Category Archives: Top News

September 22, 2012

(Reuters) – Apple Inc has asked for a court order for a permanent U.S. sales ban on Samsung Electronics products alleged to have violated its patents along with additional damages of $707 million on top of the billion-dollar verdict won by the iPhone maker last month.

Samsung has responded by asking for a new trial.

The world’s top two smartphone makers are locked in patent battles in 10 countries as they vie for top spot in the lucrative, fast-growing market.

Apple scored a legal victory over Samsung in late August when a U.S. jury found that the Korean firm had copied critical features of the iPhone and awarded the U.S. firm $1.05 billion in damages.

In a motion filed late Friday U.S. time, Apple sought a further $400 million damage award for design infringement by Samsung; $135 million for willful infringement of its utility patents; $121 million in supplemental damages based on Samsung’s product sales not covered in the jury’s deliberation; and $50 million of prejudgment interest on damages through December 31. The requests together come to $707 million.

Apple wants the injunction to cover “any of the infringing products or any other product with a feature or features not more than colorably different from any of the infringing feature or features in any of the Infringing Products.”

Such a wide-ranging sales ban could result in the extension of the injunction to cover Samsung’s brand-new Galaxy S III smartphone.

‘RECTANGLES WITH ROUNDED CORNERS’

Samsung, in a filing to the U.S. court, asked for a new trial to be held.

“The Court’s constraints on trial time, witnesses and exhibits were unprecedented for a patent case of this complexity and magnitude, and prevented Samsung from presenting a full and fair case in response to Apple’s many claims,” Samsung said.

“Samsung therefore respectfully requests that the Court grant a new trial enabling adequate time and even-handed treatment of the parties.”

In a separate statement, Samsung lamented the fact that patent rulings should cover issues such as the shape of the product in addition to technological points.

“It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies,” it said.

The Korean firm earlier this week said it plans to add Apple’s new iPhone 5 to the existing U.S. patent lawsuits, stepping up its legal challenge as the two companies seek to assert rights to key technologies.

Apple said it wanted the court to award it damages that reflect “a rational and fair effort to address Samsung’s willful misconduct that has and will impose lasting harm on Apple.”

The Korean firm was the world’s top smartphone maker in the second quarter of this year, shipping more than 50 million phones, nearly double Apple’s 26 million iPhone shipments.

Both companies are raising their marketing spending to promote their latest products ahead of the year-end shopping season.

(Reporting by Miyoung Kim and Sung-won Shim; Editing by Hugh Lawson)

By Lu Lam Uyen

July 9, 2012

Advertising laws and regulations are constantly trying to balance the freedom of sales promotion for companies, an expression of free trade, in harmony with consumer protection and the general public interests.

Advertising law is founded on the recognition of the freedom of trade promotion for businesses. This law intends to develop business activities and the economy in general. Therefore, a certain form of advertisement will be strictly prohibited if it reaches a limit where the benefits of competitors, consumers and the community are affected. This limit can be explicit in some cases, but ambiguous in others. That is why policy makers should be alert, but also consistent with efforts to facilitate the freedom of advertising at the highest level.

Comparative advertising used to be controversial issue in Europe, the cradle of world trade law. In the 70’s, the question of whether or not comparative advertising should be banned had been a matter of much debate to the lawmakers in these developed countries. They reasoned that the comparison itself could pose potential risks of unfairness. During this period of time, except in the UK, the U.S. and a few Scandinavian countries, comparative advertising was not allowed in other developed countries.

However, with the development of the commercial law, the issue was given thorough consideration on the ground of expanding the right of access to information for consumers, freedom of advertising and freedom of speech for companies, and the common interest of the business environment. Accordingly, comparative advertising was seen as necessary, because it provides consumers with more information on product quality and value, so they can make better purchasing decisions. In addition, comparative advertising, if carried out in a fair and truthful manner, promotes market transparency, stimulates competition among goods and service providers for the benefit of consumers, and therefore helps the economy develop,

Therefore, in 1997, Europe officially made comparative advertising legal, on the condition that the comparison is made for goods and services of the same type, and the information provided is fair, truthful, verifiable, not misleading, and without discrediting or taking advantage of competitors’ reputation (Definition of Comparative Advertising – Prof. Peter Miskolczi Bodnar – University of Miskolc).

