Vietnam is truly a land of opportunity for domestic and foreign e-commerce companies1 because of its digitally savvy young population, high Internet penetration rate (ranked 14th in the world2 ) and rising smartphone penetration rates. According to surveys carried out by the Vietnam E-Commerce Association (“VECOM”), the growth rate of ecommerce reached over 32% in 20193 . 2019’s scale of e-commercial retail sales and consumer services was around 11.5 billion USD4 . The Southeast Asia E-commerce Report in 2019 by Google, Temasek and Bain&Company also predicts that the Compound Annual Growth Rate from 2015 to 2025 will reach 29%. By that time, the scale of Vietnam’s e-commerce will reach USD$43 billion, ranking the third in ASEAN5 . Over the last four years, approximately US$1 billion in funding has been invested into Vietnam’s e-commerce sector, reaching a record high in 2019. The period 2018-2019 also witnessed the emergence of Vietnam-origin ecommerce players, such as Tiki, Thegioididong and Sendo, which are among the most successful e-commerce platforms in the region6 . In 2019, Shopee raised to become the market leader with monthly traffic of over 40.7 million, dramatically increasing by 71% compared to its performance in 20187 . E-commerce has become much more popular, and a frequent shopping channel of a large number of customers, especially the 9X generation clients in Ha Noi and Ho Chi Minh City8 . Despite accounting for only 18% of the population, in 2019, Ha Noi and Ho Chi Minh City contributed more than 70% of the total e-commerce transactions of the whole country9 . B2C E-commerce in Vietnam i
• E-commerce trading floor • Online auction website • Online promotion website E-commerce trading floor (“E-commerce platforms”) carries the majority of E-commerce activities in Vietnam with the four major players: Shopee, Tiki, Lazada and Sendo. Vietnamese consumers are shopping online through two other means: social media platforms and mobile apps. While social media platforms are quite popular among Vietnamese consumers, mobile commerce is still an emerging trend11. The most popular social media platforms in Vietnam are Facebook, Zalo, Tiktok and Instagram. Facebook is also one of the popular channels for online shopping, especially for small retailers due to lower requirements of technical capacity12. However, E-commerce platforms are still the most popular online shopping channel among Vietnamese consumers (91 percent) compared to 43 percent who shop on social networks13. Top 10 most e-commerce websites in first six months of 202014
Shopee Mall offers an exclusive marketplace for official shops, i.e. brand owners and authorised distributors, to sell authentic and quality products. It offers a wide range of products and a competitive refund policy to consumers. Some well-known Korean brands are listed in the most favorite brands category, including Innisfree, Samsung, LOULOU, Lock & Lock, LG and KOKOFit. 1.2.2 Lazada Similarly, LazMall in Lazada is an exclusive platform for brand owners and authorised distributors to offer a wide range of authentic and quality products directly to consumers. Korean brands are quite popular on this platform, including Lotte Mart in the department store section, Lock & Lock in the household goods section, Laneige and Innisfree in the care and beauty section, and Samsung in the mobile phone sectio
IP Policies of major online shopping platforms in Vietnam The shopping platforms mostly follow the regulations of the Government and Ministry of Industry and Trade on e-commerce, including prohibition in trading IPR-infringing goods of the platforms’ users and the responsibilities of the online platforms in dealing with IPR-infringing goods offered for sale on the platforms. Decree 52/2013/ND-CP on E-commerce (Decree 52) sets out that: – • It is prohibited to take advantage of e-commerce to trade in counterfeit goods or IPR-infringing goods/services. • The e-commerce platform has the obligation to timely handle illegal trading acts on such platform upon detection or receipt of reports about such act. 2.1 Shopee Shopee does not have a specific IP policy. IP related rules are set out in its several policies, including: – • Operation Regulations: https://shopee.vn/docs/5259; • Terms of Service: https://shopee.vn/docs/3602; • Policy on Prohibited and Restricted Products: https://shopee.vn/docs/3604 Definition of IPR-infringing goods In its Operation Regulations, Shopee defines IPR-infringing goods as “lookalike, counterfeit, pirated copies of a product or item that may infringe the intellectual property rights of any third parties”15. According to Policy on Prohibited and Restricted Products, one of the prohibited products on Shopee is “copyrighted infringing items16”, which are lookalike, counterfeit, pirated copies of a product or item that may infringe copyright, trademark rights or other IPR of third parties. Shopee refers to Article 3.8 of Decree 185/2013/ND-CP17 for lookalike and counterfeit products which include, among others, IPR-infringing products in accordance to Article 213 of IP Law (i.e. trademark counterfeit, geography indication counterfeit and pirated goods) on its answer to Frequent Asked Questions regarding the removal of posts on lookalike and counterfeit products.
