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NATIONAL ASSEMBLY
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SOCIALIST REPUBLIC
OF VIET NAM
Independence - Freedom - Happiness
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No. 50/2005/QH11
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Hanoi, November 29,
2005
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LAW
ON
INTELLECTUAL PROPERTY
National Assembly of
the Socialist Republic of Vietnam Legislature XI, Session 8
(From 18 October until 29 November 2005)
Pursuant to the 1992 Constitution of the
Socialist Republic of Vietnam as amended by Resolution 51/2001/QH10 passed by
Legislature X of the National Assembly at its 10th Session on 25 December 2001;
This Law regulates intellectual property.
PART I
GENERAL
PROVISIONS
Article 1. Governing
scope
This Law regulates copyright, copyright
related rights, industrial property rights and rights to plant varieties; and
the protection of such rights.
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This Law shall apply to Vietnamese
organizations and individuals and to foreign organizations and individuals who
satisfy the conditions stipulated in this Law and in any international treaty
of which the Socialist Republic of Vietnam is a member.
Article 3. Subject
matter of intellectual property rights
1. The subject matter of copyright shall
comprise literary, artistic and scientific works; the subject matter of
copyright related rights shall comprise performances, audio and visual
fixation, broadcasts and satellite signals carrying coded programmes.
2. The subject matter of industrial property
rights shall comprise inventions, industrial designs, designs of
semi-conducting closed circuits, trade secrets, marks, trade names and
geographical indications.
3. The subject matter of rights to plant
varieties shall comprise plant varieties and reproductive materials.
Article 4.
Interpretation of terms
In this Law, the following terms shall be
construed as follows:
1. Intellectual property rights means rights
of an organization or individual to intellectual assets comprising copyright and
copyright related rights, industrial property rights and rights to plant
varieties.
2. Copyright means rights of an organization
or individual to works which such organization or individual created or owns.
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4. Industrial property rights means rights
of an organization or individual to inventions, industrial designs, designs of semi-conducting
closed circuits, trade secrets, marks, trade names and geographical indications
which such organization or individual created or owns, and the right to prevent
unfair competition.
5. Rights to plant varieties means
rights of an organization or individual to new plant varieties which such
organization or individual has selected and created, discovered and developed,
or which they own.
6. Intellectual property right holder
means an owner of intellectual property rights or an organization or individual
to whom intellectual property rights are assigned by the owner.
7. Work means a creation of the mind
in the literary, artistic or scientific sector, expressed in any mode or form.
8. Derivative work means a work
translated from one language into another; or an adapted, modified,
transformed, compiled, annotated or selected work.
9. Published work, audio and visual
fixation means a work or audio and visual fixation which has been published
with the permission of the copyright holder or related right holder in order to
distribute it to the public in a reasonable amount of copies.
10. Reproduction means the making of one
or more copies of a work, audio and visual fixation by whatever mode or in whatever
form, including permanent or provisional backup of the work in electronic form.
11. Broadcasting means the transmission
of sound or image or both sound and image of a work, performance, audio and visual
fixation or broadcast to the public by wireless or landline means including
satellite transmission, in such a way that the public may access such work from
any place and time the public selects.
12. Invention means a technical solution
in the form of a product or process which is intended to solve a problem by
application of natural laws.
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14. Semiconductor integrated circuit means
a product in its intermediate or final form in which the elements, at least one
of which is an active element, and some or all of the interconnections, are
integrally formed in or on a piece of semiconductor material and which is intended
to perform an electronic function. Integrated circuit is synonymous with IC,
chip and micro-electronic circuit.
15. Design of semi-conducting closed
circuits (hereinafter referred to as layout design) means a three dimensional
disposition of circuit elements and their interconnections in a semi-conducting
closed circuit.
16. Mark means any sign used to
distinguish goods or services of different organizations or individuals.
17. Collective mark means a mark used
to distinguish goods or services of members of an organization which is the
owner of such mark from marks of non-members of such organization.
18. Certification mark means a mark
which is authorized by its owner to be used by another organization or
individual on the latter's goods or services in order to certify the origin,
raw materials, materials, mode of manufacture of goods or manner of provision
of services, and the quality, accuracy, safety or other characteristic of goods
or services bearing such mark.
19. Integrated marks means identical
or similar marks registered by the same entity and intended for use on products
or services which are of the same, similar or interrelated type.
20. Well known mark means a mark
widely known by consumers throughout the territory of Vietnam.
21. Trade name means the designation of
an organization or individual used in business activities in order to
distinguish the business entity bearing such trade name from other business
entities in the same business sector and area.
Business area as stipulated in this clause
means the geographical area in which a business entity has its partners,
customers or reputation.
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23. Trade secret means information
obtained from activities of financial or intellectual investment, which has not
yet been disclosed and which is able to be used in business.
24. Plant variety means a plant
grouping within a single botanical taxon of the lowest known rank, which is
morphologically uniform and suitable for being propagated unchanged, and can be
defined by the expression of phenotypes resulting from a genotype or a combination
of given genotypes, and distinguished from any other plant grouping by the
expression of at least one inheritable phenotype.
25. Protection title means a document granted
by the competent State body to an organization or individual in order to establish
industrial property rights to an invention, industrial design, layout design,
mark or geographical indication; or in order to establish rights to a plant
variety.
Article 5.
Application of laws
1. The provisions of the Civil Code shall
apply to intellectual property related civil matters which are not regulated by
this Law.
2. Where there are any differences between
the provisions on intellectual property in this Law and the provisions in other
laws, the provisions in this Law shall apply.
3. Where an international treaty of which the
Socialist Republic of Vietnam is a member contains provisions different from
those in this Law, such international treaty shall apply.
Article 6. Grounds
for the generation and establishment of intellectual property rights
1. Copyright shall arise at the moment a work
is created and fixed in a certain material form, irrespective of its content,
quality, form, mode and language and irrespective of whether or not such work
has been published or registered.
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3. Industrial property rights shall be
established as follows:
(a) Industrial property rights to an
invention, industrial design, layout design, mark or geographical indication
shall be established on the basis of a decision of the competent State body to
grant a protection title in accordance with the registration procedures
stipulated in this Law or the recognition of international registration
pursuant to an international treaty of which the Socialist Republic of Vietnam
is a member. In the case of a well known mark, industrial property rights shall
be established on the basis of use and shall not be dependent on registration
procedures;
(b) Industrial property rights to a trade
name shall be established on the basis of lawful use thereof;
(c) Industrial property rights to a trade
secret shall be established on the basis of lawful acquirement of the trade
secret and maintaining confidentiality thereof;
(d) The right to prevent unfair competition
shall be established on the basis of competitive activities in business.
4. Rights to a plant variety shall be
established on the basis of a decision of the competent State body to grant a
plant variety protection title in accordance with the registration procedures
stipulated in this Law.
Article 7.
Limitations on intellectual property rights
1. Intellectual property right holders shall
only be permitted to exercise their rights within the scope and term of
protection provided for in this Law.
2. The exercise of intellectual property
rights must not infringe the interests of the State, the public interest or the
legitimate rights and interests of other organizations and individuals, and
must not breach other relevant provisions of law.
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Article 8. Policies
of the State on intellectual property
1. To recognize and protect intellectual
property rights of organizations and individuals on the basis of harmonizing
the interests of intellectual property right holders and the public interest;
not to protect intellectual property objects which are contrary to social
ethics and public order or which harm national defence and security.
2. To encourage and promote activities of
creation and utilization of intellectual assets aimed at contributing to
socio-economic development and improving the people's material and spiritual
life.
3. To provide financial support for the
receipt and use of transferred intellectual property rights servicing the
public interest; to encourage Vietnamese and foreign organizations and
individuals to provide financial aid for creative activities and for the
protection of intellectual property rights.
4. To prioritize investment in training and
fostering senior officials, public servants and other relevant subjects engaged
in the work of protecting intellectual property rights and to prioritize
research into and application of science and techniques for the protection of
intellectual property rights.
Article 9. Right and
responsibility of organizations and individuals in the protection of
intellectual property rights
Organizations and individuals shall have the
right to themselves take measures permitted by law to protect their
intellectual property rights, and shall be obliged to respect the intellectual
property rights of other organizations and individuals in accordance with the
provisions of this Law and other relevant laws.
Article 10. Contents
of State administration of intellectual property
1. Formulating and directing the
implementation of strategies and policies on protection of intellectual
property rights.
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3. Organizing an administrative apparatus for
intellectual property; training and fostering staff to administer intellectual
property.
4. Granting and carrying out other procedures
related to registered copyright certificates, registered related rights
certificates, protection titles for industrial property objects and plant
variety protection titles.
5. Inspecting and examining compliance with
the law on intellectual property; settling complaints and denunciations, and
dealing with breaches of the law on intellectual property.
6. Organizing information and statistics on
intellectual property.
7. Organizing and administering intellectual
property assessment activities.
8. Educating, and communicating and
disseminating knowledge about intellectual property and the law on intellectual
property.
9. Conducting international co-operation on
intellectual property.
Article 11.
Responsibility for State administration of intellectual property
1. The Government shall exercise uniform
State administration of intellectual property.
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The Ministry of Culture and Information
shall, within the scope of its duties and powers, carry out State administration
of copyright and related rights.
The Ministry of Agriculture and Rural
Development shall, within the scope of its duties and powers, carry out State
administration of rights to plant varieties.
3. Ministries and ministerial equivalent
bodies shall, within the scope of their respective duties and powers,
co-ordinate with the Ministry of Science and Technology, the Ministry of
Culture and Information and the Ministry of Agriculture and Rural Development
to carry out State administration of industrial property.
4. People's committees at all levels shall,
within the scope of their authority, carry out State administration of
industrial property within their respective localities.
5. The Government shall provide specific
regulations on the powers and responsibilities for State administration of
industrial property of the Ministry of Science and Technology, the Ministry of
Culture and Information, the Ministry of Agriculture and Rural Development
Science and of people's committees at all levels.
Article 12. intellectual
property fees and charges
Organizations and individuals shall be required
to pay fees and charges when carrying out procedures related to intellectual
property rights in accordance with the provisions of this Law and other related
laws.
PART II
COPYRIGHT
AND RELATED RIGHTS
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CONDITIONS
FOR PROTECTION OF COPYRIGHT AND RELATED RIGHTS
Section 1. CONDITIONS
FOR PROTECTION OF COPYRIGHT
Article 13. Authors
and copyright holders with works which are protected by copyright
1. Organizations and individuals with works
which are protected by copyright comprise persons who directly create such
works and copyright holders stipulated in articles 37 to 42 inclusive of this
Law.
2. Authors and copyright holders stipulated
in clause 1 of this article shall comprise Vietnamese organizations and
individuals; foreign organizations and individuals with works published for the
first time in Vietnam and not yet published in any other country, or with works
also published in Vietnam within thirty days after publication for the first
time in another country; and foreign organizations and individuals with works
which are protected in Vietnam pursuant to an international treaty on copyright
of which the Socialist Republic of Vietnam is a member.
Article 14. Types of
works which are protected by copyright
1. Literary, artistic and scientific works
which are protected by copyright comprise:
(a) Literary works, scientific works,
textbooks, teaching courses and other works expressed in written language or
other characters;
(b) Lectures, addresses and other speeches;
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(d) Musical works;
(dd) Stage works;
(e) Cinematographic works and works created
by a process analogous to cinematography (hereinafter all referred to as
cinematographic works);
(g) Plastic art works and applied art works;
(h) Photographic works;
(i) Architectural works;
(k) Sketches, plans, maps and drawings
related to topography or scientific works;
(l) Folklore and folk art works;
(m) Computer programs and data collections.
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3. Protected works as stipulated in clauses 1
and 2 of this article must be created personally by authors through their
intellectual labour and without copying the works of others.
4. The Government shall provide detailed
guidelines on the types of works stipulated in clause 1 of this article.
Article 15. Subject
matter outside the category of copyright protection
1. News of the day as mere items of
information.
2. Legal instruments, administrative and
other documents in the judicial domain, and official translations of such
documents.
3. Processes, systems, operational methods,
concepts, principles and data.
Section 2. CONDITIONS
FOR PROTECTION OF RELATED RIGHTS
Article 16.
Organizations and individuals eligible for protection of related rights
1. Actors and actresses, singers,
instrumentalists, dancers and other persons who perform literary and artistic
works (hereinafter all referred to as performers).
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3. Organizations and individuals who fix for
the first time the sounds and images of performances or other sounds and images
(hereinafter all referred to as producers of audio and visual fixation).
4. Organizations which initiate and carry out
broadcasting (hereinafter referred to as broadcasting organizations).
Article 17. Subject
matter of related rights eligible for protection
1. Performances shall be protected if they
fall into one of the following categories:
(a) They are made by Vietnamese citizens in
Vietnam or abroad;
(b) They are made by foreigners in Vietnam;
(c) They are fixed on audio and visual
fixation and protected pursuant to the provisions of article 30 of this Law;
(d) They have not yet been fixed on audio
and visual fixation but have already been broadcast and are protected pursuant
to the provisions of article 31 of this Law;
(dd) They are protected pursuant to an international
treaty of which the Socialist Republic of Vietnam is a member.
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(a) It belongs to audio and visual fixation
producers bearing Vietnamese nationality;
(b) It belongs to audio and visual fixation
producers protected pursuant to an international treaty of which the Socialist
Republic of Vietnam is a member.
3. Broadcasts and satellite signals carrying
coded programmes shall be protected if they fall into one of the following
categories:
(a) They belong to broadcasting
organizations bearing Vietnamese nationality;
(b) They belong to broadcasting organizations
protected pursuant to an international treaty of which the Socialist Republic
of Vietnam is a member.
4. Performances, audio and visual fixation,
broadcasts and satellite signals carrying coded programmes shall only be
protected pursuant to the provisions of clauses 1, 2 and 3 of this article on
the condition that they are not prejudicial to copyright.
Chapter II
CONTENTS
OF, LIMITATIONS ON AND TERM OF PROTECTION OF COPYRIGHT AND RELATED RIGHTS
Section 1. CONTENTS
OF, LIMITATIONS ON AND TERM OF PROTECTION OF COPYRIGHT
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Copyright in works regulated in this Law
shall comprise moral rights and economic rights.
Article 19. Moral
rights
Moral rights [of authors] shall comprise the
following rights:
1. To give titles to their works.
2. To attach their real names or pseudonyms
to their works; to have their real names or pseudonyms acknowledged when their
works are published or used.
3. To publish their works or to authorize
other persons to publish their works.
4. To protect the integrity of their works;
and to forbid other persons to modify, edit or distort their works in whatever
form, causing harm to the honour and reputation of the author.
Article 20. Economic
rights
1. Economic rights [of authors] shall
comprise the following rights:
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(b) To display their works to the public;
(c) To reproduce their works;
(d) To distribute or import the original or
copies of their works;
(dd) To communicate their works to the
public by wireless or landline means, electronic information networks or other
technical means;
(e) To lease the original or copies of
cinematographic works and computer programs.
2. Authors or copyright holders shall
exclusively exercise the rights stipulated in clause 1 of this article or may
grant other persons the right to exercise such rights pursuant to the
provisions of this Law.
3. When any organization or individual
exercises one, several or all of the rights stipulated in clause 1 of this
article and in article 19.3 of this Law, such organization or individual must ask
for permission from the copyright holder and must pay royalties, remuneration
or other material benefits to the copyright holder.
Article 21. Copyright
in cinematographic works and dramatic works
1. Persons who act as directors;
screenwriters; cameramen; montage makers; music composers; art designers;
studio sound, lighting and art designers; studio props and technical effects
designers, and persons engaged in other creative jobs in making cinematographic
works shall have the rights stipulated in clauses 1, 2 and 4 of article 19 of
this Law and other rights as agreed.