In Vietnam, comparative advertising is regulated by the Competition Law of 2005, in which companies are not allowed to use direct comparisons for advertising their goods and services. Thus, lawmakers have chosen a safe path by strictly prohibiting comparative advertising, rather than assessing its values in order to protect the freedom of companies. On the other hand, other forms of advertisement where direct comparisons might not be used but contain information harmful to competitors have been ignored, like in the case of Acecook vs. Masan. The Competition Authority refused to take the case, starting that Masan’s ad did not have direct comparisons, although they admitted that the ad did discredit and unfairly attack its competitor.

The case of Rolls Royce vs. Mazda (Japan) is a good example of taking unfair advantage of a competitor’s reputation. Rolls Royce had sued Mazda for featuring one of its products as “The family’s new Rolls” in an advertising campaign, and a Swedish court had ruled in favor of Rolls Royce (the EC Directive on Comparative Advertising and its Implementation in the Nordic Countries: Especially in Relation to Intellectual Property – Ulf Bernitz – Stockholm Institute for Scandinavian Law (1957  – 2009). Unfortunately, in Vietnam, such cases cannot be settled under the Competition Law.

The draft Law on Advertising has defined various forms of comparative advertising in more detail than the Competition Law. In fact, regulations on comparative advertising can be governed by the Competition Law (Laws on Advertising to comply with international standards – Prof. Dr. Nguyen Van Nam), but while waiting for the Competition Law to be modified, the Advertising Law can offer a better framework for comparative advertising.

However, the draft Law on Advertising, like the Competition Law, fails to provide a definition of comparative advertising. Comparative advertising, as defined by the EU, is “any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor” (Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC). The lack of such a definition would make the advertising law incomprehensive in covering a wide variety of negative forms of comparative advertising in the marketplace, and at the same time, it can hamper the freedom of business promotion for companies by prohibiting any advertising that does not give a comparable correlation.

This is possible because of the prohibition from using words and terms such as “the most”, “the only one,” “the best” and “number one” or those with similar implications. The usage of these words and terms does not denote any comparison, and in common practice, overstatement can be accepted.

The Advertising Act is an important part of commercial law. Of all the unfair competition cases settled by the Competition Administration Agency in 2011, 34 of 36 cases involve negative advertising practice (2011 Annual Report – Competition Authority). It is obvious that the development and promulgation of the advertising law is crucial, especially in the context of the current international integration of Vietnam.

“The Business Law is attractive when it can balance interests” (Law Lesson: Recognizing and Constructing Justice – Dr. Pham Duy Nghia) and it is still an issue of much debate to make this possible with comparative advertising.

[1] Faculty of Law, HCMC University of Economics

June 21, 2012

SYDNEY: Apple was today fined A$2.25 million (US$2.29 million) for misleading Australian consumers about the local 4G capability of its next-generation iPad, in a case brought by regulators.

The tech giant was also ordered to pay A$300,000 in costs by the Federal Court in a case brought by regulators, who said the penalty sent a message to global companies that there were consequences for breaching the law.

Justice Mordy Bromberg found that Apple misled people with claims in its advertising implying that the “iPad with WiFi + 4G” could connect with fourth generation cellular networks in Australia, when it could not.

The judgment found the company engaged in conduct liable to mislead the public and contravened Australian consumer law.

“The conduct concerned was deliberate and very serious”, Bromberg said.

The Australian Competition and Consumer Commission (ACCC), which initiated the proceedings, said it was delighted with the outcome.

“The $2.25 million penalty reflects the seriousness of a company the size of Apple refusing to change its advertising when it has been put on notice that it is likely to be misleading consumers,” chairman Rod Sims said.

“This decision should act as a renewed warning that the ACCC will continue to take action against traders who take risks in their advertising, regardless of their size.”

Apple had offered in March to refund Australian customers who felt they had been misled, and publish a clarification about the popular tablet’s capabilities.

The product is now advertised outside North America as “Wi-Fi + Cellular” – a change that came into effect on May 12 – with a clear caveat on its Australian site that “it is not compatible with current Australian 4G LTE and WiMax networks.”

“Apple does not seek to deny the deliberateness of its conduct and there are no facts before me which seek to excuse or explain the conduct, other than that the conduct occurred at the behest of Apple’s parent company,” Bromberg said.

The iPad was the world’s best-selling tablet in the first three months of 2012, outgunning its Android-powered rivals, with sales more than doubling from a year earlier to send Apple’s profits soaring.

The iPad’s 4G capabilities are supported by some networks in the USD and Canada.

Matthew Rimmer, an expert in intellectual property at the Australian Nation University, said Apple had been “careless.”

