On 24 September 2026, the Council of Judges of the Supreme People’s Court of Vietnam approved three precedents relating to intellectual property (“IP”).

This is a significant and first-of-its-kind development in Vietnam’s IP jurisprudence. Although Vietnam is not a common law jurisdiction, judicial precedents play an increasingly important role in its legal framework. A precedent is a court judgment or decision whose legal reasoning is selected by the Council of Judges and officially published by the Chief Justice of the Supreme People’s Court for reference in future cases. Courts at all levels are required to study and apply such precedents in cases involving analogous legal facts to ensure similar cases are resolved consistently, and where a court declines to apply a relevant precedent, it must state its reasons in the judgment or decision. Given the growing volume and complexity of IP disputes, the approval of these three precedents suggests a greater emphasis on judicial guidance in this area and may pave the way for further IP precedents.

Although the official texts of the approved precedents have not yet been published, their substantive direction is reflected in the draft precedents considered at the plenary meeting.

Overview

The approved precedents address several issues that have repeatedly arisen in IP enforcement and litigation in Vietnam. According to the Court’s public announcement, the approved precedents concern:

• The basis for determining damages caused by copyright infringement of computer software, as referenced in the Appellate Judgement No. 07/2023/KDTM-PT dated 10 March 2023.
• The burden of proving copyright where contrary evidence exists in a dispute, as referenced in the Appellate Judgement No. 66/2023/KDTM-PT dated 27 June 2023The determination of the criminal offence of infringing industrial property rights, as referenced in the First-instance Judgement No. 04/2026/HS-ST dated 12 January 2026.

If the final texts follow the substance of the draft precedents, they should provide useful judicial guidance on matters that have not always been applied consistently in practice and may contribute to greater predictability in future disputes.

1. Damages Assessment in Software Copyright Infringement Cases

The software copyright precedent takes a practical approach to damages compensation for unauthorised software copying or use.

• Accordingly, where the copyright owner can substantiate actual software licence transactions in Vietnam, the court may rely on the licence fee in a comparable and latest transaction before the infringement, as a basis for determining damages.
• Under the current legal framework, claimants generally must prove actual loss and a direct causal link to the infringement. This can be difficult in software disputes where lost sales are not quantifiable, or the scope and duration of unauthorised use are contested.
• The precedent should provide a more workable and consistent basis for damages quantification in software cases by relying on actual market transactions rather than case-by-case valuation exercise.

In terms of practical implications, rights holders may wish to ensure that records capable of supporting damages claims are maintained in an organised and court-usable form, including:

• software licence agreements;
• invoices and payment records;
• pricing schedules applicable in Vietnam;
• records showing the scope of granted licence vs. infringing use, such as number of users/installations/devices.

2. Copyright Registration and Burden of Proof Where Contrary Evidence Exists

The draft precedent arises from a dispute in which the defendant held a copyright registration certificate for a musical work, including its lyrics, while the claimant alleged that the lyrics reproduced a poem that the claimant had created and published earlier. The significance of the draft lies in its confirmation that the court should not rely on the registration certificate alone, but must assess the underlying evidence of creation and publication when authorship is substantively challenged.

Therefore, while a copyright registration certificate remains important prima facie evidence of copyright, it is not conclusive where another party produces credible contrary evidence. In such cases, the court must examine the competing evidence, and the certificate holder must prove the basis of its claimed authorship or ownership.

This precedent is important in disputes involving competing claims to authorship, derivative or adapted works, or works involving multiple contributors, especially when Vietnam copyright registration process is simplified and disregards substantive examinations. Rights holders should continue to regard copyright registration as a valuable evidentiary tool, but not as a substitute for underlying evidence of creation and ownership. It would be advisable to preserve:

• dated drafts and source materials;
• publication records;
• employment, commissioning and assignment documents;
• records identifying contributors and the timing of creation;
• chain-of-title documents, especially where rights have passed through multiple entities.

In addition to copyright title disputes, the draft precedent also addresses recovery of legal fees in copyright litigation, although it’s unclear whether this remains in the final text:

• The draft indicates that legal fees may be recoverable where they are actually incurred, reasonable in amount and connected to the protection of the claimant’s lawful rights and interests.

It also suggests that the court may accept a contractual fee arrangement under which payment becomes due after recovery, provided the agreement is properly documented and the amount claimed is reasonable in light of the nature and complexity of the case.

3. Criminal Liability for Infringing Industrial Property Rights

The precedent concerning criminal liability relates to the offence of infringing industrial property rights under Article 226 of the Criminal Code:

• Based on the draft precedent, the court recognised that the intentional trading of goods bearing signs identical or confusingly similar to protected trade marks, without the consent of the trade mark owner, may constitute the criminal offence of infringing industrial property rights where the statutory conditions are satisfied.
• If retained in the final text, the precedent would provide judicial guidance on the application of Article 226 in trade mark counterfeiting cases.
• We note that Article 226 is under consideration for amendment under the on-going Criminal Code amendment project. The final scope and practical effect of the precedent will therefore need to be assessed in that broader legislative context.

Key Takeaways

Pending publication of the official texts, the drafts indicate the following practical points:

• Software owners should retain licence transaction records to support damages claims;
• Copyright owners should preserve evidence of authorship and ownership, not just registration;
• Reasonable, documented legal fees are more likely be to be recoverable;
• Rights holders should monitor publication of the official precedents to support and enhance their enforcement and evidentiary strategies as needed.

Conclusion

The approval of these three precedents marks an important development in Vietnam’s judicial treatment of IP disputes. While the official texts are still awaited, the draft precedents signal a more practical and structured approach to recurring issues in IP litigation.

We will continue to monitor publication of the final precedent texts and assess their implications for IP rights protection and dispute strategy in Vietnam.

Authors: Yen Vu, Huy Nguyen, Uyen Doan, Hong Phuc Vu

TAGS

• Vietnam
• Copyright
• Software
• Criminal Liability