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2. Organizations and individuals who invest
finance or material and technical facilities in the production of
cinematographic works and stage works shall be holders of the rights stipulated
in article 19.3 and article 20 of this Law.
3. The organizations and individuals
stipulated in clause 2 of this article shall be obliged to pay royalties,
remuneration or other material benefits as agreed with the persons stipulated
in clause 1 of this article.
Article 22. Copyright
in computer programs and data collections
1. Computer program means a set of
instructions expressed in the form of commands, codes, diagrams and other forms
which, when incorporated in a device readable by a computer, are capable of
enabling such computer to perform a job or achieve a specific result.
Computer programs shall be protected the same
as literary works, irrespective of whether the computer programs are expressed
in the form of source codes or machine codes.
2. Data collection means a set of data
selected or arranged in a creative way and expressed in electronic or other
forms.
Copyright protection of data collections
shall not extend to protection of the data itself, and must not be prejudicial
to copyright in the data itself.
Article 23. Copyright
in folklore and folk art works
1. Folklore and folk art work means a
collective creation based on the traditions of a community or individuals
reflecting the ambitions of such community and expressed in a form appropriate
to the cultural and social characteristics, standards and values of such
community which have been handed down by imitation or other modes. Folklore and
folk art works shall comprise:
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(b) Folk songs and melodies;
(c) Folk dances, plays, rites and games;
(d) Folk art products including graphics,
paintings, sculpture, musical instruments, architectural models and other
artistic expressions in any material form.
2. Organizations and individuals using
folklore and folk art works must cite the origins of the folklore and folk art
works, and must ensure that the authentic value of such folklore and folk art
works is preserved.
Article 24. Copyright
in literary, artistic and scientific works
The Government shall issue specific
regulations governing the protection of copyright in the literary, artistic and
scientific works stipulated in article 14.1 of this Law.
Article 25. Cases
when published works may be used without having to seek permission or pay
royalties or remuneration
1. Published works may be used without having
to seek permission or pay royalties or remuneration in the following cases:
(a) Making one copy of the work of an author
for scientific research or teaching purposes;
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(c) Quoting from a work in order to write an
article published in a newspaper or periodical, in a radio or television
broadcast or in a documentary, without misrepresenting the author's views;
(d) Quoting from a work in school or
university for lecturing purposes without misrepresenting the author's views and
not for commercial purposes;
(dd) Copying of a work by a library for
archival and research purposes;
(e) Performing a stage work or other art
work in mass cultural, communication or mobilization activities without
collecting fees in any form;
(g) Audio-visual recording of a performance
in order to report current events or for teaching purposes;
(h) Photographing or televising plastic art;
or an architectural, photographic, or applied art work displayed at a public
place in order to present images of such work;
(i) Transcribing a work into braille or into
characters of other languages for the blind;
(k) Importing copies of another's work for
personal use.
2. Organizations and individuals who use the
works stipulated in clause 1 of this article must neither affect the normal use
of such works nor cause prejudice to the rights of the author or copyright
holder, and must provide information being the author's name and the source and
origin of the work.
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Article 26. Cases
when published works may be used without having to seek permission but
royalties or remuneration must be paid
1. A broadcasting organization which uses a
published work to make a broadcast which is sponsored, contains an
advertisement or which collects fees in any form shall not be required to seek
permission but must pay royalties or remuneration to the copyright holder in
accordance with regulations of the Government.
2. Organizations and individuals who use
works stipulated in clause 1 of this article must neither affect the normal use
of such works nor cause prejudice to the rights of the author or copyright
holder, and must provide information being the author's name and the source and
origin of the work.
3. The use of works in the cases stipulated
in clause 1 of this article shall not apply to cinematographic works.
Article 27. Term of
copyright protection
1. The moral rights stipulated in clauses 1,
2 and 4 of article 19 of this Law shall be protected for an indefinite term.
2. The moral rights stipulated in article
19.3 and the economic rights stipulated in article 20 of this Law shall enjoy
the following terms of protection:
(a) Cinematographic works, photographic
works, stage works, applied art works and anonymous works shall have a term of
protection of fifty (50) years as from the date of first publication. If a
cinematographic work or stage work has not been published within fifty (50)
years from the date of its formulation, the term of protection shall be
calculated from the date of its formulation. When information on the author of
an anonymous work appears, the term of protection of such work shall be
calculated pursuant to sub-clause (b) below;
(b) Any work not stipulated in sub-clause
(a) above shall be protected for the whole life of the author and for fifty
(50) years after his or her death. In the case of a work of joint authors, the
term of protection shall expire in the fiftieth year after the death of the
last surviving co-author;
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Article 28. Conduct
constituting infringement of copyright
1. Appropriating copyright in a literary,
artistic or scientific work.
2. Impersonating an author.
3. Publishing or distributing a work without
permission from the author.
4. Publishing or distributing a work of joint
authors without permission from the co-authors.
5. Modifying, editing or distorting a work in
any way which prejudices the honour and reputation of the author.
6. Copying a work without permission from the
author or copyright holder, except in the cases stipulated in sub-clauses (a)
and (dd) of article 25.1 of this Law.
7. Making a derivative work without
permission from the author or copyright holder of the work used for making such
derivative work, except in the case stipulated in sub-clause (i) of article
25.1 of this Law.
8. Using a work without permission from the
copyright holder and without paying royalties, remuneration or other material
benefits in accordance with law, except in the cases stipulated in article 25.1
of this Law.
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10. Duplicating, producing copies of,
distributing, displaying or communicating a work to the public via a
communications network or digital means without permission from the copyright
holder.
11. Publishing a work without permission from
the copyright holder.
12. Deliberately destroying or de-activating
the technical solutions applied by the copyright holder to protect copyright in
his or her work.
13. Deliberately deleting or modifying
electronic information in a work regarding management of the rights to such
work.
14. Manufacturing, assembling, transforming,
distributing, importing, exporting, selling or leasing out equipment when
knowing, or having grounds to know, that such equipment may de-activate
technical solutions applied by the copyright holder to protect copyright in his
or her work.
15. Making and selling a work with a forged
signature of the author of such work.
16. Importing, exporting or distributing
copies of a work without permission from the copyright holder.
Section 2. CONTENTS
OF, LIMITATIONS ON AND TERM OF PROTECTION OF RELATED RIGHTS
Article 29. Rights of
performers
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2. Moral rights shall comprise the following
rights:
(a) To have the name acknowledged when
performing, when distributing audio and visual fixation or when broadcasting
performances;
(b) To protect the integrity of the imagery
of the performance, and to prevent others from modifying, editing or distorting
the work in any way prejudicial to the honour and reputation of the performer.
3. Economic rights shall include the
exclusive right to exercise or to authorize others to exercise the following
rights:
(a) To formulate a live performance on audio
and visual fixation;
(b) To directly or indirectly reproduce a
performance which has been formulated on audio and visual fixation;
(c) To broadcast or to communicate to the
public in other ways an unformulated performance so that it may be accessed by
the public, except where such performance is intended to be broadcast;
(d) To distribute to the public an original
performance and copies thereof by sale, rental or distribution by whatever
technical means which are accessible by the public.
4. Any organization or individual who
exploits or uses the rights stipulated in clause 3 of this article must pay
remuneration to the performer in accordance with law or pursuant to an
agreement if there is no relevant provision of law.
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1. Producers of audio and visual fixation
shall have the exclusive right to exercise, or to authorize others to exercise,
the following rights:
(a) To directly or indirectly copy their
audio and visual fixation;
(b) To distribute to the public their
original audio and visual fixation and copies thereof by sale, rent or
distribution by whatever technical means which are accessible by the public.
2. Producers of audio and visual fixation
shall be entitled to material benefits when such recording is distributed to
the public.
Article 31. Rights of
broadcasting organizations
1. Broadcasting organizations shall have the
exclusive right to exercise, or to authorize others to exercise, the following
rights:
(a) To broadcast or re-broadcast their broadcasts;
(b) To distribute their broadcasts to the
public;
(c) To formulate [into a fixed form] their
broadcasts;
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2. Broadcasting organizations shall be
entitled to material benefits when their broadcasts are recorded and
distributed to the public.
Article 32. Cases
when related rights may be exercised without having to seek permission or pay
royalties or remuneration
1. Related rights may be exercised without
having to seek permission or pay royalties or remuneration in the following
cases:
(a) Making one copy of a work for personal
scientific research purposes;
(b) Making one copy of a work for teaching
purposes, except for performances, audio and visual fixation or broadcasts
which have been published for teaching purposes;
(c) Reasonable quoting from a work in order
to provide information;
(d) Making of provisional copies of a work
by a broadcasting organization for broadcasting purposes when such organization
has the broadcasting right.
2. Organizations and individuals who use
works stipulated in clause 1 of this article must neither affect the normal use
of performances, audio and visual fixation or broadcasts; nor cause prejudice
to the rights of performers, producers of audio and visual fixation, or broadcasting
organizations.
Article 33. Cases
when related rights may be exercised without having to seek permission but when
royalties or remuneration must be paid
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(a) They directly or indirectly use
published audio and visual fixation for commercial purposes in making
broadcasts which are sponsored, contain advertisements or which collect fees in
any form;
(b) They use published audio and visual
fixation in business or commercial activities.
2. Organizations and individuals who use
works stipulated in clause 1 of this article must neither affect the normal use
of performances, audio and visual fixation or broadcasts; nor cause prejudice
to the rights of performers, producers of audio and visual fixation or
broadcasting organizations.
Article 34. Term of protection
of related rights
1. The rights of performers shall be
protected for fifty (50) years calculated from the year following the year of
formulation [into a fixed form] of a performance.
2. The rights of producers of audio and
visual fixation shall be protected for fifty (50) years calculated from the
year following the year of publication, or fifty (50) years calculated from the
year following the year of formulation of any unpublished audio and visual
fixation.
3. The rights of broadcasting organizations
shall be protected for fifty (50) years calculated from the year following the
year of the making of a broadcast.
4. The terms of protection stipulated in
clauses 1, 2 and 3 of this article shall expire at 24:00 hrs on 31 December of
the year of expiration of the term of protection of the related rights.
Article 35. Conduct
constituting infringement of related rights
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2. Impersonating a performer, producer of
audio and visual fixation, or a broadcasting organization.
3. Publishing, producing and distributing a formulated
performance, audio and visual fixation or a broadcast without permission from
the performer, producer of the audio and visual fixation or from the
broadcasting organization.
4. Modifying, editing or distorting a
performance in any way which prejudices the honour and reputation of the
performer.
5. Copying or reciting from a formulated
performance, audio and visual fixation or a broadcast without permission from the
performer, producer of the audio and visual fixation or from the broadcasting
organization.
6. Deliberately deleting or modifying electronic
information regarding management of rights without permission from the related
right holder.
7. Deliberately destroying or de-activating
the technical solutions applied by the related right holder to protect his or
her rights.
8. Publishing, distributing or importing for public
distribution performances, copies of a fixed performance or audio and visual fixation
knowing, or having grounds to know, that electronic information regarding
management of rights has been deleted or modified without permission from the
related right holder.
9. Manufacturing, assembling, transforming, distributing,
importing, exporting, selling or leasing out equipment knowing, or having grounds
to know, that such equipment helps to illegally decode satellite signals
carrying coded programmes.
10. Deliberately receiving or relaying satellite
signals carrying coded programmes without permission from the legal
distributor.
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COPYRIGHT
HOLDERS, AND RELATED RIGHTS HOLDERS
Article 36. Copyright
holders
Copyright holder means an organization or
individual who holds one, several or all of the economic rights stipulated in
article 20 of this Law.
Article 37. Copyright
holders being authors
Authors who use their own time, finance and
material or technical facilities to create works shall have the moral rights
stipulated in article 19 and the economic rights stipulated in article 20 of
this Law.
Article 38. Copyright
holders being co-authors
1. Co-authors who use their time, finance and
material or technical facilities to jointly create works shall share the rights
to such works stipulated in articles 19 and 20 of this Law.
2. A co-author as defined in clause 1 of this
article who has jointly created a work, a separate part of which is detachable
for independent use without prejudice to the parts of the work of the other co-
authors, shall have the rights to such separate part stipulated in articles 19
and 20 of this Law.
Article 39. Copyright
holders being organizations and individuals who assign tasks to authors or who
enter into contracts with authors
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2. Any organization or individual who enters
into a contract with an author for the creation of a work shall be the holder
of the rights stipulated in articles 19.3 and 20 of this Law, unless otherwise
agreed.
Article 40. Copyright
holders being heirs
Any organization or individual who inherits
copyright in accordance with the law on inheritance shall be the holder of the
rights stipulated in articles 19.3 and 20 of this Law.
Article 41. Copyright
holders being assignees of rights
Any organization or individual who is
contractually assigned one, several or all of the rights stipulated in articles
19.3 and 20 of this Law shall be the copyright holder.
Article 42. Copyright
holders being the State
1. The State shall be the holder of copyright
in the following works:
(a) Anonymous works;
(b) Works for which the term of protection
has not expired but the copyright holder died without leaving an heir or the
heir renounced the inheritance or was deprived of the right to inherit;
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2. The Government shall issue detailed
regulations governing the use of works under State ownership.
Article 43. Works
belonging to the public
1. Any work whose term of protection has
expired pursuant to article 27 of this Law shall belong to the public.
2. All organizations and individuals shall be
entitled to use the works stipulated in clause 1 of this article but must
respect the moral rights of authors stipulated in article 19 of this Law.
3. The Government shall issue detailed
regulations governing the use of works belonging to the public.
Article 44. Related
right holders
1. Organizations and individuals who use their
time and make a financial investment in or use their material and technical facilities
to give a performance shall be the owners of such performance unless otherwise
agreed with the parties concerned.
2. Organizations and individuals who use their
time and make a financial investment in or use their material and technical
facilities to produce audio and visual fixation shall be the owners of such
audio and visual fixation unless otherwise agreed with the parties concerned.
3. Broadcasting organizations shall be the
owners of their broadcasts unless otherwise agreed with the parties concerned.
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TRANSFER
OF COPYRIGHT AND RELATED RIGHTS
Section 1. ASSIGNMENT
OF COPYRIGHT AND RELATED RIGHTS
Article 45. General
provisions on assignment of copyright and related rights
1. Assignment of copyright and related rights
means the transfer by copyright holders or related right holders of the
ownership of the rights stipulated in articles 19,3, 20, 29.3, 30 and 31 of
this Law to other organizations and individuals pursuant to a contract or in
accordance with a relevant provision of law.
2. Authors shall not be permitted to assign
the moral rights stipulated in article 19 of this Law, except for the right of
publication. Performers shall not be permitted to assign the moral rights
stipulated in article 29.2 of this Law.
3. Where a work, performance, audio and
visual fixation or broadcast is under joint ownership, the assignment thereof
must be agreed upon by all co-owners. In a case of joint ownership of a work,
performance, audio and visual fixation or broadcast which is composed of
separate parts detachable for independent use, copyright holders or related
right holders may assign their copyright or related rights in their separate
parts to other organizations or individuals.
Article 46. Contracts
for the assignment of copyright or related rights
1. A contract for the assignment of copyright
or related rights must be made in writing and include the following principal
contents:
(a) Names and addresses of the assignor and
the assignee;
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(c) Price and method of payment;
(d) Rights and obligations of the parties;
(dd) Liability for contractual breach.
2. The performance, amendment, termination or
cancellation of a contract for the assignment of copyright or related rights
must comply with the provisions of the Civil Code.