“It shows some of the dangers involved in overhyping products and sets a very important precedent,” he said, adding that other countries would take not of the outcome.

Asked if it could open the floodgates to similar law suits elsewhere, he said: “It all depends on the nature of consumer regulations in each country.”

Earlier this month, Apple agreed to settle the case with the ACCC.

But Bromberg delayed an official ruling until he had details on how many iPads had been sold and were returned under the refund offer and further information on Apple’s financial position.

He said yesterday the risk of contravening Australian consumer law would have been “reasonably obvious” to Apple. – AFP

June 12, 2012

Sydney – Apple agreed yesterday to a A$2.25 million (US$2.22 million) fine for misleading Australian customers about the local 4G capability of its next-generation iPad, in a case brought by regulators.

The Australian Competition and Consumer Commission (ACCC) told the Federal Court that the US tech giant had agreed to the penalty for implying in advertising that the 4G function on its latest iPad worked in Australia.

Apple offered in March to refund Australian customers who felt they had been misled by the “iPad with WiFi + 4G” promotion and publish a clarification about the popular tablet’s capabilities after the ACCC took it to court.

Though the iPad’s 4G function only works on networks in the United States and Canada it had been widely promoted as one of the tablet’s features globally, which the ACCC said amounted to false advertising.

It is now advertised outside North America as “Wi-Fi + Cellular”, with a clear caveat on its Australian site that “it is not compatible with current Australian 4G LTE networks and WiMax networks.”

The matter was due to go to a full trial this week but ACCC lawyer Colin Golvan said Apple had agreed to pay the Aus$2.25 million fine and the commission’s legal costs as part of an out-of-court settlement.

It is half the maximum A$4.4 million fine open to the ACCC in the case.

Apple described it as “more than adequate having regard to the conduct and all the other circumstances” and stressed that the concessions made in the case were only applicable in Australia.

The “iPad + 4G” promotion was in place for two months worldwide including major technology-mad cities in Asia.

Golvan said the “substantial” penalty would send a strong message to the booming smart-phone and tablet industry that “such conduct will not be condoned”, according to a report of the hearing in The Australian newspaper.

But judge Mordecai Bromberg refused to make an official court order until he had the details of how many iPads had been sold and were returned under the refund offer, along with information about the extent of the 4G advertising.

“The parties put forward proposed settlement and consent orders, however His Honour requested further information to be provided for the consideration of the court, which will happen next week,” an ACCC spokesman told AFP.

Apple agreed to provide a confidential brief to the judge by June 13, with a final decision on the penalty and settlement of the case to be handed down at a later date. – AFP

June 07, 2012

By Nguyen Tan

Disputes arose after a product image on the website of a company had been used for advertisement by its rival. Legal experts thought it was an act of unfair competition while the Department of Competition Management ruled that there was not sufficient evidence to conclude a violation.

Tien Tien Engineering-Construction-Trading Company (Tien Tien Co.) is a manufacturer and installer of steel buildings. In 2011, after discovering that two images of its products were used by Viet-My Industrial Company (Viet My Co.), a rival in the steel building industry, Tien Tien Company sent a letter to Viet My Co.,  requesting the latter to remove the images from its website, and Viet My did so. After that, however, Viet My continued using dozens of other Tien Tien’s images for the advertisement of the company’s products on its website.

Naturally, after seeing that this was unfair and possibly violating copywrite infringement law, Tien Tien took their case to the Department of Competition Management. After preliminary investigations, the agency suspended the investigation on the grounds of “insufficient evidence to conclude a violation of the Competition Law.” Tien Tien then appealed this decision. In its official response to Tien Tien, the Department of Competition Management on one hand confirmed Viet-My’s action as “non-violation,” but on the other hand reckoned that Viet-My’s action was not under its settlement authority. It suggested that Tien Tien “should contact other relevant authorities, i.e. journalism, publishing, information and media, intellectual property, advertisement and trading, for guidance.”

Unhealthy competition?

Vu Thi Ngoc Van, Head of the Trading Division of Tien Tien Co., said the images used on Viet-My’s website were pictures of Tien Tien products and construction works which were all taken by Tien Tien, and could be verified by its clients. Some of its works were An Bien Hospital, Ninh Thuan police office building, and a police training center.

Meanwhile, speaking to the Saigon Times, Nguyen Manh Thanh, general director of Viet-My Co., said that if Tien Tien wanted to have these images exclusive, they should have registered with the authorities. This was something the Department of Competition Management failed to clarify in its settlement.

