In practice, intellectual property (IP) enforcement in Vietnam does not always call for “going hard” through administrative actions or litigation as the optimal option. For many businesses, the most important objectives are to stop the infringement quickly, minimize losses, control communications, and avoid an escalated dispute that consumes time and costs. In that context, negotiation and cease-and-desist letters are a “soft” enforcement method, especially where the infringer is clearly identifiable, has assets and/or business operations in Vietnam, and remains amenable to negotiation rather than confrontation.
1) What is a cease-and-desist letter, and what role does it play in an enforcement strategy?
A cease-and-desist letter (i.e., a letter demanding cessation of infringement) is a written notice sent by the rights holder (or its legal counsel) to an alleged infringer, requiring the recipient to stop the infringing conduct, remove infringing content, recall and/or destroy infringing goods, and/or provide a non-infringement undertaking, together with a warning that stronger legal measures may be pursued if the recipient fails to comply.
In practice, a cease-and-desist letter serves three main purposes:
- A rapid cessation tool: many “small-scale” infringements or inadvertent infringements cease immediately once the recipient receives a serious, well-grounded letter.
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A record-building tool: it demonstrates the rights holder’s good faith and supports subsequent steps (administrative action and/or litigation) if the recipient continues to infringe.
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A negotiation tool: it can open the door to a settlement—such as rebranding, adjusting advertising, or even entering into a license arrangement (where appropriate).
2) When should a cease-and-desist approach be prioritized, and when should it not?
2.1. A cease-and-desist letter is typically most suitable where:
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The target is clearly identifiable: there is a legal entity/address/contact person;
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The infringement can be stopped immediately: by taking down content, changing labels, modifying packaging, or changing the name of a store/shop account;
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The infringement is not yet “serious” or organized: e.g., a small retailer using a trademark in advertising, or an online shop posting official images while selling goods of unclear origin;
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The business wants to control communications: avoiding “noise” that could backfire;
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A commercial solution is desired: transferring a domain name, handing over a fanpage, dealing with existing inventory, or settling payables/receivables in the context of a distribution/agency relationship.
2.2. In many situations, a cease-and-desist letter can be counterproductive:
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Organized counterfeiting/organized infringement: sending the letter too early may prompt the target to move inventory, relocate warehouses, change payment accounts, or erase traces;
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Where “catching them in the act” is needed: if the strategy is administrative and/or criminal enforcement, evidence collection often needs to be prioritized first;
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Repeat offenders: another warning letter often wastes time;
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Foreign or hard-to-identify targets: sending a letter may have little practical effect while revealing your strategy.
In short, a cease-and-desist letter is a good opening move when you need quick cessation and there is room for negotiation; for professional counterfeiters, it is typically not the first tool to use.
3) Before sending the letter: five things businesses should prepare
For a letter to have real practical impact, businesses should prepare at least the following five sets of information:
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Rights basis: trademark/design registrations; copyright evidence; license/authorization documents if the sender is not the direct owner.
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Evidence of infringement: links/listings, timestamped screenshots, videos, product samples (if any), invoices/receipts/test purchases.
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Risk assessment: is this accidental or intentional? what is the scale? are there warehouses/store chains involved?
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Your objectives: do you only need immediate cessation, or also damages/recall of goods/a commercial resolution?
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Escalation plan: if the recipient does not comply, what is the next step (administrative action, litigation, etc.)? Be ready to act so you are not left “reactive” after sending the letter.
4) Basic structure of a cease-and-desist letter
(i) Introduction and authority to act: identify the rights holder, the protected rights, and the basis of representation (if any).
(ii) Summary of the infringement: specify what sign/content is being used, where (location/URL), when it was identified, and the scope.
(iii) Legal basis: keep it brief—state the principle that using identical/similar confusing signs, copying content, or unauthorized commercial exploitation constitutes IP infringement.
(iv) Clear remedial demands with a specific deadline for cessation and corrective actions.
(v) Response mechanism and an invitation to negotiate: provide a contact point, response timeline, and a “pathway” to resolve the matter in good faith.
(vi) Warning of next steps: state that if the recipient fails to comply, the rights holder may consider other legal measures (administrative action/court proceedings), while avoiding excessively threatening language.
5) Negotiation techniques to achieve “real-world outcomes”
A common mistake is focusing only on “takedown” and “apology.” In many cases, objectives should be designed in three tiers:
- Immediate cessation: remove content, change names, stop keyword advertising.
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Reduce the risk of recurrence: a non-repetition undertaking and a mechanism for consequences in case of repeat infringement (e.g., agreed damages in a settlement, subject to what is permissible and how it is drafted).
- Eliminate root causes: address remaining inventory, identify the supply source, and control dealers/agents.
In negotiations, businesses should propose conditional options:
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If the infringer cooperates quickly: resolve amicably and limit the scope.
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If the infringer delays or refuses to cooperate: escalate to stronger steps.
6) Settlement agreements: what clauses should be included?
If the parties reach a settlement, it should include at least:
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Confirmation of the rights holder’s rights and the scope of prohibited use;
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Takedown/cessation obligations and completion deadlines;
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Inventory handling mechanism (recall, destruction, relabeling, transfer without branding, etc.);
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Non-repetition undertaking plus enforcement/penalty mechanism for repeat violations;
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Confidentiality and communications (who may say what, and when);
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Reimbursement of reasonable costs (if any) and payment method;
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Governing law and dispute resolution (typically court or arbitration depending on the nature of the matter).
Conclusion
Negotiation and cease-and-desist letters can be an effective IP enforcement tool in Vietnam when used at the right time and with the right strategy. Where businesses need quick cessation, communications control, and cost efficiency, a well-prepared letter may deliver tangible results without escalating the dispute. Conversely, in cases involving organized counterfeiting or targets likely to dissipate evidence, a cease-and-desist approach can backfire if deployed too early. The key is therefore to standardize evidence first, define clear objectives, craft specific demands, and be ready with an escalation plan.
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