Section 2. LICENSING
OF COPYRIGHT AND RELATED RIGHTS
Article 47. General
provisions on licensing of copyright and related rights
1. Licensing of copyright and related rights
means the grant of permission by the copyright holder or related right holder
for another organization or individual to use for a definite term one, several
or all of the rights stipulated in articles 19,3, 20, 29.3, 30 and 31 of this
Law.
2. Authors shall not be permitted to license
the moral rights stipulated in article 19 of this Law, except
for the right of publication. Performers
shall not be permitted to license the moral rights specified in article 29.2 of
this Law.
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4. Any organization or individual to whom
copyright or related rights are licensed shall be permitted to license other
organizations and individuals after obtaining permission from the copyright
holder or related right holder.
Article 48. Contracts
for the licensing of copyright or related rights
1. A contract for the licensing of copyright or
related rights must be made in writing and include the following principal
contents:
(a) Full names and addresses of the licensor
and the licensee;
(b) Grounds for the licence;
(c) Scope of the licence;
(d) Price and method of payment;
(dd) Rights and obligations of the parties;
(e) Liability for contractual breach.
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Chapter V
CERTIFICATES
OF REGISTERED COPYRIGHT AND RELATED RIGHTS
Article 49.
Registration of copyright and related rights
1. Registration of copyright and related
rights means the filing of an application with a file enclosed (hereinafter
referred to as application) by an author, copyright holder or related rights
holder with the competent State body in order to record information on the
author, the work, the copyright holder and the related rights holder.
2. The filing of an application for grant of
a certificate of registered copyright or a certificate of registered related
rights shall not be a compulsory pre-requisite for entitlement to copyright or
related rights in accordance with the provisions of this Law.
3. Organizations and individuals who are
granted certificates of registered copyright or certificates of registered
related rights shall not bear the burden of proving such copyright or related
rights in a dispute, unless contrary proof is tendered.
Article 50.
Applications for registration of copyright or related rights
1. Authors, copyright holders and related
rights holders may directly file, or may authorize other organizations or
individuals to file, applications for registration of copyright or related
rights.
2. An application for registration of
copyright or related rights shall comprise:
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A declaration must be made in Vietnamese and
signed by the author, copyright holder, related rights holder or person
authorized to file the application; and must include complete information on
the applicant, author, copyright holder or related rights holder; the summarized
content of the work, performance, audio and visual fixation or broadcast; the
name of the author, and the title of the work used to make the derivative work
if the work to be registered is a derivative work; the date, place and form of
publication; and an undertaking accepting liability for the information set out
in the application.
The Ministry of Culture and Information shall
regulate the sample form of a declaration for registration of copyright or
related rights.
(b) Two copies of the work the subject of
the application for copyright registration, or two copies of the formulated
object the subject of the application for related rights registration;
(c) A letter of authorization where the
applicant is an authorized person;
(d) Documents proving the right to file the
application where the applicant acquires such right by way of inheritance,
succession or assignment;
(dd) Written consent of the co-authors in
the case of a work under joint authorship;
(e) Written consent of the co-owners if the
copyright or related rights are jointly owned.
3. The documents stipulated in sub-clauses
(c), (d), (dd) and (e) of clause 2 of this article must be written in
Vietnamese. Documents in a foreign language must be translated into Vietnamese.
Article 51. Authority
to grant registered copyright certificates and registered related rights
certificates
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2. The State administrative body authorized
to grant registered copyright certificates and registered related rights
certificates shall have the right to re-grant, renew or cancel such
certificates.
3. The Government shall issue regulations
governing the conditions, order and procedures for re- granting, renewal or
cancellation of registered copyright certificates and registered related rights
certificates.
4. The Ministry of Culture and Information
shall regulate the sample forms of registered copyright certificates and
registered related rights certificates.
Article 52.
Time-limit for granting registered copyright certificates and registered
related rights certificates
The State administrative body for copyright
and related rights shall be responsible to grant a registered copyright
certificate or registered related rights certificate to the applicant, or shall
notify the applicant in writing in a case of refusal to grant a certificate,
within a time-limit of fifteen (15) working days from the date of receipt of a
valid application.
Article 53. Validity
of registered copyright certificates and registered related rights certificates
1. Registered copyright certificates and
registered related rights certificates shall be valid throughout the entire
territory of Vietnam.
2. Any registered copyright certificate or
registered related rights certificate which was granted by the State
administrative body for copyright and related rights before the effective date
of this Law, shall continue to be valid.
Article 54. Official
recording and publication of registered copyright and registered related rights
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2. Decisions on the grant, re-grant, renewal
and cancellation of effectiveness of registered copyright certificates and
registered related rights certificates shall be published in the Official
Gazette on copyright and related rights.
Article 55. Re-grant,
renewal and cancellation of effectiveness of registered copyright certificates
and registered related rights certificates
1. Where a registered copyright certificate
or registered related rights certificate is lost or damaged, or where the
copyright holder or related rights holder is changed, the competent State body
stipulated in article 51.2 of this Law shall conduct procedures for the
re-grant or renewal of such certificate.
2. Where the grantee of a registered
copyright certificate or registered related rights certificate is not the
author, copyright holder or related rights holder; or where the registered work,
audio and visual fixation or broadcast is ineligible for protection, the
competent State body stipulated in article 51.2 of this Law shall cancel the
effectiveness of such certificate.
3. Any organization or individual who discovers
that the grant of a registered copyright certificate or registered related rights
certificate was contrary to law shall be entitled to request the State
administrative body for copyright and related rights to cancel the
effectiveness of such certificate.
Chapter VI
REPRESENTATION,
CONSULTANCY AND SERVICES REGARDING COPYRIGHT AND RELATED RIGHTS
Article 56.
Organizations acting as collective representatives of copyright or related
rights
1. An organization acting as the collective
representative of copyright or related rights means a non- profit making
organization established pursuant to an agreement between authors, copyright
holders or related right holders and operating pursuant to the law on protection
of copyright and related rights.
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(a) Manage copyright or related rights; conduct
negotiations for licensing; and collect and distribute royalties, remuneration and
other material benefits from the permitted exercise of authorized rights;
(b) Protect the legitimate rights and
interests of its members; organize a conciliation if a dispute arises.
3. An organization acting as the collective
representative of copyright or related rights shall have the following rights
and duties:
(a) To encourage creative and other social
activities;
(b) To co-operate with counterparts in
international and national organizations on the protection of copyright and
related rights;
(c) To make periodic and one-off reports to competent
State bodies on its collective representative activities;
(d) Other rights and duties stipulated by
law.
Article 57.
Consultancy and service organizations regarding copyright and related rights
1. Consultancy and service organizations
regarding copyright and related rights shall be permitted to be established and
operate in accordance with law.
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(a) Provide consultancy on issues related to
the law on copyright and related rights;
(b) Carry out, on behalf of and pursuant to
authorization from copyright holders and related right holders, procedures for
filing applications for registration of copyright and related rights;
(c) Participate pursuant to authorization in
other legal relationships on copyright, related rights and protection of legitimate
rights and interests of authors, copyright holders and related right holders.
PART III
INDUSTRIAL
PROPERTY RIGHTS
Chapter VII
CONDITIONS
FOR PROTECTION OF INDUSTRIAL PROPERTY RIGHTS
Section 1. CONDITIONS
FOR PROTECTION OF INVENTIONS
Article 58. General
conditions for inventions to be eligible for protection
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(a) It is novel;
(b) It is of an inventive nature;
(c) It is susceptible of industrial
application.
2. Unless an invention is common knowledge,
it shall be protected in the form of the grant of a utility solution patent
when it satisfies the following conditions:
(a) It is novel;
(b) It is susceptible of industrial
application.
Article 59. Objects
ineligible for protection as inventions
The following objects shall be ineligible for
protection as inventions:
1. Scientific discoveries or theories,
mathematical methods.
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3. Presentations of information.
4. Solutions of aesthetic characteristics
only.
5. Plant varieties, animal breeds.
7. Processes of plant or animal production
which are principally of a biological nature, other than microbiological
processes.
8. Human and animal disease prevention
methods, diagnostic and treatment methods.
Article 60. Novelty
of inventions
1. An invention shall be deemed novel if it
has not yet been publicly disclosed by use or by means of a written description
or any other form either inside or outside Vietnam before the filing date or
the priority date, as applicable, of the invention registration application.
2. An invention shall be deemed not yet
publicly disclosed if it is known to only a limited number of persons who are
obliged to keep it secret.
3. An invention shall not be deemed to have
lost its novelty if it is published in the following cases, provided that the
invention registration application is filed within six (6) months from the date
of publication:
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(b) It is published in the form of a
scientific presentation by the person having the right to register it as
defined in article 86 of this Law;
(c) It is displayed at a national exhibition
of Vietnam or at an official or officially recognized international exhibition
by the person having the right to register it as defined in article 86 of this
Law.
Article 61. Inventive
nature of inventions
An invention shall be deemed to be of an
inventive nature if, based on technical solutions already publicly disclosed by
use or by means of a written description or any other form either inside or
outside Vietnam prior to the filing date or the priority date as applicable of
the application for registration of the invention, the invention constitutes
inventive progress and cannot be easily created by a person with average
knowledge in the art.
Article 62.
Inventions which are susceptible of industrial application
An invention shall be deemed to be
susceptible of industrial application if it is possible to realize mass
manufacture or production of products or repeated application of the process
which is the subject matter of the invention, and to achieve stable results.
Section 2. CONDITIONS
FOR PROTECTION OF INDUSTRIAL DESIGNS
Article 63. General
conditions for industrial designs to be eligible for protection
1. An industrial design shall be eligible for
protection when it satisfies the following conditions:
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(b) It is of a creative nature;
(c) It is susceptible of industrial
application.
Article 64. Objects
ineligible for protection as industrial designs
The following items shall be ineligible for
protection as industrial designs:
1. Outward appearance of a product which is
necessarily due to the technical features of the product.
2. Outward appearance of civil or industrial
construction works.
3. Shape of a product which is invisible
during the use of the product.
Article 65. Novelty
of industrial designs
1. An industrial design shall be deemed to be
new if it significantly differs from other industrial designs which have been
publicly disclosed by use or by means of written descriptions or in any other
form either inside or outside Vietnam prior to the filing date or the priority
date, as applicable, of the application for registration of the industrial
design.
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3. An industrial design shall be deemed not
yet publicly disclosed if it is known to only a limited number of persons who
are obliged to keep it secret.
4. An industrial design shall be deemed not
to have lost its novelty if it is published in the following cases, provided
that the application for registration of the industrial design is filed within
six (6) months from the date of publication:
(a) It is published by another person
without permission from the person having the right to register it as defined
in article 86 of this Law;
(b) It is published in the form of a
scientific presentation by the person having the right to register it as defined
in article 86 of this Law;
(c) It is displayed at a national exhibition
of Vietnam or at an official or officially recognized international exhibition
by the person having the right to register it as defined in article 86 of this
Law.
Article 66. Creativity
of industrial designs
An industrial design shall be deemed to be
creative if, based on industrial designs already publicly disclosed through use
or by means of written descriptions or in any other form either inside or
outside Vietnam before the filing date or the priority date, as applicable, of
the application for registration of the industrial design, the industrial
design cannot be easily created by a person with average knowledge in the art.
Article 67.
Industrial designs which are susceptible of industrial application
An industrial design shall be deemed to be
susceptible of industrial application if it can be used as a model for mass
manufacture of products with the outward appearance embodying such industrial
design by industrial or handicraft methods.
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Article 68 General
conditions for layout designs to be eligible for protection
A layout design shall be eligible for
protection when it satisfies the following conditions:
1. It is original.
2. It is commercially novel.
Article 69. Objects
ineligible for protection as layout designs
The following items shall be ineligible for
protection as layout designs:
1. Principles, processes, systems and methods
operated by semiconductor integrated circuits.
2. Information or software contained in
semiconductor integrated circuits.
Article 70.
Originality of layout designs
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(a) It is the result of its author's creative
labour;
(b) It was not widely known among creators
of layout designs or manufacturers of semi- conducting closed circuits at the
time of its creation.
2. A layout design which is a combination of
elements and common interconnections shall be deemed to be original only if
such combination, taken overall, is original pursuant to the provisions of
clause 1 of this article.
Article 71.
Commercial novelty of layout designs
1. A layout design shall be deemed to be
commercially novel if it has not yet been commercially exploited anywhere in
the world prior to the filing date of the application for registration.
2. A layout design shall not be deemed to
have lost its commercial novelty if the application for registration of the
layout design is filed within two years from the date it was commercially
exploited for the first time anywhere in the world by the person who has the
right to register it as defined in article 86 of this Law or by his or her
licensee.
3. Commercial exploitation of a layout design
as stipulated in clause 2 of this article means any act of public distribution
for commercial purposes of a semiconductor integrated circuit produced by
incorporation of such layout design, or of a commodity containing such
semiconductor integrated circuit.
Section 4. CONDITIONS
FOR PROTECTION OF MARKS
Article 72. General
conditions for marks to be eligible for protection
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1. It is a visible sign in the form of
letters, words, drawings or images including holograms, or a combination
thereof, represented in one or more colours.
2. It is capable of distinguishing goods or
services of the mark owner from those of other subjects.
Article 73. Signs
ineligible for protection as marks
The following signs shall be ineligible for
protection as marks:
1. Signs identical with or confusingly
similar to national flags or national emblems.
2. Signs identical with or confusingly
similar to emblems, flags, armorial bearings, abbreviated names or full names
of Vietnamese State bodies, political organizations, socio-political
organizations, socio- politico-professional organizations, social organizations
or socio-professional organizations or with international organizations, unless
permitted by such bodies or organizations.
3. Signs identical with or confusingly
similar to real names, aliases, pseudonyms or images of leaders, national
heroes or famous personalities of Vietnam or foreign countries.
4. Signs identical with or confusingly
similar to certification seals, check seals or warranty seals of international
organizations which require that their signs must not be used, unless such
seals are registered as certification marks by such organizations.
5. Signs which cause misunderstanding or
confusion or which deceive consumers as to the origin, properties, use,
quality, value or other characteristics of goods or services.
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1. A mark shall be deemed to be distinctive
if it consists of one or more easily noticeable and memorable elements, or of
many elements forming an easily noticeable and memorable combination, and does
not fall into the cases stipulated in clause 2 of this article.
2. A mark shall be deemed to be indistinctive
if it is a sign falling into one of the following categories:
(a) Simple shapes and geometric figures,
numerals, letters or scripts of uncommon languages, except where such sign has
been widely used and recognized as a mark;
(b) Conventional signs or symbols, pictures
or common names in any language of goods or services that have been widely and
regularly used and known to many people;
(c) Signs indicating time, place and method
of production; category, quantity, quality, properties, ingredients, use, value
or other characteristics descriptive of goods or services, except where such
sign has acquired distinctiveness by use before the filing of the application
for registration of the mark;
(d) Signs describing the legal status and
business sector of business entities;
(dd) Signs indicating the geographical
origin of goods or services, except where such sign has been widely used and
recognized as a mark or registered as a collective mark or certification mark
as stipulated in this Law;
(e) Signs other than integrated marks which
are identical with or confusingly similar to registered marks of identical or
similar goods or services on the basis of applications for registration with
earlier filing dates or priority dates, as applicable, including applications
for registration of marks filed pursuant to a treaty of which the Socialist
Republic of Vietnam is a member;
(g) Signs identical with or confusingly
similar to another person's mark which has been widely used and recognized for
similar or identical goods or services before the filing date or the priority
date, as applicable;
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(i) Signs identical with or confusingly
similar to another person's mark recognized as a well known mark which has been
registered for goods or services which are identical with or similar to those
bearing such well known mark, or for dissimilar goods or services if the use of
such mark may affect the distinctiveness of the well known mark or the mark
registration was aimed at taking advantage of the reputation of the well known
mark;
(k) Signs identical with or similar to
another person's trade name currently in use if the use of such sign may cause
confusion to consumers as to the origin of goods or services;
(l) Signs identical with or similar to a
protected geographical indication if the use of such sign may mislead consumers
as to the geographical origin of goods;
(m) Signs identical with, containing or
being translated or transcribed from protected geographical indications for
wines or spirits if such sign has been registered for use with respect to wines
and spirits not originating from the geographical areas bearing such
geographical indications;
(n) Signs identical with or insignificantly
different from another person's industrial design which has been protected on
the basis of an application for registration of an industrial design with a
filing date or priority date earlier than that of the application for
registration of the mark.
