What should rights holders know about enforcing brands on social media platforms in Vietnam?
Legislation and regulations
Even though Vietnamese IP law sets up a comprehensive protection regime to combat trademark infringement and counterfeit goods, there has not yet been a unified framework to handle such infringements on e-commerce and social media platforms.
Relevant regulations may be found scattered across different legislation documents, as detailed in the table below. The scattered regulations overlap and may pose challenges for rights holders in selecting competent authorities and the legal grounds for online enforcement activities.
| Legislation/Regulation | Details |
| Decree No 85/2021/ND-CP on amendments to government's Decree No 52/2013/ND-CP on E-commerce dated 13 May 2013 (Decree 85) | According to Article 36 of Decree 85, e-commerce
service providers have responsibilities to:
|
| Circular 59/2015/TT-BCT prescribing the management of e-commerce activities via applications on mobile equipment (Circular 59) | According to Article 6 of Circular 59, social media network providers are responsible for removing from their applications information on the sale of counterfeit goods, imitated goods, smuggled goods, goods infringing IP rights, and other infringing goods and services when detecting or receiving well-grounded reports on such information. |
| Decree 52/2013/ND-CP on E-commerce(Decree 52) | According to Decree 52, taking advantage of e-commerce to trade in counterfeit goods or IP-infringing goods/services is prohibited. E-commerce platforms are obligated to handle illegal trading acts on their platform in a timely manner upon detection or receipt of reports about such acts. |
| Decree No 72/2013/ND-CP on the Management, Provision and Use of Internet Services and Online Information (Decree 72) | According to Article 5 of Decree 72, it is prohibited to abuse the provision and use of internet services and online information for impersonating other organisations and individuals, and spreading false and untruthful information that infringes the rights and lawful interests of other organisations and individuals. |
| Decree 185/2013/ND-CP on Penalties onAdministrative Violations in Commercial Activities, Production of, Trading in Counterfeitor Banned Goods and Protection of Consumer Rights (Decree 185) | According to Article 83.4a of Decree 185, failure to apply measures against legal violations on platforms upon self-discovery or upon receipt of consumer reports may cause the platforms to suffer a monetary fine of between D30 million and D40 million. |
Enforcement costs
Trademark enforcement on social media platforms is often conducted in parallel with offline enforcement; the ultimate goal is to cease the infringement, and recall and destroy the infringing products, if any.
In a straightforward case, the costs for both online and offline enforcement on social media platform are often associated with:
- regular monitoring and preliminary desktop searches to identify infringers and collect evidence of infringement;
- requesting a bailiff recordal to record evidence of online infringement;
- sending a cease-and-desist letter to request a voluntary cease of infringement; and
- depending on the level of infringement, filing a complaint to the authorities and/or a notice and takedown request to the platforms, requesting action against the infringement.
In more complicated cases, brand owners may also consider direct engagement with the platforms or related government agencies to address concerns and discuss solutions (eg, providing information on the infringers for stronger legal actions or applying technical mechanisms to prevent trademark infringement on the platforms), which will incur additional expenses forlegal consultation.
Court decisions
Currently, there are no court decisions related to brand issues on social networks that could serve as precedent.
Further considerations
Platforms can refuse to release user data unless requested by the authorities due to their obligations under personal data protection regulations. For this reason, one of the biggest obstacles surrounding brand enforcement on social media platforms in Vietnam is tracking down and identifying the real addresses and identities of online infringers. The addresses listed on trader accounts are ostensibly fake and purposefully hidden.
Domestic social media platform you should know in Vietnam
Zalo
Description: According to Statista, Zalo ranked just behind Facebook as
the second most-visited social media platform in Vietnam in 2023.
TikTok and Instagram trailed behind in third and fourth place.
Brand enforcement risk factor: High
Types of infringement risks: Brand impersonation and phishing; scammers may exploit Zalo to falsely present themselvesas famous brands and perpetrate fraud, obtaining personal information or login credentials through phishing schemes. There is also the risk of the sale of counterfeits; numerous counterfeit sellers use Zalo to communicate with buyers – with some even setting up private groups to promote their fake goods. Customers who have received counterfeit products can face almost insurmountable hurdles when attempting to appeal their purchases. Finally, there is also the risk of infringing content; one of the most popular types of trademark infringement observed on Zalo is the use of registered trademarks in Zalo account posts or profile pictures. Brand owners will encounter obstacles in detecting infringing content on Zalo if there is no connection between the brand owner and the infringer.
How to report infringement: Zalo offers a 'Report' function on the app/platform whereby users can report infringing accounts, posts or groups. This covers all types of infringement, including IP infringement. With this function, users can share the infringing content and the reason/argument to the report. A screenshot of the infringing content is also recommended to help Zalo locate the violation faster. The timeframe to settle the report is within seven to 10 days. Through Zalo verified accounts, which are for businesses, celebrities and government agencies, brand owners can send a report to Zalo via email, providing the identity dossiers of the reporter, evidence of IP rights and information of the infringing account.
Challenges of enforcement on this platform: The prevalence of users using anonymous or pseudonymous accounts presents challenges in identifying and holding such users accountable for infringement, which is a common enforcement challenge on Zalo and other social media platforms. Lacking a mechanism to monitor and detect infringement is also an obstacle for brand owners to enforce their rights on Zalo.
Recommendations to brand owners: As Zalo is a combined messaging and social network platform, we cannot scan and monitor Zalo like other social media sites. However, Zalo can be a useful channel to communicate with suspected sellers to obtain more information and evidence of infringement. As a start, we can search for the phone number registered for a specific Zalo account, which is often published on other e-commerce platforms. The next step is to systematically record the infringement activities of the infringer, and open communication channels and cooperate with the platform and local authorities to prepare for stronger legal actions when necessary.
This article was first published by World Trademark Review in May 2024.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.