Clearing the IP stumbling block in Vietnam–U.S. trade

Speaking with Diendan Doanhnghiep (Business Forum Magazine), Ms. Tran Thi Kieu Hoa, Partner at BMVN International – a strategic alliance of Baker McKenzie Vietnam, noted that anti-counterfeiting, border control, and the capability to prove compliance will be top priority issues in the short term.

– Madam, among the IP enforcement concerns raised by the USTR, which ones are likely to have the strongest impact on Vietnam–U.S. trade relations and business operations in the short term?

The USTR highlighted five main groups of concerns in its 2026 Special 301 Report and in its notice initiating the investigation. In the short term, two areas likely to be prioritized by the USTR are widespread anti-counterfeiting and border enforcement.

Conversely, issues like online copyright infringement or unlicensed software, while serious, are often harder to translate immediately into a quantifiable basis for trade measures compared to violations involving import-export goods.

However, the current context has evolved since the USTR announced the investigation. In its official response to the USTR, the Vietnamese Government argued that most of the raised issues reflect challenges during organizational restructuring and enforcement capacity building, rather than a weakening of policy commitments.

At the same time, Vietnam has published an IP Action Plan with specific commitments on combating counterfeit goods, border enforcement, handling digital space infringements, and enhancing criminal investigations. From this perspective, the question for the USTR between now and its final determination will not just be "where Vietnam stands," but rather "whether Vietnam can execute what it has committed to."

For Vietnamese enterprises, the immediate risk is not merely legal exposure in specific cases, but commercial and reputational risk within the supply chain. A single incident involving counterfeit goods, trademark infringement, unauthorized designs, or unlicensed software could lead to goods being detained, importers demanding explanations, supply contract reviews, or the company being cited as an adverse example in the USTR’s policy record. Therefore, IP management in this period should not be viewed purely as a legal matter, but as an integral part of commercial risk management with the U.S. market.

– In your opinion, what policy and enforcement actions should Vietnam prioritize to demonstrate clear progress on IP, thereby alleviating U.S. pressure and reducing the risk of adverse measures on bilateral trade?

Experience from past Special 301 investigations shows that the USTR typically focuses on verifiable enforcement outcomes rather than just recognizing changes in the legal framework. Therefore, between now and the final determination, the most crucial goal for Vietnam is to generate clear, quantifiable, and trackable output results over time.

Priorities should include: demonstrating intensified anti-counterfeiting efforts following the restructuring of enforcement bodies; publishing enforcement data categorized by violation types and channels (especially e-commerce); increasing criminal referrals for severe IP violations; enhancing customs proactivity in detecting and suspending suspicious shipments; and establishing regular collaboration mechanisms between enforcement agencies, rights holders, and digital platforms. These are metrics that the U.S. side can easily observe and verify.

Hai Phong Market Surveillance Department is determined to prevent and curb the spread of counterfeit goods (Photo: Hai Phong Market Surveillance Department)

A positive note is that the Vietnamese Government has publicly shared its action plan with concrete goals—from stepping up violation processing and establishing a national IP enforcement database, to amending the Customs Law and related regulations. To make this plan truly persuasive, Vietnam should prioritize short-term implementation milestones, publicly report progress at an appropriate level, and focus resources on a few high-impact sectors to achieve early wins, rather than spreading resources too thin across too many tasks.

– What should Vietnamese businesses do right now to mitigate their own risks and avoid becoming adverse examples in the USTR's record, Madam?

First, businesses need to audit their entire supply chain from an IP perspective and make IP compliance a standard part of their export risk management framework.

Many companies focus on quality, labor, or environmental standards, but pay little attention to IP risks. Right now, companies should re-check raw materials, designs, logos, molds, labels, packaging, and brand identifiers; maintain records proving authorization to use trademarks, designs, and copyrights; and strictly control subcontractors to manage IP infringement risks. This is especially critical because any shipment detention or complaint in the U.S. market during the investigation period could end up as an adverse case study in the USTR record.

Second, businesses should complete the full licensing of all software used across production, management, and business operations. This is one of the areas companies can address fastest by conducting software inventories, retaining proof of license purchases, preventing unauthorized installations, and incorporating software compliance into internal audit procedures.

Third, enterprises should prepare a compliance dossier for U.S. importers. This should include documentation on raw material origins, authorization rights for trademarks and designs, vendor contracts, IP complaint handling procedures, and response plans if goods are detained or require explanation. Companies that prepare thoroughly now will hold a significant advantage as U.S. importers step up supply chain verification requirements.

In practice, companies can start with a brief checklist: audit currently used trademarks, designs, and software; review contracts with suppliers and subcontractors; retain proof of IP usage rights; assign an internal point of contact for IP complaints; and regularly update compliance dossiers to provide promptly to clients or authorities whenever needed.

– Thank you very much, Madam!