Article 75. Criteria
for evaluation of whether or not a mark is well known
The following criteria shall be taken into
account when considering whether or not a mark is well known:
1. The number of relevant consumers who were
aware of the mark by purchase or use of goods or services bearing the mark, or
from advertising.
2. The territorial area in which goods or
services bearing the mark are circulated.
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4. Duration of continuous use of the mark.
5. Wide reputation of goods or services
bearing the mark.
6. Number of countries protecting the mark.
7. Number of countries recognizing the mark
as a well known mark.
8. Assignment price, licensing price, or
investment capital contribution value of the mark.
Section 5. CONDITIONS
FOR PROTECTION OF TRADE NAMES
Article 76. General
conditions for trade names to be eligible for protection
A trade name shall be protected when it is
capable of distinguishing the business entity bearing it from other business
entities operating in the same business sector and locality.
Article 77. Objects
ineligible for protection as trade names
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Article 78.
Distinctiveness of trade names
A trade name shall be deemed to be distinctive
when it satisfies the following conditions:
1. It consists of a proper name, except where
the proper name was widely known by use.
2. It is not identical with or confusingly
similar to a trade name which was used earlier by another person in the same
business sector and locality.
3. It is not identical with or confusingly
similar to another person's mark or a geographical indication which was
protected before the date of use of such trade name.
Section 6. CONDITIONS
FOR PROTECTION OF GEOGRAPHICAL INDICATIONS
Article 79. General
conditions for geographical indications to be eligible for protection
A geographical indication shall be eligible
for protection when it satisfies the following conditions:
1. The product bearing the geographical
indication originates from the area, locality, territory or country
corresponding to such geographical indication.
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Article 80. Objects
ineligible for protection as geographical indications
The following objects shall be ineligible for
protection as geographical indications:
1. Names or indications which have become
generic names of goods in Vietnam.
2. Geographical indications of foreign
countries where they are not, or no longer, protected or used.
3. Geographical indications identical with or
similar to a protected mark, where the use of such geographical indication is
likely to cause confusion as to the origin of products.
4. Geographical indications which mislead
consumers as to the true geographical origin of products bearing such
geographical indications.
Article 81.
Reputation, quality and characteristics of products bearing geographical
indications
1. Reputation of products bearing a
geographical indication shall be determined on the basis of the trust of
consumers in such products to the extent such products are widely known to and
selected by consumers.
2. Quality and characteristics of products
bearing a geographical indication shall be determined by one or more
qualitative, quantitative or physically, chemically, microbiologically
perceptible criteria which can be tested by technical means or by experts with
appropriate testing methods.
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1. Geographical conditions relevant to a
geographical indication means natural and human factors decisive to reputation,
quality and characteristics of products bearing such geographical indication.
2. Natural factors shall include climatic,
hydrological, geological, topographical and ecological factors and other
natural conditions.
3. Human factors shall include skills and
expertise of producers, and traditional production processes of localities.
Article 83.
Geographical areas bearing geographical indications
Geographical areas bearing geographical
indications must have their boundaries accurately determined by words and by
maps.
Section 7. CONDITIONS
FOR PROTECTION OF TRADE SECRETS
Article 84. General
conditions for trade secrets to be eligible for protection
A trade secret shall be eligible for
protection when it satisfies the following conditions:
1. It is neither common knowledge nor easily
obtainable.
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3. The owner of the trade secret maintains
its secrecy by necessary means so that the secret will not be disclosed nor be
easily accessible.
Article 85. Objects
ineligible for protection as trade secrets
The following confidential information shall
be ineligible for protection as trade secrets:
1. Personal identification secrets.
2. State management secrets.
3. National defence and security secrets.
4. Other confidential information unrelated
to business.
Chapter VIII
ESTABLISHMENT
OF INDUSTRIAL PROPERTY RIGHTS TO INVENTIONS, INDUSTRIAL DESIGNS, LAYOUT
DESIGNS, MARKS AND GEOGRAPHICAL INDICATIONS
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Article 86. Right to
register inventions, industrial designs and layout designs
1. The following organizations and
individuals shall have the right to register inventions, industrial designs and
layout designs:
(a) Authors who have created inventions,
industrial designs or layout designs by their own labour and at their own
expense;
(b) Organizations or individuals who have
supplied funds and material facilities to authors in the form of job assignment
or hiring, unless otherwise agreed by the parties involved and provided that
such agreements are not contrary to the provisions of clause 2 of this article.
2. The Government shall provide regulations
on the right to register inventions, industrial designs and layout designs
created by using material and technical facilities and funds from the State
Budget.
3. Where a number of organizations and
individuals have jointly created or invested in the creation of an invention,
industrial design or layout design, such organizations and individuals shall
all have the registration right which may only be exercised with the consensus
of all.
4. A person who has the registration right as
stipulated in this article may assign such right to other organizations or
individuals by a written contract, bequest or inheritance in accordance with
law, even where a registration application has already been filed.
Article 87. Right to
register marks
1. Organizations and individuals shall have
the right to register marks to be used for goods such organizations or
individuals produce or for services such organizations or individuals provide.
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3. Lawfully established collective organizations
shall have the right to register collective marks to be used by the members of
the collective organization pursuant to the regulations of the collective
organization on use of collective marks. For signs indicating geographical
origins of goods or services, an organization with the right to register means
a local collective organization of [other] organizations or individuals engaged
in production or trading in the relevant locality.
4. Organizations with the function of
controlling and certifying quality, properties, origin or other relevant
criteria of goods or services shall have the right to register certification
marks, provided that such organizations are not engaged in production or
trading of such goods or services.
5. Two or more organizations or individuals
shall have the right to jointly register a mark in order to become its
co-owners on the following conditions:
(a) Such mark is used in the names of all
co-owners or used for goods or services which are produced or traded with the
participation of all co-owners;
(b) The use of such mark does not cause
confusion to consumers as to the origin of goods or services.
6. Persons with the registration right
stipulated in clauses 1, 2, 3, 4 and 5 of this article, including those who
have already filed registration applications, may assign the registration right
to other organizations or individuals by a written contract, bequest or
inheritance in accordance with law, provided that the assignee satisfies the
conditions applicable to persons with the registration right.
7. For a mark protected in a country being a
contracting party to a treaty of which the Socialist Republic of Vietnam is a
member, which treaty prohibits the representative or agent of a mark owner from
registering such mark, the representative or agent shall not be permitted to
register such mark without agreement from the mark owner unless there is a
justifiable reason.
Article 88. Right to
register geographical indications
The right to register Vietnamese geographical
indications belongs to the State.
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Article 89. Methods
of filing an application for registration of establishment of industrial
property rights
1. Vietnamese organizations and individuals,
foreign individuals permanently residing in Vietnam, and foreign organizations
and individuals having production or business establishments in Vietnam shall
file applications for registration of establishment of industrial property
rights either directly or through their lawful representatives in Vietnam.
2. Foreign individuals not permanently
residing in Vietnam and foreign organizations and individuals without
production or business establishments in Vietnam shall file applications for
registration of establishment of industrial property rights through their
lawful representatives in Vietnam.
Article 90.
"First to file" principle
1. Where two or more applications for
registration are filed by different parties for the same invention, for
registration of industrial designs identical with or insignificantly different
from each other, for registration of marks identical with or confusingly similar
to each other, or for identical or similar goods or services, a protection
title may only be granted to the valid application with the earliest priority
or filing date amongst applications which satisfy all conditions for the grant
of a protection title.
2. Where there are two or more applications
satisfying all the conditions for the grant of a protection title and having
the same earliest priority or filing date, a protection title may only be
granted to a single application from such applications with agreement from all
applicants. Without such an agreement, all such applications shall be refused
the grant of a protection title.
Article 91. Priority
principle
1. An applicant for registration of an
invention, industrial design or mark may claim priority on the basis of the
first application for registration of protection of the subject matter if the
following conditions are fully satisfied:
(a) The first application was filed in
Vietnam or in a country being a contracting party to a treaty of which the
Socialist Republic of Vietnam is also a member, containing provisions on
priority right, or in a country which has agreed with Vietnam to apply such
provisions;
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(c) The claim for the priority right is
clearly stated in the application and a copy of the first application certified
by the receiving office is enclosed;
(d) The application is filed within the
time-limit provided for in a treaty of which Vietnam is a member.
2. In an application for registration of an
invention, industrial design or mark, the applicant may claim the priority
right on the basis of different earlier filed applications, provided that the
similarity between the contents of such earlier applications and the present
application are indicated.
3. An application for registration of
industrial property which enjoys priority right shall bear the priority date
being the filing date of the first application.
Article 92.
Protection titles
1. A protection title shall recognize the
owner of the invention, industrial design, layout design or mark (hereinafter
all referred to as protection title owners); the author of the invention,
industrial design or layout design; and the subject matter, scope and term of
protection.
2. A protection title of a geographical
indication shall record the organization managing such geographical indication,
the organization or individual having the right to use such geographical
indication, the protected geographical indication, the particular
characteristics of products bearing such geographical indication, and the
particular characteristics of geographical conditions and geographical areas
bearing such geographical indication.
3. Protections title shall include an
invention patent, utility solution patent, industrial design patent,
certificate of registered design of semi-conducting closed circuits,
certificate of registered mark and certificate of registered geographical
indication.
Article 93. Validity
of protection titles
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2. An invention patent shall be valid from
the grant date until the end of twenty (20) years after the filing date.
3. A utility solution patent shall be valid
from the grant date until the end of ten (10) years after the filing date.
4. An industrial design patent shall be valid
from the grant date until the end of five (5) years after the filing date and
may be renewed for two consecutive terms, each of five (5) years.
5. A certificate of registered design of
semi-conducting closed circuits shall be valid from the grant date until the
earliest date among the following:
(a) The end of ten (10) years after the
filing date;
(b) The end of ten (10) years after the date
the layout design was first commercially exploited anywhere in the world by a
persons with the registration right or his or her licensee;
(c) The end of fifteen (15) years after the
date of creation of the layout design.
6. A certificate of registered mark shall be
valid from the grant date until the end of ten (10) years after the filing date
and may be renewed for many consecutive terms, each of ten (10) years.
7. A certificate of registered geographical
indication shall have indefinite validity starting from the grant date.
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1. In order to maintain the validity of an
invention patent or a utility solution patent, the owner must pay a validity
maintenance fee.
2. In order to have the validity of an
industrial design patent or a certificate of registered mark extended, the
owner must pay a validity extension fee.
3. Fee rates and procedures for maintaining
or extending validity of protection titles shall be stipulated by the
Government.
Article 95.
Termination of validity of protection titles
1. The validity of a protection title shall
be terminated in the following cases:
(a) The owner fails to pay the stipulated
validity maintenance or extension fee;
(b) The owner declares relinquishment of the
industrial property rights;
(c) The owner no longer exists, or the owner
of a certificate of registered mark is no longer engaged in business activities
and does not have a lawful heir;
(d) The mark has not been used by its owner
or the licensee of the owner without justifiable reason for five (5)
consecutive years prior to a request for termination of validity, except where
use is commenced or resumed at least three (3) months before the request for
termination;
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(e) The owner of a certificate of registered
certification mark violates the regulations on use of the certification mark or
fails to supervise or ineffectively supervises the implementation of such
regulations;
(g) The geographical conditions decisive to
reputation, quality or special characteristics of products bearing a
geographical indication have changed resulting in the loss of such reputation,
quality or characteristics of products.
2. Where the owner of an invention protection
title fails to pay the validity maintenance fee before the stipulated
time-limit, the validity of such protection title shall, upon the expiration of
such time-limit, automatically terminate as from the first day of the first
valid year for which the validity maintenance fee has not been paid. The State
administrative body for industrial property rights shall record such
termination in the National Register of Industrial Property and publish it in
the Official Gazette of Industrial Property.
3. Where the owner of a protection title
declares relinquishment of the industrial property right as stipulated in
sub-clause (b) of clause 1 of this article, the State administrative body for
industrial property rights shall decide to terminate the validity of such protection
title from the date of receipt of the owner's declaration.
4. Organizations and individuals shall have
the right to request the State administrative body for industrial property
rights to terminate the validity of protection titles in cases specified in
sub-clauses (c), (d), (dd), (e) and (g) of clause 1 of this article, provided
that such organization or individual pays fees and charges. Based on the result
of the examination of a request for termination of validity of a protection
title and the opinions of the parties involved, the State administrative body
for industrial property rights shall issue a decision on termination of
validity of a protection title or notify refusal to terminate the validity of
the protection title.
5. The provisions of clauses 1, 3 and 4 of
this article shall also apply to the termination of validity of international
registrations of marks.
Article 96.
Cancellation of effectiveness of protection titles
1. A protection title shall be entirely
invalidated in the following cases:
(a) The applicant for registration has
neither had nor been assigned the right to register the invention, industrial
design, layout design or mark;
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2. A protection title shall be partly
invalidated as to the part which failed to satisfy the protection conditions.
3. Any organization or individual may request
the State administrative body for industrial property rights to invalidate a
protection title in the cases specified in clauses 1 and 2 of this article,
provided that such applicant pays fees and charges. The statute of limitations
for exercising the right to request invalidation of a protection title shall be
the whole term of protection of the protection title. For marks, such statute
of limitations shall be five (5) years from the grant date, except where the
protection title was granted as a result of dishonesty of the applicant.
4. Based on the result of the examination of
a request for invalidation of a protection title and the opinions of the
parties involved, the State administrative body for industrial property rights
shall issue a decision on entire or partial invalidation of the protection
title or shall notify refusal to invalidate.
5. The provisions of clauses 1, 2, 3 and 4 of
this article shall also apply to the invalidation of international
registrations of marks.
Article 97.
Amendments to protection titles
1. The owner of a protection title may
request the State administrative body for industrial property rights to make
amendments to the following information in such protection title, provided that
the prescribed fees and charge are paid:
(a) Changes of, and corrections of errors to
the name and address of the author or the protection title owner;
(b) Amendments to the description of
particular characteristics, quality or geographical area bearing a geographical
indication; amendments to the regulations on use of collective marks or the
regulations on use of a certification mark.
2. At the request of the owner of a
protection title, the State administrative body for industrial property rights
must correct errors caused by its fault in such protection title, and in such
case the protection title owner shall not be liable to pay fees and charges.
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Article 98. National
Register of Industrial Property
1. The National Register of Industrial
Property means the document recording the establishment, change and transfer of
industrial property rights to inventions, industrial designs, layout designs,
marks and geographical indications pursuant to this Law.
2. Decisions on grant of protection titles,
principal contents of protection titles and decisions on amendment to,
termination of validity or cancellation of validity of protection titles, and
decisions on registration of industrial property right transfer contracts shall
all be recorded in the National Register of Industrial Property.
3. The National Register of Industrial
Property shall be compiled and kept by the State administrative body for
industrial property rights.
Article 99.
Publication of decisions relating to protection titles
Decisions on the grant, termination of
validity, cancellation of validity or amendment of protection titles for
industrial property rights shall be published by the State administrative body
for industrial property rights in the Official Gazette of Industrial Property
within sixty (60) days as from the date of issuance of such decision.
