is prevent anyone else from using this word that you made up. A word that has a specific definition in English and an intended use when communicating.

Trademark (and copyright, for that matter) are not at all interested in limiting the ability of people to communicate. Words, names, punctuation, symbols/letters/numbers are all without protection, free for anyone to use in normal communication. The trademark of “Apple” clearly doesn’t prohibit me from discussing the fruit that makes a delicious pie or strudel. It only prohibits me from using it to describe my own product or business which competes with Apple’s existing products or business.


Thứ Hai, 3 tháng 12, 2018

Why do copyrights last so long?

BY Mèo juna No comments


I strongly recommend that interested parties read this full article on Wikipedia covering copyright law and its evolution: History of copyright law

The good old House of Lords in England made the call in the mid 1700's that both Public Domain and statue-defined Copyright existed. France and the US were also grappling with how to promote, protect and ultimately share with the public any works. Remember, before this only a specific publisher in London would forever be the one with the right to print Shakespeare; a right under attack by devilish Scottish printers (how dare they!)



Now that the terms were subject to legislation, a moderate term of 14 years (with an extension of 14 more possible if the author was still alive) secured a limited monopoly that was intended to hold the author through to the end of his days and secure a reasonable inheritance for one's children. Not at all unexpected in societies that had Land Owners who derived profit by renting their land to use by farmers, workers or industry. (Read some Adam Smith if you want to hear more about how Rent is a fundamental element in economic understanding at the time.)


A hundred years later and we have internationalization of the scheme being defined in treaty. In the Berne Convention, signatories were all agreeing to Lifetime-plus-fifty-years as the new minimum term.

How did we get that jump? Again, the publishers constantly push things back toward their original conception of perpetual copyright. These expansions always cite the author's need, but benefit the business to an equal or greater amount. And terms have been pushed farther and farther out over the decades. Partially because it turns out there is big business in making sequels and derivative works.

Literature has turned from being primarily a means of disseminating information and turned into an entertainment venue where the public is voracious for new-but-familiar content. (Amusingly, this does not hold true for music, which falls completely out of public favor in about 40-50 years. Yet the RIAA is one of the fiercest fighters of copyright protections.)

Content publishers now fear that someone will make a better version of James Bond's Casino Royale if they are given the chance to make their own derivatives. And they are probably right. But that's not the best justification for 110-year-long copyright terms just so we can protect Mickey Mouse's first movie.



Thứ Năm, 29 tháng 11, 2018

Are eBooks protected by copyright?

BY Mèo juna IN , , , No comments


Copyright, with regard to e-books, is a legal means of protecting them from being freely redistributed or unfairly used.

In the days of the Berne Convention, when copyright was initially introduced, books were printed, material products.


Though today, books take on a whole new life with electronic formats, readers, and platforms, the copyright laws that protect a writer’s work from being stolen, shared, and re-sold still apply to e-books.

Nonetheless, with the rise of digital piracy, e-book copyright law has been notoriously difficult to implement in a way that deters people from unfair use of copyrighted material. This is especially the case for self-publishing authors, who neither have the funds or resources to pursue legal cases.

If you want to protect your e-books, you need security that is specific to their “digital” nature.

Digital rights management solutions (DRM) are the industry-standard tools to use if you want to implement e-book protection.

There are 3 main types of protection solutions that can be used to secure your e-books and deter piracy. They include:

Expiring Download Links

Expiring download links allow you to send your e-books for download by customers, with the link expiring after a certain number of uses, or a specified time period.

Watermarking

Watermark technology protects your e-books by imprinting visible or invisible watermarks containing your customer’s personal information on their pages.

Adobe DRM Encryption

This is the industry-standard solution used by major publishers. It enables you to set different permissions for copying, printing, and accessing your e-books. Adobe DRM encryption is the most secure way to protect your e-books.

I recently wrote a blog post for the EditionGuard blog, EditionLink vs EditionMark vs Adobe DRM: Choosing The Right eBook Fulfillment Option, which explains in more detail how to select the right type of DRM protection for your e-books. Check it out to see which one is right for you.



Thứ Tư, 28 tháng 11, 2018

How do I trademark and copyright my logo and wordmark?

BY Mèo juna No comments


Henry Thoreau once said: "It's not what you look at that matters, it's what you see." So let's clarify some terms and definitions first, to make sure we are on the same page here and that you see the same things I see.



When speaking about "logos" and "word marks", it is important to realize that those terms are not interchangeable, from a trademark attorney's perspective. There is a clear legal distinction. By definition, a “word mark” includes words only. If a mark includes some graphical/design elements instead of, or in addition to, words, then a trademark attorney would refer to such a mark as a “design mark” or a “logo”.

So if you have two separate trademarks (one of which is a word mark and another is a logo/design) then those would be two separate trademark applications. That applies even if the logo incorporates the same wording that you use separately as a word mark. Assuming both the logo and the word mark are used for exactly the same goods/services, then, yes, you would claim the same International Class(es) in both applications.