Obligation of platform users Shopee’s Operation Regulations set out that the platform prohibits the sale of IPR-infringing goods18 and acts of advertising that violate the IP regulations19. Sellers must comply with laws on IPR protection when conducting trading acts on the platform20. Shopee’s Terms of Service further set out the obligation for the platform users, in which they shall not provide goods infringing copyright, trademark or other IPR of third parties; or use the platform’s service to infringe other parties’ IPR21. The platform’s actions against IPR-infringing acts on its websites/app It is stated on the Operation Regulations that Shopee has the responsibility to timely handle the illegal trading acts on the platform when such acts are discovered or the platform receives complaints on such acts; […] remove from the website/app information on the sale of counterfeit, lookalike, smuggled goods, IPR-infringing goods and other illegal goods/services when the platform discovers or receives grounded complaints on such information22. By agreeing with Shopee’s Terms of Service, the users also accept that Shopee has the right to remove any information when it receives complaint on IPR infringement or other legal request to remove such information23. Takedown request from IPR holder IPR holders and their authorised representatives could send a complaint form provided by Shopee with corresponding documents informing Shopee of the IPR infringement for its handling24. Please refer to Section III Part 2 for more detail on the takedown procedure. 2.2 Tiki Policy on IPR Tiki has its Policy on IPR that applies for its staff and sellers on the platforms. The policy sets out types of IPR, including copyright and related rights, trademark rights, industrial designs, patents; infringing acts against these IPR and acts of unfair competition; rights and obligations of Tiki and the sellers on IPR matters. The Policy can be accessed through this link: https://hocvien.tiki.vn/faq/chinh-sach-so-huu-tri-tue/. Types of IPR and infringing acts Most of the rules regarding types of IPR (definition and right establishment) and infringing acts in the Policy on IPR is in accordance with regulations in IP Law and other relevant guiding legal documents. A few notable discrepancies between Tiki’s Policy on IPR and the State’s regulations regarding IPR are:–
Tiki’s Policy on IPR IP Law Work protected under copyright Books, magazines, videos, photographs, and musical work. A wider range of work to be protected under copyright is stipulated under Article 14 IP Law. Grounds of trademark rights Trademark registration granted by Vietnam Trademark Office (IP Vietnam), or Certificate of international trademark registration issued by IP Vietnam, or Decision to grant protection of international trademark registration issued by IP Vietnam in conjunction with a copy of publication of such decision on WIPO’s gazette. Well-known trademark is not mentioned. Trademark rights shall be granted on the basis of decisions on granting protection issued by competent authorities; or on the basis of recognition of international registration granted in accordance with international agreement to which Vietnam is a signatory. Rights of well-known trademarks shall be granted based on their use instead of registration. Infringing act against copyright and related rights The use of work without permission of the author or copyright/related right owner If a work contains photos of a person, the use of such work must be permitted by that person as well. Specific acts infringing copyrights are set out under Article 28 of IP Law, including but not limited to unauthorised use, reproduction, distribution, and communication of the copyrighted work. The above discrepancies do not necessarily mean that the sellers on Tiki would only abide by this Policy and not the State’s regulations regarding IPR. Tiki states that this Policy aims to provide the users with basic rules on IPR and potential infringing acts that could occur on the platforms. The Policy combines and simplifies the State’s regulations related to IPR and relevant unfair competition acts so that the sellers can have an overall understanding on IPR and avoid any possible infringing acts when doing business on the platform. If the sellers conduct infringing acts set out in the Policy, they would be subjected to Tiki’s policy of handling. The sellers themselves would bear any legal ramifications that may arise from their infringing acts, whether such acts are stipulated in the Policy or not. Obligation of platform users According to Tiki’s Operation Regulations, it is forbidden to conduct acts of advertising that violate IP related laws. The sellers must trade in genuine products, and avoid selling