Section 2.
APPLICATIONS FOR REGISTRATION OF INDUSTRIAL PROPERTY
Article 100. General
requirements applicable to applications for registration of industrial property
1. An industrial property registration
application shall contain the following documents:
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(b) Documents, samples and information
identifying the industrial property object registered for protection as
specified in articles 102 to 106 inclusive of this Law;
(c) Power of attorney, if the application is
filed through a representative;
(d) Documents evidencing the registration
right, if such right is acquired by the applicant from another person;
(dd) Documents evidencing the priority
right, if such right is claimed;
(e) Receipt for payment of fees and charges.
2. Industrial property registration
applications and source documents of transactions between an applicant and the
State administrative body for industrial property rights shall be made in
Vietnamese, except for the following documents which may be made in another
language but shall be translated into Vietnamese at the request of the State
administrative body for industrial property rights:
(a) Power of attorney;
(b) Documents evidencing the registration
right;
(c) Documents evidencing the priority right;
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3. Documents evidencing the priority right in
an industrial property registration application shall include:
(a) A copy of the first application(s)
certified by the receiving office;
(b) Deed of assignment of priority right if
such right is acquired from another person.
Article 101.
Requirements on the uniformity of an application for registration of industrial
property
1. Each industrial property registration
application shall request the grant of only one protection title for a single
industrial property object, except for the cases specified in clauses 2, 3 and
4 of this article.
2. Each registration application may request
the grant of one invention patent or one utility solution patent for a group of
inventions that are technically linked to form a single common inventive idea.
3. Each registration application may request
the grant of one industrial design patent for several industrial designs in the
following cases:
(a) Industrial designs of a set of products
consisting of numerous items expressing a single common inventive idea and used
together or for a common purpose;
(b) An industrial design accompanied by one
or more variants being variations of such industrial design which express a
single common inventive idea and which are not significantly different from
such industrial design.
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Article 102.
Requirements on applications for registration of inventions
1. Documents identifying an invention
registered for protection in an application for invention registration shall
include a description of the invention and an abstract of the invention. The
invention description shall contain a descriptive section and the scope of
protection of the invention.
2. The description of an invention must
satisfy the following conditions:
(a) Fully and clearly disclose the nature of
the invention to the extent that such invention may be realized by a person
with average knowledge in the art;
(b) Briefly explain accompanying drawings,
if it is required to further clarify the nature of the invention;
(c) Clarify the novelty, inventive step and
susceptibility of industrial application of the invention.
3. The scope of protection of an invention
shall be expressed in the form of a combination of technical specifications
which are necessary and sufficient to identify the scope of the rights to such
invention, compatible with the description of invention and drawings.
4. An abstract of an invention must disclose
principal features of the nature of such invention.
Article 103.
Requirements on applications for registration of industrial designs
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2. The descriptive section of an industrial
design must satisfy the following conditions:
(a) Fully disclose all features expressing
the nature of the industrial design and clearly identify features which are
new, different from the least different known industrial design, and consistent
with the set of photos or drawings;
(b) Where the application for registration
of the industrial design consists of variants, the descriptive section must
fully show these variants and clearly identify distinctions between the
principal variant and other variants;
(c) Where the industrial design stated in
the registration application is that of a set of products, the descriptive
section must fully show features of each product of the set.
3. The section on scope of protection of an
industrial design must clearly define features which need to be protected,
including features which are new and different from similar known industrial
designs.
4. The set of photos and drawings must fully
define the features of the industrial design.
Article 104.
Requirements on applications for registration of layout designs
Documents, samples and information identifying
a layout design which needs to be registered for protection in an application
for registration of a layout design shall include:
1. Drawings and photos of the layout-design.
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3. Samples of semi-conducting closed circuits
produced under the layout design, if such layout design has been commercially
exploited.
Article 105.
Requirements on applications for registration of marks
1. Documents, samples and information
identifying a mark which needs to be registered for protection in an
application for registration of a mark shall include:
(a) A sample of the mark and a list of goods
or services bearing the mark;
(b) Regulations on use of collective marks
or regulations on use of certification marks.
2. The sample of the mark must be described
in order to clarify elements of the mark and the comprehensive meaning of the
mark, if any; where the mark consists of words or phrases of hieroglyphic
languages, such words or phrases must be transcribed; where the mark consists
of words or phrases in a foreign language, such words or phrases must be
translated into Vietnamese.
3. Goods or services listed in an application
for registration of a mark must be classified into appropriate groups in
accordance with the Classification List under the Nice Agreement on
International Classification of Goods and Services for the purpose of mark
registration, and published by the State administrative body for industrial
property rights.
4. The regulations on use of collective marks
shall contain the following principal contents:
(a) Name, address, grounds of establishment
and operation of the collective organization being the owner of the mark;
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(c) List of organizations and individuals
permitted to use the mark;
(d) Conditions for use of the mark;
(dd) Measures for dealing with breaches of
regulations on use of the mark.
5. The regulations on use of certification
marks shall contain the following principal contents:
(a) The organization or individual being the
mark owner;
(b) Conditions for using the mark;
(c) Characteristics of goods or services
certified by the mark;
(d) Methods of evaluating characteristics of
goods or services and methods of controlling the use
of the mark;
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Article 106.
Requirements on applications for registration of geographical indications
1. Documents, samples and information
identifying a geographical indication which needs to be registered for
protection in an application for registration of a geographical indication
shall include:
(a) The name or sign being the geographical
indication;
(b) The product bearing the geographical
indication;
(c) Description of peculiar characteristics
and quality, or reputation of the product bearing the geographical indication
and particular elements of natural conditions decisive to the peculiar
characteristics and quality, or reputation of the product (hereinafter referred
to as the description of peculiar characteristics);
(d) Map of the geographical area bearing the
geographical indication;
(dd) Documents evidencing that the geographical
indication is under protection in the country of origin in the case of a
foreign geographical origin.
2. The description of peculiar
characteristics must contain the following principal contents:
(a) Description of the relevant product
including raw materials, and physical, chemical, microbiological and
perceptible properties of the product;
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(c) Evidence proving that the product
originates from such geographical area within the meaning stipulated in article
79 of this Law;
(d) Description of local and stable methods
of production and processing;
(dd) Information on relationship between the
peculiar characteristics and quality, or reputation of the product and the
geographical conditions as stipulated in article 79 of this Law;
(e) Information on the mechanism of
self-control of the peculiar characteristics or quality of the product.
Article 107
Authorized representation in procedures related to industrial property rights
1. Authorization for carrying out procedures
related to the establishment, maintenance, extension, amendment, termination
and invalidation of protection titles must be made in writing in the form of a
power of attorney.
2. A power of attorney must contain the
following principal contents:
(a) Full name and address of the principal
and of the attorney;
(b) Scope of authorization;
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(d) Date of making the power of attorney;
(dd) Signature and seal (if any) of the
principal.
3. A power of attorney without any valid term
shall be considered valid indefinitely, and validity shall be terminated only
when the principal declares termination of validity.
Section 3. PROCEDURES
FOR PROCESSING APPLICATIONS FOR REGISTRATION OF INDUSTRIAL PROPERTY AND FOR
GRANTING PROTECTION TITLES
Article 108. Receipt
of applications for registration of industrial property, and filing dates
1. An application for registration of
industrial property shall only be received by the competent State
administrative body for industrial property rights if the application consists
of at least the following documents and information:
(a) A declaration for registration of an
invention, industrial design, layout design, mark or geographical indication, which
includes sufficient information to identify the applicant and in the case of a
mark a sample of the mark and a list of goods or services bearing the mark;
(b) Description, including the scope of
protection, in the case of an application for registration of an invention; a
set of photos and drawings and a description in the case of an application for
registration of an industrial design; and a description of peculiar
characteristics of a product bearing a geographical indication, in the case of
an application for registration of a geographical indication;
(c) Receipt for payment of filing fee.
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Article 109. Formal
examination of applications for registration of industrial property
1. Applications for registration of
industrial property shall be subject to formal examination for evaluation of
their validity.
2. An application for registration of
industrial property shall be considered invalid in the following cases:
(a) It does not fulfil the formal
requirements;
(b) The subject matter stated in the application
is ineligible for protection;
(c) The applicant does not have the
registration right, including where the registration right belongs to more than
one organization or individual but one or more of them do not agree to the
filing;
(d) The application is filed in
contravention of regulations on the filing method stipulated in article 89 of
this Law;
(dd) The applicant fails to pay fees and
charges.
3. For applications for registration of
industrial property falling into a case stipulated in clause 2 of this article,
the State administrative body for industrial property rights shall carry out
the following procedures:
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(b) Issue a notice of refusal to accept the
invalid application if the applicant fails to correct errors, improperly
corrects errors or fails to make a justifiable objection to such intended
refusal stipulated in sub-clause (a) of this clause;
(c) Issue a notice of refusal to grant a
certificate of registered design of semi-conducting closed circuits in case of
a closed circuit registration application;
(d) Carry out procedures specified in clause
4 of this article if the applicant properly corrects errors or makes a
justifiable objection to the intended refusal to accept the invalid application
stipulated in sub-clause (a) of this clause.
4. For industrial property registration
applications not falling into a case stipulated in clause 2 of this article, or
in a case stipulated in sub-clause (d) of clause 3 of this article, the State
administrative body for industrial property rights shall issue a notice of
acceptance of the valid application or carry out procedures for granting a
protection title and recording it in the National Register of Industrial
Property as stipulated for in article 118 of this Law, applicable to layout
design registration applications.
5. Mark registration applications rejected
according to the provisions of clause 3 of this article shall be deemed not to
have been filed, except where they serve as grounds for claims for priority
right.
Article 110.
Publication of applications for registration of industrial property
1. Applications for registration of
industrial property which have been accepted as being valid by the State
administrative body for industrial property rights shall be published in the
Official Gazette of Industrial Property in accordance with the provisions of
this article.
2. Applications for registration of
inventions shall be published in the 19th month as from the filing date or the
priority date, as applicable, or at an earlier time at the request of the
applicant.
3. Applications for registration of industrial
designs, marks or geographical indications shall be published within two months
as from the date such application is accepted as being valid.
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Article 111.
Confidentiality of applications for registration of inventions and industrial
designs prior to publication thereof
1. Before applications for registration of
inventions and industrial designs are published in the Official Gazette of
Industrial Property, the State administrative body for industrial property
rights must keep information therein confidential.
2. State employees of the State administrative
body for industrial property rights who disclose information in applications
for registration of inventions and industrial designs shall be disciplined; if
the information disclosed causes loss and damage to applicants, such employees
must pay compensation therefor in accordance with law.
Article 112. Third
party opinions on the grant of protection titles
As from the date an application for
registration of industrial property is published in the Official Gazette of
Industrial Property up until prior to the date of issuance of a decision on
grant of a protection title, any third party shall have the right to express an
opinion to the competent State administrative body for industrial property
rights on the grant or refusal to grant a protection title for such
application. Such opinions must be made in writing and be accompanied by
documents or must quote the source of information.
Article 113. Request
for substantive examination of applications for registration of inventions
1. Within forty two (42) months after the
filing date or the priority date, as applicable, an applicant or any third
party may request the competent State administrative body for industrial
property rights to substantively examine an application [for registration of an
invention], provided that the substantive examination fee is paid.
2. The time-limit for making a request for
substantive examination of an application for registration of an invention
involving a request for a utility solution patent shall be thirty six (36) months
from the filing date or the priority date, as applicable.
3. Where no request for substantive
examination is filed within the time-limit specified in clauses 1 and 2 of this
article, the application for registration of the invention shall be deemed to
have been withdrawn at the expiry of such time-limit.
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1. The following applications for
registration of industrial property shall be substantively examined for evaluation
of the eligibility for grant of protection titles for subject matter stated in
such applications under protection conditions and for determination of the
respective scope of protection:
(a) Applications for registration of
inventions which have already been accepted as being valid and involve requests
for substantive examination filed according to regulations;
(b) Applications for registration of
industrial designs, marks and geographical indications which have been accepted
as being valid.
2. Applications for registration of layout
designs shall not be substantively examined.
Article 115.
Amendment, supplementation, division and conversion of applications for
registration of industrial property
1. An applicant shall have the following
rights before the competent State administrative body for industrial property
rights notifies a refusal or decides to grant a protection title:
(a) To amend or supplement the application;
(b) To divide the application;
(c) To request the recording of changes in
name or address of the applicant;
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(dd) To convert an application for
registration of an invention involving a request for an invention patent into
an application for registration of an invention involving a request for a
utility solution patent, and vice versa.
2. The applicants for completion of the
procedures stipulated in clause 1 of this article must pay fees and charges.
3. Any amendment or supplementation of an
application for registration of industrial property must not expand the scope
of the subject matter already disclosed or stated in such application, and must
not change the nature of the subject matter subject to registration stated in
the application and must ensure the uniformity of the application.
4. In a case of division of an application,
the filing date of the divided application shall be deemed to be the filing date
of the original application.
Article 116.
Withdrawal of applications for registration of industrial property
1. Before the competent State administrative
body for industrial property rights decides or refuses to grant a protection
title, the applicant shall have the right to make a written declaration on the
withdrawal of the application for registration of industrial property in his or
her own name or through an industrial property representation service
organization, provided that a power of attorney clearly states authorization
for withdrawal of the application.
2. As from the time an applicant declares
withdrawal of the application, all further procedures related to such
application shall cease; fees and charges already paid in relation to the
procedures which have not yet been commenced shall be refunded to the applicant
at his or her request.
3. All applications for registration of
industrial designs which have been withdrawn or are deemed to have been
withdrawn before their publication and all applications for registration of
marks which have been withdrawn shall be deemed not to have been filed, except
where they serve as grounds for claims for priority right.
Article 117. Refusal
to grant protection titles
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(a) There are grounds to affirm that the
subject matter stated in the application does not fully satisfy the conditions
for protection;
(b) The application satisfies the conditions
for the grant of a protection title but does not have the earliest filing date
or priority date as in the case stipulated in clause 1 of article 90 of this
Law;
(c) The application falls into a case
stipulated in clause 2 of article 90 of this Law but fails to have the
consensus of all applicants.
2. The grant of a protection title for an
application for registration of a layout design which does not fulfil the
formal requirements stipulated in article 109 of this Law shall be refused.
3. Where an application for registration of
industrial property falls into the cases stipulated in clauses 1 and 2 of this
article, the competent State administrative body for industrial property rights
shall carry out the following procedures:
(a) Notify an intended refusal to grant a
protection title, clearly stating the reasons therefor and setting a time-limit
for the applicant to make an objection to such intended refusal;
(b) Notify the refusal to grant a protection
title if the applicant makes no objection or makes unjustifiable objection to
such intended refusal stipulated in sub-clause (a) of this clause;
(c) Grant a protection title and record it
in the National Register of Industrial Property according to the provisions of
article 118 of this Law if the applicant has made a justifiable objection to
the intended refusal stipulated in sub-clause (a) of this clause.
4. Where an objection is made to the intended
grant of a protection title, the relevant application for registration of
industrial property shall be re-examined with regard to the matters about which
the objection is made.
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Where an application for registration of
industrial property does not fall into the cases of refusal to grant protection
titles stipulated in clauses 1, 2 and 3(b) of article 117 of this Law and the
applicant has paid the fee, the State administrative body for industrial
property rights shall decide to grant a protection title and enter it in the
National Register of Industrial Property.
Article 119.
Time-limit for processing applications for registration of industrial property
1. An application for registration of
industrial property shall have its form examined within one month from the
filing date.