Nevertheless, the exclusiveness of the images is not the dispute. The legal basis for Tien Tien’s complaint against Viet-My are articles 40 and 45 of the Competition Law on the prohibition of two unhealthy competition behaviours, i.e. “misleading information” and “advertisement leading to unfair competition.” According to Ngoc Van, the usage of the images has made a lot of Tien Tien’s customers confused. “For example, our toilet product is priced at VND29 million, but with this product’s image, Viet-My offers just VND23.8 million. Our customers are wondering why Viet-My offers a low price for the same product, and they do not know its product and ours are different,” explained Ngoc Van.

Most legal experts agree that the above act is one of unfair competition. However, it will be controversial to invoke articles 40 and 45 in this case. According to Dr. Nguyen Van Nam, a lawyer, it is good to cite either article. Unfortunately, Article 40 is not explicit enough, and there has not been any guidance from the Government yet. Also according to Dr. Nam, prohibition on “advertisement leading to unfair competition” under Article 40 does not make sense not comply with international practice. “Deceptive and misleading advertising is obviously an act of unfair competition and should be banned. Therefore, “advertisement leading to unfair competition” is unnecessary. It can be argued that “I make an advertisement to sell my product, not for any other purposes”, explained Dr. Nam.

Dr. Nguyen Anh Tuan of LCT Lawyers reckons this is misleading advertising, in violation of Article 45 of the Competition Law. Citing Article 40 is not appropriate because this article is limited within the scope of intellectual property.

Le Quang Vu, a lawyer from the Law Office for the Poor, shares the same opinion. He said that if a company uses images and designs of another company’s products on its own website for advertising purpose, it has deliberately misled information to customers, and can be deemed as “advertisement leading to unfair competition under Clause 3, Article 45 of the Competition Law.” Vu considered the Department of Competition Management’s decision unsatisfactory. Tien Tien Co. may appeal to the Ministry of Industry and Trade.

March 20, 2012

Tan Duc

The gas retail price has surged by up to 44% since last February. Meanwhile, the import price has only inched up by 28%, and the dong-dollar exchange rate in this period has not changed much. Therefore, it cannot be confirmed that the gas price increase is inevitable as price authorities asserted on March 1.

The gas retail price has surged by up to 44% since last February. Meanwhile, the import price has only inched up by 28%, and the dong-dollar exchange rate in this period has not changed much. Therefore, it cannot be confirmed that the gas price increase is inevitable as price authorities asserted on March 1.
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By Michael Mudd*

December 12, 2011

“There is an opportunity for Vietnam to increase exports to the US – to seize this opportunity and encourage companies to make sure they are in compliance with the UCA”

Usually when a law has a title like ‘The Unfair Competition Act’, (UCA) most exporters from Vietnam are uncomfortable. When that comes from the United States, a major trading partner, they shudder.

On April 4, 2011, the Washington State legislature passed a bill making it a violation of the state’s unfair competition laws for any business to sell products in Washington “while using stolen or misappropriated information technology in its business operations.”
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August 10, 2011
SEOUL/SAN FRANCISCO: Apple Inc scored a big victory in its patent infringement battle against Samsung Electronics after a German court temporarily barred the Korean firm from selling its flagship Galaxy tablet in the European Union except the Netherlands.
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August 06, 2011

VietNamNet Bridge – The Ministry of Culture, Sports and Tourism has drafted Law on Advertising to regulate and protect the nation’s fine traditions and customs, while simplifying administrative procedures, said Deputy Minister Hoang Huu Ai.

The current regulations on advertising have become outdated in the rapid socio – economic development, according to the ministry.
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Google publicly accuses Apple, Microsoft, Oracle of patent bullying

August 03, 2011

Get out the fire extinguishers, because the patent fight between the tech titans is heating up. On Wednesday, Google publicly accused Apple and Microsoft of banding together to take down Android, using their winnings from recent Novell and Nortel patent auctions as ammunition.

In a post to the Official Google Blog, Google Senior Vice President and Chief Legal Officer David Drummond said that Apple, Microsoft, Oracle, and others have waged “a hostile, organized campaign against Android” by snapping up patents from Novell and Nortel and asking Google for high licensing fees for every Android device. According to Drummond, the companies in question are attempting to “make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Mobile; and even suing Barnes & Noble, HTC, Motorola, and Samsung.”
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