Sanctions against IPR-infringing acts on Tiki Details of Tiki’s sanctions for IPR infringing acts are set out in its policy on types of violations and corresponding sanctions (Sanction Policy), which can be accessed through this link https://hocvien.tiki.vn/faq/quy-tac-danhcho-nha-ban-hang-cac-noi-dung-vi-pham-va-hinh-thuc-xu-li-vi-pham/. Rules related to IPR in the Sanction Policy are as follows – No Violation First time Second time Third time 1 Unauthorised use of trademarks protected in Vietnam for the store/account information (store name, logo, banner, etc) Request for change A fine of VND500,000 (approx. KRW 25,572); and Temporary account blocking Permanent account deletion 2 Act of trading in counterfeit, lookalike, used or refurbished products Counterfeit includes – Counterfeit in quality/use value Counterfeit in labels and packaging Trademark counterfeit Pirated copy of copyrighted work Compensation of 111% of the product value to customers A fine of VND10,000,000 per product (approx. KRW 511,459) Deduction from the Security Deposit25 Permanent deletion of product link and store account N/A N/A 3 Products made upon unauthorised use of patent or industrial design protected in Vietnam Permanent deletion of infringing product link or all product links of the same brand Deduction from the Security Deposit N/A N/A Takedown request from IPR holder There are no specific rules on Tiki for IPR holders to file a complaint against IPR-infringing acts. However, Tiki states on its Policy on IPR that “Tiki will not handle any complaint on products if the claimant could not provide sufficient evidence on its IPRs”, which suggests that Tiki is open for handling complaints on IPRs from the IPR holders. Therefore, it is advisable to request Tiki to take down infringing listings as a first step to deal with infringement.
2.3 Sendo Sendo does not have a specific IP policy. IP related rules are set out in its several policies, including: – • Operation Regulations: https://www.sendo.vn/quy-che-hoat-dong/; • Product Control Policy and its annexes: https://ban.sendo.vn/chinh-sach-nguoi-ban/36-3-quy-dinhkiem-duyet; • Complaint Policy: https://ban.sendo.vn/chinh-sach-nguoi-ban/40-7-quy-dinh-ve-khieu-nai/120-quydinh-khieu-nai-ve-hinh-anh-va-thuong-hieu; • Violation Handling Policy: https://ban.sendo.vn/chinh-sach-nguoi-ban/45-8-che-tai-xu-ly-vi-pham. Definition of IPR-infringing goods According to Sendo’s Product Control Policy, IPR-infringing goods are lookalike, counterfeit, pirated copies of a product or item that may infringe copyright, trademark rights or other IPR of third parties. Obligation of platform users According to Sendo’s Product Control Policy, it is prohibited to advertise IPR-infringing products. Any infringing acts in this regard shall be subjected to Sendo’s handling. The platform’s actions against IPR-infringing acts on its websites/app It is set out in Sendo’s Violation Handling Policy that depending on the scope of infringements, Sendo may apply sanctions to the sellers conducting acts of trading in prohibited products (including IPR-infringing ones) as follows: – • Warning: verbal/written warning is served via phone calls/email; • Temporary account blocking: accounts of infringing sellers are temporarily blocked for 3 days (Level 1 Sanction) or 7 days (Level 2 Sanction) depending on the scope of infringements; • Account deletion (Level 3 Sanction): seller accounts are deleted and non-recoverable. In addition to the above sanction, Sendo will remove the links to prohibited products. Details of sanctions against IPR-infringing acts covered by Sendo’s Violation Handling Policy are set out in the table below.