2. An application for registration of
industrial property shall be substantively examined within the following
time-limits:
(a) For an invention, twelve (12) months
from the date of its publication if a request for substantive examination is
filed before the date of publication of the application, or from the date of
receipt of a request for substantive examination if such request is filed after
the date of publication of the application;
(b) For an industrial design, a mark or a
geographical indication, six (6) months from the date of publication of the
application.
3. The time-limit for re-examination of an
application for registration of industrial property shall be equal to
two-thirds of the time-limit for the initial examination, and may, in
complicated cases, be extended but must not exceed the time-limit for the
initial examination.
4. The duration for amendment or
supplementation of applications shall not be included in the time- limits
specified in clauses 1, 2 and 3 of this article.
Section 4.
INTERNATIONAL APPLICATIONS AND PROCESSING OF INTERNATIONAL APPLICATIONS
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1. Applications for registration of industrial
property filed pursuant to a treaty of which the Socialist Republic of Vietnam
is a member shall be collectively referred to as international applications.
2. International applications and processing
thereof shall comply with the relevant treaties.
3. The Government shall guide the implementation
of provisions in relevant treaties on international applications, and the order
and procedure for processing thereof in compliance with the principles
stipulated in this Chapter.
Chapter IX
OWNERS
OF INDUSTRIAL PROPERTY RIGHTS, CONTENTS OF INDUSTRIAL PROPERTY RIGHTS, AND
LIMITATIONS ON INDUSTRIAL PROPERTY RIGHTS
Section 1. OWNERS OF
INDUSTRIAL PROPERTY RIGHTS, CONTENTS OF INDUSTRIAL PROPERTY RIGHTS
Article 121. Owners
of industrial property objects
1. The owner of an invention, industrial
design or layout design means an organization or individual who is granted a
protection title for the respective industrial property object by the competent
body.
Owner of a mark means an organization or
individual who is granted a protection title for such mark by the competent
body or who has an internationally registered mark recognized by the competent
body or who has a well known mark.
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3. Owner of a trade secret means an
organization or individual who has lawfully acquired such trade secret and kept
it secret. A trade secret acquired by an employee or a performer of an assigned
task during the performance of the hired job or assigned task shall be owned by
the employer or the task assignor, unless otherwise agreed by the parties.
4. The State is the owner of geographical
indications of Vietnam.
The State shall grant the right to use
geographical indications to organizations or individuals who manufacture
products bearing such geographical indications in relevant localities and put
such products on the market. The State shall directly exercise the right to
manage geographical indications or grant that right to organizations
representing the interests of all organizations or individuals granted the
right to use geographical indications.
Article 122. Authors
of inventions, industrial designs and layout designs and their rights
1. The author of an invention, industrial design
or layout design means the person who has personally created such industrial
property object. Where two or more persons have jointly created an industrial
property object, they shall be co-authors of it.
2. Moral rights of authors of inventions,
industrial designs and layout designs shall include the following rights:
(a) To be named as authors in invention
patents, utility solution patents, industrial design patents or certificates of
registered design of semi-conducting closed circuits;
(b) To be acknowledged as authors in
documents in which inventions, industrial designs or layout designs are
published or introduced.
3. Economic rights of authors of inventions,
industrial designs and layout designs are the rights to receive remuneration as
stipulated in article 135 of this Law.
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1. Owners of industrial property objects
shall have the following economic rights:
(a) To use or authorize others to use
industrial property objects according to the provisions of article 124 and
Chapter X of this Law;
(b) To prevent others from using industrial
property objects according to the provisions of article 125 of this Law;
(c) To dispose of industrial property
objects according to the provisions of Chapter X of this Law.
2. Organizations and individuals who are
granted by the State the right to use or the right to manage geographical
indications according to the provisions of clause 4 of article 121 of this Law
shall have the following rights:
(a) Organizations which are granted the
right to manage geographical indications may permit other persons to use such
geographical indications according to the provisions of clause 1(a) of this
article;
(b) Organizations and individuals who are
granted the right to use or organizations which are granted the right to manage
geographical indications may prevent other persons from using such geographical
indications according to the provisions of clause 1(b) of this article.
Article 124. Use of
industrial property objects
1. Use of an invention means the performance
of the following acts:
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(b) Applying the protected process;
(c) Exploiting utilities of the protected
product or the product manufactured under the protected process;
(d) Circulating, advertising, offering or
stocking for circulation the products stipulated in sub-clause (c) of this
clause;
(dd) Importing the products stipulated in
sub-clause (c) of this clause.
2. Use of an industrial design means the
performance of the following acts:
(a) Manufacturing products with an
appearance embodying the protected industrial design;
(b) Circulating, advertising, offering or
stocking for circulation products stipulated in sub-clause (c) of this clause;
(c) Importing products stipulated in
sub-clause (c) of this clause.
3. Use of a layout design means the
performance of the following acts:
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(b) Selling, leasing, advertising, offering
or stocking copies of the protected layout design, semi- conducting closed
circuits manufactured under the protected layout design or articles containing
such semi-conducting closed circuits;
(c) Importing copies of the protected layout
design, semi-conducting closed circuits manufactured under the protected
layout-design or articles containing such semi-conducting closed circuits.
4. Use of a trade secret means the
performance of the following acts:
(a) Applying the trade secret to the
manufacture of products, provision of services or trade in goods;
(b) Selling, advertising for sale, stocking
for sale or importing products manufactured with the application of the trade
secret.
5. Use of a mark means the performance of the
following acts:
(a) Affixing the protected mark on goods,
goods packages, business facilities, means of service provision or transaction
documents in business activities;
(b) Circulating, offering, advertising for
sale or stocking for sale goods bearing the protected mark;
(c) Importing goods or services bearing the
protected mark.
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7. Use of a geographical indication means the
performance of the following acts:
(a) Affixing the protected geographical
indication in or on goods or goods packages, business facilities, and
transaction documents in business activities;
(b) Circulating, offering, advertising for
sale or stocking for sale goods bearing the protected geographical indication;
(c) Importing goods bearing the protected
geographical indication.
Article 125. Right to
prevent others from using industrial property objects
1. Owners of industrial property objects as
well as organizations and individuals granted the right to use or the right to
manage geographical indications shall have the right to prevent others from
using such industrial property objects unless such use falls into the cases
stipulated in clauses 2 and 3 of this article.
2. Owners of industrial property objects as
well as organizations and individuals granted the right to use or the right to
manage geographical indications shall not have the right to prevent others from
performing the following acts:
(a) Using inventions, industrial designs or
layout designs in service of their personal needs or for non-commercial
purposes, or for purposes of evaluation, analysis, research, teaching, testing,
trial production or information collection for carrying out procedures of
application for licences for production, importation or circulation of
products;
(b) Circulating, importing, exploiting
utilities of products which were lawfully put on the market including overseas
markets, except for products put on the overseas markets not by the mark owners
or their licensees;
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(d) Using inventions or industrial designs
by persons with the prior use right according to the provisions of article 134
of this Law;
(dd) Using inventions by persons authorized
by competent State bodies according to the provisions of articles 145 and 146
of this Law;
(e) Using layout designs without knowing or
having the obligation to know that such layout designs are under protection;
(g) Using marks identical with or similar to
protected geographical indications where such marks have acquired protection in
an honest manner before the date of filing the application for registration of
such geographical indication;
(h) Using in an honest manner people's
names, descriptive marks of type, quantity, quality, utility, value,
geographical origin and other properties of goods or services.
3. Owners of trade secrets shall not have the
right to prevent others from performing the following acts:
(a) Disclosing or using trade secrets
acquired without knowing or having the obligation to know that they were
unlawfully acquired by others;
(b) Disclosing secret data in order to
protect the public according to the provisions of clause 1 of article 128 of
this Law;
(c) Using secret data stipulated in article
128 of this Law not for commercial purposes;
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(dd) Disclosing or using trade secrets
obtained by analyzing or evaluating lawfully distributed products, unless
otherwise agreed upon by analyzers or evaluators and owners of such trade
secrets or sellers of such products.
Article 126. Acts of
infringement of rights to inventions, industrial designs and layout designs
The following acts shall be regarded as
infringements of rights of owners of inventions, industrial designs and layout
designs:
1. Using protected inventions, protected
industrial designs or industrial designs insignificantly different from
protected industrial designs, or protected layout designs or any original part
thereof within the valid term of a protection title without permission from the
owners.
2. Using inventions, industrial designs and
layout designs without paying compensation according to the provisions on
provisional rights in article 131 of this Law.
Article 127. Acts of
infringement of the right to trade secrets
1. The following acts shall be deemed
infringements of the right to trade secrets:
(a) Accessing or acquiring information
pertaining to a trade secret by taking acts against secrecy- keeping measures
applied by lawful controllers of such trade secret;
(b) Disclosing or using information
pertaining to a trade secret without the permission of the owner of such trade
secret;
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(d) Accessing or acquiring information
pertaining to the trade secret of an applicant for a licence for trading in or
circulating products by taking acts against secrecy-keeping measures applied by
competent bodies;
(dd) Using or disclosing trade secrets,
while knowing or having the obligation to know that they have been acquired by
others engaged in one of the acts stipulated in sub-clauses (a), (b), (c) or
(d) of this clause;
(e) Failing to perform the secrecy-keeping
obligation stipulated in article 128 of this Law.
2. Lawful controllers of trade secrets
defined in clause 1 of this Article include owners of trade secrets, their
lawful licensees and managers of trade secrets.
Article 128.
Obligation to maintain secrecy of test data
1. Where the law requires applicants for
licences for trading in or circulating pharmaceuticals or agro- chemical
products to supply test results or any other data being trade secrets obtained
by investment of considerable effort, and where applicants request such data to
be kept secret, the competent licensing body shall be obliged to apply
necessary measures so that such data is neither used for unfair commercial
purposes nor disclosed, except where the disclosure is necessary to protect the
public.
2. From the time of submission of secret data
in applications to the competent body stipulated in clause 1 of this article to
the end of a five year period as from the date the applicant is granted a
licence, such body must not grant licences to any subsequent applicants in
whose applications the said secret data is used without the consent of
submitters of such data, except for the cases stipulated in clause 3(d) of
article 125 of this Law.
Article 129. Acts of
infringement of rights to marks, trade names and geographical indications
1. The following acts, if performed without
the permission of mark owners, shall be deemed to be infringements of the right
to a mark:
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(b) Using signs identical with protected
marks for goods or services similar or related to those goods or services on
the list registered together with such mark, if such use is likely to cause
confusion as to the origin of the goods or services;
(c) Using signs similar to protected marks
for goods or services identical with, similar to or related to goods or
services on the list registered together with such mark, if such use is likely
to cause confusion as to the origin of the goods or services;
(d) Using signs identical with, or similar
to, well known marks, or signs in the form of translations or transcriptions of
well known marks for any goods or services, including those not identical with,
dissimilar or unrelated to goods or services on the lists of those bearing well
known marks, if such use is likely to cause confusion as to the origin of the
goods or services or misleading impressions as to the relationship between
users of such signs and well known mark owners.
2. All acts of using commercial indications
identical with, or similar to, trade names of others which were used earlier
for the same or similar type of goods or services, which cause confusion as to
business entities, establishments or activities under such trade names shall be
deemed to be infringements of the right to the trade name.
3. The following acts shall be deemed to be
infringements of the right to protected geographical indications:
(a) Using protected geographical indications
for products which do not satisfy the criteria of peculiar characteristics and
quality of products bearing geographical indications, although such products
originate from geographical areas bearing such geographical indication;
(b) Using protected geographical indications
for products similar to products bearing geographical indications for the
purpose of taking advantage of their reputation and popularity;
(c) Using any sign identical with, or similar
to, a protected geographical indication for products not originating from
geographical areas bearing such geographical indication, and therefore
misleading consumers into believing such products originate from such
geographical areas;
(d) Using protected geographical indications
of wines or spirits for wines or spirits not originating from geographical
areas bearing such geographical indication, even where the true origin of goods
is indicated or geographical indications are used in the form of translations
or transcriptions, or accompanied by such words as "category,"
"model," "type," "imitation" or the like.
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1. The following acts shall be deemed to be
acts of unfair competition:
(a) Using commercial indications to cause
confusion as to business entities, business activities or commercial origin of
goods or services;
(b) Using commercial indications to cause
confusion as to the origin, production method, utilities, quality, quantity or
other characteristics of goods or services; or as to the conditions for
provision of goods or services;
(c) Using marks protected in a country which
is a contracting party to a treaty of which the Socialist Republic of Vietnam
is a member and under which representatives or agents of owners of such marks
are prohibited from using such marks, if users are representatives or agents of
the mark owners and such use is neither consented to by the mark owners nor
justified;
(d) Registering or possessing the right to
use or using domain names identical with, or confusingly similar to, protected
trade names or marks of others, or geographical indications without having the
right to use, for the purpose of possessing such domain name, benefiting from
or prejudicing the reputation and popularity of the respective mark, trade name
or geographical indication.
2. Commercial indications stipulated in
clause 1 of this article mean signs and information serving as guidelines to
trading of goods or services including marks, trade names, business symbols,
business slogans, geographical indications, designs of packages and/or labels
of goods.
3. Acts of using commercial indications
stipulated in clause 1 of this article include acts of affixing such commercial
indications on goods, goods packages, means of service provision, business
transaction documents or advertising means; and selling, advertising for sale, stocking
for sale and importing goods affixed with such commercial indications.
Article 131.
Provisional rights to inventions, industrial designs and layout designs
1. Where an applicant for registration of an
invention or industrial design knows that such invention or industrial design
is being used by another person for commercial purposes without prior use
right, the applicant may notify in writing the user of the filing of the
latter's application, clearly specifying the filing date and the date of publication
of the application in the Official Gazette of Industrial Property so that the
user may either terminate or continue such use.
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3. Where the person notified of contents
stipulated in clauses 1 and 2 of this article continues using such invention,
industrial design or layout design, then as soon as an invention patent,
utility solution patent, industrial design patent or certificate of registered
design of semi-conducting closed circuits is granted, the owner of the object
shall have the right to request the user to pay compensation equivalent to the
price for licensing of such invention, industrial design or layout design
within the corresponding scope and duration of use.
Section 2.
LIMITATIONS ON INDUSTRIAL PROPERTY RIGHTS
Article 132. Factors
limiting industrial property rights
Industrial property rights may be limited
pursuant to this Law by the following factors:
1. Right of prior users to inventions or
industrial designs.
2. Obligations of owners, including:
(a) To pay remuneration to the authors of
inventions, industrial designs or layout designs;
(b) To use inventions or marks.
3. Licensing of inventions pursuant to
decisions of competent State bodies.
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1. Ministries and ministerial equivalent
bodies shall have the right, on behalf of the State, to use or permit other
organizations or individuals to use inventions in domains under their
respective management for public and non-commercial purposes, national defence
and security, disease prevention, and treatment and nutrition of the people,
and to meet other urgent social needs without having to obtain permission of
invention owners or their licensees under exclusive contracts (hereinafter
referred to as holders of the exclusive right to use inventions) in accordance
with articles 145 and 146 of this Law.
2. The use of inventions pursuant to clause 1
of this article shall be limited within the scope of and under the conditions
for licensing provided for in clause 1 of article 146 of this Law, except where
such inventions are created by using material and technical facilities and
funds from the State Budget.
Article 134. Right of
prior use of inventions and industrial designs
1. Where a person has, before the publication
date of an application for registration of an invention or industrial design,
used or prepared necessary conditions for use of an invention or industrial
design identical with the protected invention or industrial design stated in
such application for registration, but created independently (hereinafter
referred to as the prior use right holder), then after a protection title is
granted, such person shall be entitled to continue using such invention or
industrial design within the scope and volume of use or use preparations
without having to obtain permission or paying compensation to the owner of the
protected invention or industrial design. The exercise of the right of prior
users of inventions or industrial designs shall not be deemed an infringement
of the right of the owner of the invention or industrial design.