If a design mark / logo crosses a certain originality threshold, then it can also be eligible for copyright protection. The threshold is not overly high, but it does exist. If you merely apply some minor stylization to your word mark (e.g., the words appear in an unusual font) or your mark consists of a simple geometrical shape (e.g. a circle) with some words inside, then there might not be enough originality there to claim copyright protection. On the other hand, if a logo incorporates a drawing of animals, objects, people, etc., then it will be much more likely that the originality threshold has been crossed, and copyright protection will automatically attach to the logo as of the date it was created. There is a maze of rules as to which logos are copyrightable and which are not, but I think you got the overall picture.

As to word marks, generally they cannot be copyrighted, but like with everything in life, there are exceptions. But that is a separate long story.

A copyright owner is not required to obtain a copyright registration for his/her work (since copyright protection is automatic), but it is a very good idea to get a formal copyright registration as that provides significant benefits (i.e., public record of ownership, which can negate certain defenses an infringer might have, access to federal courts, a certain level of protection against importation of counterfeit products, etc.)

Related post: 


Thứ Ba, 27 tháng 11, 2018

Vietnam Ratifies the Comprehensive and Progressive Agreement for Trans-Pacific Partnership

BY Mèo juna No comments


Vietnam has recently ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership – CPTPP (before Trans-Pacific Strategic Economic Partnership Agreement – TPP. This Agreement was signed on 08 March 2018 in Santiago, Chile including 11 countries New Zealand, Canada, Japan, Mexico, Singapore, Brunei, Chile, Malaysia, Peru, Australia and Vietnam.
TPP was initially expected to form a largest free trade area in the world with the participation of the United States of America (USA). Nonetheless, the President of USA – Mr. Donald Trump – withdrew USA from TPP, and the remaining members have to re-negotiate and establish CPTPP as a result. Eleven countries participating in the CPTP have total GDP of USD 10,000 billion equivalent to 13.5% of global GDP.
CPTPP will contribute to boost the export of goods to major markets such as Japan, Australia, Canada and Mexico as well as attract foreign investment into the sectors that Vietnam needs to be developed. Further, this participation has established trade relations with the countries which have never signed a free trade agreement with Vietnam before such as Canada, Mexico or Peru. One of the commitments of CPTPP, the members of CPTPP agree to eliminate import duties on almost all products within 7 years, and Vietnam is flexible up to 10 years. Joining CPTPP, Vietnam not only commits to open up markets, remove tariff barriers, continue to open and facilitate trade, but also continues to show the transparency of the State management on market’s development. The business lines being benefited directly and strongly from CPTPP are garment, textile, footwear, food manufacturing, drink, confectionaries, tobacco, …which is expected to receive investment from oversea through setting up factory, company and business joint venture inVietnam.
Further, CPTPP regulates the new legal issues being labour, environment, government procurement, Intellectual Property, state enterprises, …The CPTPP essentially retains the provisions of the TPP Agreement, but with the USA withdrawal, it allows Member States to reserve a number of articles to ensure the balance in the new situation.
In conclusion, Vietnamese enterprises should firstly keep up the commitments of CPTPP in order to seek up the favorable policy trends and to prepare the plans to build competitiveness and enhance the prestige on brand and product quality.








Thứ Hai, 26 tháng 11, 2018

What is the difference between a trademark and a wordmark?

BY Mèo juna IN , , , , No comments


We have established that a wordmark is a logo, but not every logo is a wordmark.
A wordmark or logotype is usually a distinct text-only typographic treatment of the name of a company, institution, or product name used for purposes of identification and branding.
A trademark on the other hand can be a recognizable sign, design, or expression which identifies products or services of a particular source from those of others.

The number one difference between logos and wordmarks is that wordmarks are text-based logos. These types of logos are completely devoid of extra pictures, meaning that logos such as Pepsi and MasterCard are not wordmarks, since these logos contain images as well. You can probably think of several examples of wordmarks off the top of your head, but some of the most famous are FedEx, Coca-Cola and even world-famous Google. These are all examples of highly successful and easily recognizable wordmarks that are easily identified with around the world.

Why would someone use wordmarks over something like a pictorial graphic?
It ties into the fact that they are a more direct type of branding. When you provide just a picture, such as Joomla's logo, you have to have faith that a person can learn the association between a picture and a name and service, keeping them separate from other pictorial logos. Imagine if all of our favorite brands and companies were only identified by a simple graphic. We would have hundreds or even thousands of these little pictures to remember. Trying to keep them straight would become very confusing!

When providing a wordmark, such as Google, you provide a name while still providing a recognizable image for the viewer. Wordmarks are becoming the standard when it comes to designing logos, as it has been observed by some studies that they are more effective than their pictorial counterparts are.

A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and TrademarkOffice. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled “Basic Facts about Trademarks”.