2. Prior use right holders to inventions or
industrial designs must not assign such right to others, except where such
right is assigned together with the transfer of a business or production
establishment which has used or has prepared to use the invention or industrial
design. Prior use right holders must not expand the use scope and volume unless
it is so permitted by the owner of the invention or industrial design.
Article 135.
Obligation to pay remuneration to authors of inventions, industrial designs and
layout designs
1. Owners of inventions, industrial designs
and layout designs shall be obliged to pay remuneration to the authors of such
inventions, industrial designs and layout designs in accordance with the
provisions of clauses 2 and 3 of this article, unless otherwise agreed upon by
the parties.
2. The minimum level of remuneration payable
by an owner to an author shall be regulated as follows:
(a) Ten (10) per cent of the profit gained
by the owner from the use of the invention, industrial design or layout design;
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3. Where an invention, industrial design or
layout design is jointly created by more than one author, the remuneration
level provided for in clause 2 of this article shall be applicable to all
co-authors. The co- authors shall agree between themselves on the division of
the remuneration paid by the owner.
4. The obligation to pay remuneration to
authors of inventions, industrial designs and layout designs shall exist
throughout the term of protection of such invention, industrial design or
layout design.
Article 136.
Obligation to use inventions and marks
1. Owners of inventions shall be obliged to
manufacture protected products or apply protected processes to satisfy the
requirements of national defence and security, disease prevention, and
treatment and nutrition of the people or to meet other social urgent needs.
When the needs stipulated in this clause arise but an invention owner fails to
perform such obligation, the competent State body may license such invention to
others without permission from the invention owner in accordance with the
provisions of articles 145 and 146 of this Law.
2. Owners of marks shall be obliged to use
such marks continuously. Where a mark has not been used for five consecutive
years or more, the ownership right to such mark shall be invalidated in
accordance with the provisions of article 95 of this Law.
Article 137.
Obligation to authorize the use of principal inventions for the purpose of
using dependent inventions
1. A dependent invention means an invention
created based on another invention (hereinafter referred to as the principal
invention) and may only be used on condition that the principal invention is
also used.
2. Where the owner of a dependent invention
can prove that his or her invention makes an important technical advance as
compared with the principal invention and has great economic significance, he
or she may request the owner of the principal invention to license such
principal invention at a reasonably commercial price and conditions.
Where the owner of a principal invention
fails to satisfy the request of the owner of a dependent invention without
justifiable reason, the State body concerned may license such invention to the
owner of the dependent invention without permission from the owner of the
principal invention in accordance with the provisions of articles 145 and 146
of this Law.
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TRANSFER
OF INDUSTRIAL PROPERTY RIGHTS
Section 1. ASSIGNMENT
OF INDUSTRIAL PROPERTY RIGHTS
Article 138. General
provisions on assignment of industrial property rights
1. Assignment of an industrial property right
means the transfer of ownership right by the owner of such industrial property
right to another organization or individual.
2. An assignment of an industrial property
right must be established in the form of a written contract (hereinafter
referred to as an industrial property right assignment contract).
Article 139.
Restrictions on assignment of industrial property rights
1. Industrial property right owners may only
assign their rights within the scope of protection.
2. Rights to geographical indications shall
not be assignable.
3. Rights to trade names may only be assigned
together with the transfer of the entire business establishment and business
activities under such trade name.
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5. Rights to marks may only be assigned to
organizations or individuals who satisfy conditions for persons having the
right to register such marks.
Article 140. Contents
of industrial property right assignment contracts
An industrial property right assignment
contract must contain the following principal contents:
1. Full names and addresses of the assignor
and of the assignee.
2. Grounds for the assignment.
3. Assignment price.
4. Rights and obligations of the assignor and
the assignee.
Section 2. LICENSING
OF INDUSTRIAL PROPERTY RIGHTS
Article 141. General
provisions on licensing of industrial property rights
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2. Licensing of industrial property objects
must be established in the form of a written contract (hereinafter referred to
as industrial property object licence contract).
Article 142.
Restrictions on licensing of industrial property objects
1. The right to use geographical indications
or trade names shall not be licensable.
2. The right to use collective marks must not
be licensed to organizations or individuals other than members of the owners of
such collective marks.
3. The licensee must not enter into a
sub-licence contract with a third party, unless it is so permitted by the
licensor.
4. Mark licensees shall be obliged to
indicate on goods and goods packages that such goods have been manufactured
under mark licence contracts.
5. Invention licensees under exclusive
contracts shall be obliged to use such inventions in the same manner as the
invention owners according to the provisions of clause 1 of article 136 of this
Law.
Article 143. Types of
industrial property object licence contracts
Industrial property object licence contracts
shall be of the following types:
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2. Non-exclusive contract means a contract
under which, within the licensing scope and term, the licensor shall still have
the right to use the industrial property object and to enter into a
non-exclusive industrial property object licence contract with others.
3. Industrial property object sub-licence
contract means a contract under which the licensor is a licensee of the right
to use such industrial property object pursuant to another contract.
Article 144. Contents
of industrial property object licence contracts
1. An industrial property object licence
contract must contain the following principal contents:
(a) Full names and addresses of the licensor
and of the licensee;
(b) Grounds for licensing;
(c) Contract type;
(d) Licensing scope including limitations on
use right and territorial limitations;
(dd) Contract term;
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(g) Rights and obligations of the licensor
and of the licensee.
2. An industrial property object licence
contract must not have provisions which unreasonably restrict the right of the
licensee, and in particular the following provisions which do not derive from
the rights
of the licensor:
(a) Prohibiting the licensee from improving
the industrial property object other than marks; compelling the licensee to
transfer free of charge to the licensor improvements of the industrial property
object made by the licensee or the right of industrial property registration or
industrial property rights to such improvements;
(b) Directly or indirectly restricting the
licensee from exporting goods produced or services provided under the
industrial property object licence contract to the territories where the
licensor neither holds the respective industrial property right nor has the
exclusive right to import such goods;
(c) Compelling the licensee to buy all or a
certain percentage of raw materials, components or equipment from the licensor
or a third party designated by the licensor not for the purpose of ensuring the
quality of goods produced or services provided by the licensee;
(d) Prohibiting the licensee from
complaining about or initiating lawsuits with regard to the validity of the
industrial property rights or the licensor's right to license.
3. Any clauses in a contract falling into the
cases stipulated in clause 2 of this article shall be automatically invalid.
Section 3. COMPULSORY
LICENSING OF INVENTIONS
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1. In the following cases, the right to use
an invention may be licensed to another organization or individual pursuant to
a decision of the competent State body defined in clause 1 of article 147 of
this Law without permission from the holder of the exclusive right to use such
invention:
(a) Where the use of such invention is for
public and non-commercial purposes or in service of national defence and
security, disease prevention, and treatment and nutrition of people or other
urgent needs of society;
(b) Where the holder of the exclusive right
to use such invention fails to fulfil the obligations to use such invention
stipulated in clause 1 of article 136 and clause 5 of article 142 of this Law
upon the expiration of four years as from the date of filing the application
for registration of the invention, or the expiration of three years as from the
date of granting the invention patent;
(c) Where a person who wishes to use the
invention fails to reach an agreement with the holder of the exclusive right to
use such invention or on entry into an invention licence contract in spite of
efforts made within a reasonable time for negotiating a satisfactory commercial
price and conditions;
(d) Where the holder of the exclusive right
to use such invention is deemed to have performed anti-competitive practices
prohibited by the law on competition.
2. The holder of the exclusive right to use
an invention may request termination of the use right when the grounds for
licensing stipulated in clause 1 of this article no longer exist and are
unlikely to recur, provided that such termination shall not be prejudicial to
the licensee of the invention.
Article 146.
Conditions limiting the right to use inventions compulsorily licensed pursuant
to a decision
1. The right to use an invention licensed
pursuant to a decision of a competent State body must comply with the following
conditions:
(a) Such licensed use right is
non-exclusive;
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(c) The licensee must neither assign nor
sub-license such right to others, except where the assignment is effected
together with the transfer of the licensee's establishment;
(d) The licensee must pay the holder of the
exclusive right to use the invention satisfactory compensation depending on the
economic value of such use right in each specific case, and compliant with the
compensation framework stipulated by the Government.
2. Apart from the conditions stipulated in
clause 1 of this article, the right to use an invention licensed in any of the
cases stipulated in clause 2 of article 137 of this Law must also satisfy the
following conditions:
(a) The holder of the exclusive right to use
the principal invention shall also be licensed to use dependent inventions on
reasonable terms;
(b) The licensee of the right to use the
principal invention must not assign such right, except where the assignment is
effected together with all rights to the dependent inventions.
Article 147.
Authority and procedures for compulsorily licensing of an invention pursuant to
a decision
1. The Ministry of Science and Technology
shall issue decisions on licensing of inventions based on a consideration of
requests for licensing in the cases stipulated in sub-clauses (b), (c) and (d)
of article 145.1 of this Law.
Ministries and ministerial equivalent bodies
shall, after consulting the opinion of the Ministry of Science and Technology,
issue decisions on licensing of inventions in domains under their respective
management in the case stipulated in sub-clause (a) of article 145.1 of this
Law.
2. Decisions on licensing of inventions must
set out appropriate use scope and conditions according to the provisions of
article 146 of this Law.
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4. A decision on licensing of an invention or
on refusal to license an invention may be subject to a complaint or lawsuit in
accordance with law.
5. The Government shall provide specific
regulations on licensing of inventions pursuant to this article.
Section 4.
REGISTRATION OF CONTRACTS FOR TRANSFER OF INDUSTRIAL PROPERTY RIGHTS
Article 148. Validity
of contracts for transfer of industrial property rights
1. For the industrial property rights
established on the basis of registration according to the provisions of clause
3(a) of article 6 of this Law, an industrial property right assignment contract
shall be valid upon its registration with the State administrative body for
industrial property rights.
2. For the industrial property rights
established on the basis of registration according to the provisions of clause
3(a) of article 6 of this Law, an industrial property object licence contract
shall be valid as agreed upon by the parties involved but shall be legally
effective as against a third party upon registration with the State
administrative body for industrial property rights.
3. Validity of an industrial property object
licence contract shall be automatically terminated upon the termination of the
licensor's industrial property rights.
Article 149.
Application file for registration of a contract for transfer of industrial
property rights
An application file for registration of an
industrial property object licence contract or of an industrial property right
assignment contract shall contain:
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2. The original or a valid copy of the
contract.
3. The original of the protection title in
the case of an industrial property right assignment.
4. The co-owners' written consent, or a
written explanation of the reason for disagreement of any co- owner with the
right assignment where the industrial property right is under joint ownership.
5. Receipt for payment of fees and charges.
6. A power of attorney, if the application
file is filed by a representative.
Article 150.
Processing application files for registration of contracts for transfer of
industrial property rights
The Government shall provide regulations on
the order and procedures for receiving and processing application files for
registration of industrial property object licence contracts and of industrial
property right assignment contracts.
Chapter XI
INDUSTRIAL
PROPERTY REPRESENTATION
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1. Industrial property representation
services shall comprise:
(a) Representing organizations or
individuals before competent State bodes in the establishment and enforcement
of industrial property rights;
(b) Providing consultancy on issues related
to procedures for the establishment and enforcement of industrial property
rights;
(c) Other services related to procedures for
the establishment and enforcement of industrial property rights.
2. Industrial property representatives shall
comprise organizations providing industrial property representation services
(hereinafter referred to as industrial property representation service
organizations) and individuals practicing industrial property representation within
such organizations (hereinafter referred to as industrial property agents).
Article 152. Scope of
rights of industrial property representatives
1. Industrial property representation service
organizations shall only provide services within the scope of authorization and
may re-authorize other industrial property representation service organizations
when they obtain written consent from the authorizing parties.
2. Industrial property representation service
organizations may voluntarily waive their industrial property representation
service business after having lawfully transferred all incomplete
representation jobs to other industrial property representation service
organizations.
3. Industrial property representatives must
not perform the following activities:
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(b) Withdraw applications for protection
titles, declare waiver of protection or withdraw appeals against the
establishment of industrial property rights without consent from the
authorizing parties;
(c) Deceive their clients regarding
contracts for industrial property representation services or force their
clients to enter into and perform such contracts.
Article 153.
Responsibilities of industrial property representatives
1. Industrial property representatives shall
have the following responsibilities:
(a) To clearly notify fee and charge amounts
and rates related to procedures for establishment and enforcement of industrial
property rights, and service charge amounts and rates according to the service
charge tariff registered at the State administrative body for industrial
property rights;
(b) To keep confidential information and
documents related to cases in which they act as representatives;
(c) To truthfully and fully inform
represented parties of all notices and requests from the State body competent
to establish and enforce industrial property rights; to deliver on time to the
represented parties protection titles and other decisions;
(d) To protect the rights and legitimate
interests of represented parties by promptly satisfying all requests regarding
represented parties from the State body competent to establish and enforce
industrial property rights;
(dd) To notify the State body competent to
establish and enforce industrial property rights of all changes in the names,
addresses of and other information about the represented parties when
necessary.
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Article 154.
Conditions applicable to industrial property representation service business
Organizations which satisfy the following
conditions shall be permitted to provide industrial property representation
services as industrial property representation service organizations:
1. Being a business or organization which
practises law, or a scientific and technological service organization lawfully
established and operating.
2. Having the function of providing
industrial property representation services, which is stated in its business
registration certificate or operation registration certificate (hereinafter
both referred to as business registration certificate).
3. The head of such organization or person
authorized by the head must satisfy the conditions for industrial property
representation service practice stipulated in clause 1 of article 155 of this
Law.
Article 155.
Conditions applicable to industrial property representation service practices
1. An individual who satisfies the following
conditions shall be permitted to practice industrial property representation
service:
(a) Having an industrial property
representation service practising certificate;
(b) Working for one industrial property
representation service organization.
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(a) Being a Vietnamese citizen with full
capacity for civil acts;
(b) Residing permanently in Vietnam;
(c) Having a university degree;
(d) Having been engaged personally in the
domain of industrial property law for five consecutive years or more, or in the
examination of assorted industrial property registration applications at
national or international industrial property offices for five consecutive
years or more, or having graduated from a training course on industrial
property law recognized by the competent body;
(dd) Not being a civil servant working in
the State body competent to establish and enforce industrial property rights;
(e) Having passed an examination on the
industrial property representation profession organized by the competent body.
3. The Government shall provide detailed
programs on industrial property law training and on examinations for the
industrial property representation profession, and on the grant of industrial
property representation service practising certificates.
Article 156.
Recording and deleting names of industrial property representation service
organizations; withdrawal of industrial property representation service
practising certificates
1. Organizations and individuals who satisfy
the conditions for industrial property representation service business or
practice stipulated in articles 154 and 155 of this Law shall, at their
request, be recorded in the National Register of Industrial Property
Representatives and published in the Official Gazette of Industrial Property by
the State administrative body for industrial property rights.
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3. Industrial property representation service
organizations which breach the provisions of clause 3 of article 152 and
article 153 of this Law shall be dealt with in accordance with law.
4. Industrial property agents who make
professional mistakes while practising or who breach the provisions of clause
3(c) of article 152 and clause 1(a) of article 153 of this Law shall, depending
on the nature and seriousness of their mistake or breach, be subject to a
caution, monetary fine or withdrawal of their industrial property
representation service practising certificate.
PART IV
RIGHTS
TO PLANT VARIETIES
Chapter XII
CONDITIONS
FOR PROTECTION OF RIGHTS TO PLANT VARIETIES
Article 157.
Organizations and individuals whose rights to plant varieties are eligible for
protection
1. Organizations and individuals whose rights
to plant varieties are eligible for protection means those who select and breed
or discover and develop plant varieties or who invest in the selection and
breeding or the discovery and development of plant varieties or to whom rights
to plant varieties are transferred.
2. Organizations and individuals defined in
clause 1 of this Article shall include Vietnamese organizations and
individuals; organizations and individuals of foreign countries which have
concluded agreements on the protection of plant varieties with the Socialist
Republic of Vietnam; and foreign organizations and individuals with permanent
residential addresses in Vietnam or with establishments producing or trading in
plant varieties in Vietnam.
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Plant varieties eligible for protection means
plant varieties which have been selected and bred or discovered and developed,
are on the list of State protected plant species promulgated by the Ministry of
Agriculture and Rural Development; and are new, distinct, uniform, stable and
designated by proper denominations.
Article 159. Novelty
of a plant variety
A plant variety shall be deemed new if
reproductive materials or harvested materials of such variety have not yet been
sold or otherwise distributed for the purpose of exploitation in the territory
of Vietnam by the registration right holder defined in article 164 of this Law
or his or her licensee one (1) year before the filing date of the application
for registration, or for exploitation outside the territory of Vietnam six (6)
years before the filing date of the application for registration for timber
trees or vines, or four (4) years for other plant varieties.
Article 160.
Distinctness of a plant variety
1. A plant variety shall be deemed to be
distinct if it is clearly distinguishable from any other variety whose
existence is a matter of common knowledge at the time of filing the application
or on the priority date, as the case may be.
2. Plant varieties whose existence is a
matter of common knowledge defined in clause 1 of this article mean those
falling into one of the following cases:
(a) Their reproductive materials or
harvested materials have been widely used in the market of any country at the
time of filing of the application for registration for protection;
(b) They have been protected or registered
on the list of plant species in any country;
(c) They are the subject matter of an
application for registration for protection or registration on the list of
plant species in any country, provided that such application has not been
rejected;
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Article 161.
Uniformity of a plant variety
A plant variety shall be deemed uniform if,
subject to variation which may be expected from the particular features of its
propagation, it is sufficiently uniform in its relevant characteristics.
Article 162.
Stability of a plant variety
A plant variety shall be deemed stable if its
relevant originally described characteristics remain unchanged after repeated
propagation or, in the case of a particular cycle of propagation, at the end of
each cycle.
Article 163.
Denominations of plant varieties
1. The registrant must designate a proper
denomination for a plant variety which must be the same as the denomination
registered in any country where and when an application for registration for
protection was filed.
2. The denomination of a plant variety shall
be deemed proper if it is distinguishable from those of other plant varieties
of common knowledge within the same or similar species.
3. Denominations of plant varieties shall be
deemed improper in the following cases:
(a) They consist of numerals only, except
where such numerals are relevant to characteristics or the breeding of such
variety;
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(c) They may easily mislead as to features
or characteristics of such variety;
(d) They may easily mislead as to
identification of the breeder;
(dd) They are identical or confusingly
similar to marks, trade names or geographical indications protected before the
date of publication of the application for registration for protection of such
plant variety;
(e) They are identical or similar to the
denomination of a harvested material of such plant variety;
(g) They affect prior rights of other
organizations or individuals.
4. Organizations and individuals who offer
for sale or bring onto the market reproductive materials of plant varieties
must use the denominations of such plant varieties as stated in protection
titles even after the expiration of the protection terms.
5. When denominations of plant varieties are
combined with marks, trade names or indications similar to denominations of
plant varieties already registered for offer for sale or brought onto the
market, such denominations must still be distinguishable.
Chapter XIII
ESTABLISHMENT
OF RIGHTS TO PLANT VARIETIES
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Article 164.
Registration of rights to plant varieties
1. In order to obtain protection of rights to
plant varieties, an organization or individual must file an application for
registration for protection with the State administrative body for rights to
plant varieties.
2. Organizations and individuals having the
right to register plant varieties for protection (hereinafter referred to as
registrants) shall include:
(a) Breeders who have personally selected
and bred or discovered and developed the plant variety by their own efforts and
at their own expense;
(b) Organizations and individuals who fund
breeders to select and breed or discover and develop the plant variety by job
assignment or hiring, unless otherwise agreed;
(c) Organizations and individuals to whom
are transferred, or who inherit the right to register for protection of the
plant variety.
3. For plant varieties which are selected and
bred or discovered and developed with the use of State Budget funds or under
projects managed by the State, the rights to such plant varieties shall belong
to the State. The Government shall issue specific regulations governing the
registration of rights to plant varieties stipulated in this clause.
Article 165. Method
of filing applications for registration of rights to plant varieties
1. Any Vietnamese organization or individual,
or foreign organization or individual with a permanent residential address in
Vietnam or who has a plant variety production or trading establishment in
Vietnam may file an application for registration of rights to a plant variety
(hereinafter referred to as protection registration application) either
directly or by a lawful representative in Vietnam.
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Article 166.
"First to file" principle applicable to plant varieties
1. Where two or more parties independently
file applications for registration for protection on different days for the
same plant variety, a plant variety protection certificate shall only be
granted to the earliest valid registrant.
2. Where there are a number of applications
for registration for protection of the same plant variety filed on the same
day, a plant variety protection certificate shall only be granted to the
registrant whose name is used for the filing of the sole application as agreed
upon by all the other registrants. Where these registrants fail to reach
agreement, the State administrative body for rights to plant varieties shall
consider a grant of a plant variety protection certificate to the party deemed
to be the first breeder who selected and bred or discovered and developed such
variety.
Article 167. Priority
principle applicable to protection registration applications
1. A registrant may claim priority right
where an application for registration for protection is filed within twelve
(12) months from the date of filing an application for registration for
protection for the same plant variety in a country which has concluded an
agreement on plant variety protection with the Socialist Republic of Vietnam.
The date on which the first filing occurred shall not be included in this
time-limit.
2. In order to enjoy priority right, the
registrant must express the claim for the priority right in his or her
application for registration for protection. Within three (3) months after
filing the application, the registrant must produce copies of documents on the
first application certified by the competent body and samples or other evidence
proving that the variety in both applications was the same, and the registrant
must pay a fee. The registrant may supply necessary information, documents or
materials to the State administrative body for rights to plant varieties for
examination according to the provisions of articles 176 and 178 of this Law
within two (2) years of expiry of the duration for enjoying the priority right,
or within an appropriate duration depending on the species of the plant variety
stated in the application after a first application is rejected or withdrawn.
3. Where an application for registration for
protection is eligible for priority right, the priority date shall be the first
filing date.
4. Within the time-limit stipulated in clause
1 of this article, the filing of another application or the publication or use
of the plant variety the subject matter of the first application for
registration for protection shall not be deemed a ground for rejecting the
application for registration for protection eligible for the priority right.
Article 168. Plant
variety protection certificates, and the National Register of Protected Plant
Varieties
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2. The State administrative body for rights
to plant varieties shall record the grant and contents of a protection
certificate in the National Register of Protected Plant Varieties, and shall
archive such information.
Article 169. Validity
of plant variety protection certificates
1. A plant variety protection certificate
shall be valid throughout the entire territory of Vietnam.
2. Plant variety protection certificates
shall be valid from the grant date up until the expiry of a period of
twenty-five (25) years for timber trees and vines; and of twenty (20) years for
other plant varieties.
3. Plant variety protection certificates may
have their validity terminated or they may be invalidated pursuant to the
provisions of articles 170 and 171 of this Law.
Article 170.
Suspension and restoration of validity of plant variety protection certificates
1. The validity of a plant variety protection
certificate may be suspended in the following cases:
(a) The protected plant variety no longer
satisfies the conditions of uniformity and stability as at the time of grant of
the certificate;
(b) The protection certificate holder fails
to pay the validity maintenance fee according to regulations;
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(d) The protection certificate holder fails
to change the denomination of the plant variety at the request of the State
administrative body for rights to plant varieties.
2. In the cases stipulated in sub-clauses
(a), (c) and (d) of clause 1 of this article, the relevant State administrative
body for rights to plant varieties shall issue a decision on suspension of
validity of the plant variety protection certificate.
3. In the case stipulated in sub-clause (b)
of clause 1 of this article, upon the expiry of the time-limit for payment of
the validity maintenance fee, the relevant State administrative body for rights
to plant varieties shall issue a decision on suspension of validity of the
plant variety protection certificate as from the first day of the next valid
year for which the validity maintenance fee was not paid.
4. In the case stipulated in sub-clause (a)
of clause 1 of this article, any organization or individual may request the
State administrative body for rights to plant varieties to suspend the validity
of the plant variety protection certificate.
Based on the results of considering the
application for suspension of a plant variety protection certificate and the
opinions of relevant parties, the relevant State administrative body for rights
to plant varieties shall either issue a decision to suspend the validity of the
certificate or shall refuse the application.
5. In the cases stipulated in clause 1 of
this article, the relevant State administrative body for rights to plant
varieties shall publish such suspension in a specialized magazine, clearly
stating the reasons therefor, and concurrently send a notice thereon to the
certificate holder. Within thirty (30) days from the date of notification, the
certificate holder may file a request for application of remedies to the
reasons why validity was suspended with the State administrative body for
rights to plant varieties and pay the fee for restoration of validity of the
plant variety protection certificate. Within ninety (90) days after the date of
filing the request, the protection certificate holder must remedy the reasons
why validity was suspended, applicable to the cases stipulated in sub-clauses
(b), (c) and (d) of clause 1 of this article. The State administrative body for
rights to plant varieties shall consider and restore the validity of the
protection certificate and publish such restoration in a specialized magazine.
In the case stipulated in sub-clause (a) of
clause 1 of this article, the validity of the plant variety protection
certificate shall be restored after its holder successfully proves that the
plant variety has satisfied the conditions of uniformity and stability and
after this has been so certified by the State administrative body for rights to
plant varieties.
Article 171.
Cancellation of effectiveness of plant variety protection certificates
1. The effectiveness of a plant variety
protection certificate shall be cancelled in the following cases:
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(b) The protected plant variety failed to
satisfy the conditions of novelty or distinctness at the time
of grant of the plant variety protection
certificate;
(c) The plant variety failed to satisfy the
conditions of uniformity or stability where the plant variety protection
certificate was granted on the basis of results of technical tests conducted by
the registrant.
2. During the valid term of a plant variety
protection certificate, any organization or individual may request the State
administrative body for rights to plant varieties to cancel the effectiveness
of a plant variety protection certificate.
Based on the results of the examination of a
request for cancellation of effectiveness of a plant variety protection
certificate and opinions of the relevant parties, the State administrative body
for rights to plant varieties shall either issue a notice of refusal to cancel
or shall issue a decision on cancellation of effectiveness of the plant variety
protection certificate.
3. Where a plant variety protection
certificate is cancelled, all transactions arising on the basis of the grant of
the plant variety protection certificate shall be null and void, and such null
and void transactions shall be dealt with in compliance with the Civil Code.
Article 172.
Amendment and re-grant of plant variety protection certificates
1. A protection certificate holder may
request the State administrative body for rights to plant varieties to amend or
correct errors related to the name and address of the holder, on payment of
fees and charges. Where such errors were made by the State administrative body
for rights to plant varieties, such body must correct such errors, and
protection certificate holders shall not have to pay fees and charges.
2. A protection certificate holder may
request the State administrative body for rights to plant varieties to re-grant
a plant variety protection certificate when such certificate was lost or
damaged, provided that the holder pays fees and charges.
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Decisions on the grant, re-grant, suspension,
cancellation, and amendment of plant variety protection certificates shall be
published by the State administrative body for rights to plant varieties in a
specialized magazine on plant varieties within sixty (60) days after such
decisions are issued.
Section 2.
APPLICATIONS FOR REGISTRATION FOR PROTECTION, AND PROCESSING APPLICATIONS
Article 174.
Applications for registration for protection
1. An application for registration for
protection [of a plant variety] shall contain the following documents:
(a) A declaration for registration made on
the stipulated sample form;
(b) Photos and a technical declaration made
on the stipulated sample form;
(c) Power of attorney, where the application
is filed through a representative;
(d) Documents evidencing the registration
right where the registrant is a transferee of the registration right;
(dd) Documents evidencing the priority right
where the application contains a claim for priority right;
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2. Applications for registration for
protection and source documents of transactions between an applicant for
registration and the State administrative body for rights to plant varieties
shall be madein Vietnamese, except for the following documents which may be
made in another language but shall be translated into Vietnamese at the request
of the State administrative body for rights to plant varieties:
(a) Power of attorney;
(b) Documents evidencing the registration
right;
(c) Documents evidencing the priority right;
(d) Other documents supporting the
application.
3. Documents evidencing the priority right of
an application for registration for protection of rights to a plant variety
shall comprise:
(a) Copies of the first application(s)
certified by the receiving agency;
(b) Documents on transfer or inheritance of
the priority right if such right is acquired from another person.
4. Each application shall be registered only
for the protection of one plant variety.
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1. An application for registration for
protection shall be received by the relevant State administrative body for
rights to plant varieties only when the application encloses all the documents
stipulated in clause 1 of article 174 of this Law.
2. The filing date of an application shall be
the date on which such application is received by the relevant State
administrative body for rights to plant varieties.
Article 176. Formal
examination of applications for registration for protection
1. The State administrative body for rights
to plant varieties shall conduct a formal examination of an application within
fifteen (15) days of receipt of such application, in order to determine the
validity of such application.
2. An application for registration for
protection shall be deemed invalid in the following cases:
(a) It fails to satisfy the formal
requirements as stipulated;
(b) The plant variety stated in such
application does not belong to a plant species on the list of protected plant
species;
(c) The application is filed by a person who
does not have the registration right, including where the registration right
belongs to many organizations or individuals but one or more of them do not
agree to register.
3. The State administrative body for rights
to plant varieties shall carry out the following procedures:
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(b) Notify the registrant of errors for
correction in the case stipulated in sub-clause (a) of clause 2
of this article, setting a time-limit of
thirty (30) days after the receipt of the notice for the correction of such
errors by the registrant;
(c) Notify the refusal to accept the
application where the registrant fails to correct errors or where the
registrant does not make a reasonable appeal against the notice stipulated in
sub-clause (b) of this clause;
(d) Notify the acceptance of the
application, requesting the registrant to supply samples of the plant variety
to the testing institution for performance of technical tests and procedures
stipulated in article 178 of this Law where such application is valid or where
the registrant has properly corrected the errors or made a justifiable
opposition to the notice stipulated in sub- clause (b) of this clause.
Article 177.
Publication of applications for registration for protection
1. Where an application is accepted as valid,
the State administrative body for rights to plant varieties shall publish such
valid application in a specialized magazine on plant varieties within ninety
(90) days from the date of acceptance of the application.
2. The published contents of an application
shall include the serial number and filing date of the application, the
representative agent (if any), the registrant, the owner, the denomination of
the plant variety, the name of the plant species, and the date on which the
application was accepted as valid.
Article 178.
Substantive examination of contents of applications for registration for
protection
1. The State administrative body for rights
to plant varieties shall conduct a substantive examination of applications
already accepted as valid. The examination shall cover:
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(b) Examination of results of technical
tests of the plant variety.
2. Technical tests means experiments
conducted to determine the distinctness, uniformity and stability of a plant
variety.
The technical test shall be conducted by the
competent State body or by an organization or individual capable of testing
plant varieties in compliance with regulations of the Ministry of Agriculture
and Rural Development.
The State administrative body for rights to
plant varieties may use previously obtained technical test results.
3. The time-limit for examination of
technical test results shall be ninety (90) days from the date of receipt of
such technical test results.
Article 179.
Amendment and supplementation of applications for registration for protection
1. Before the relevant State administrative
body for rights to plant varieties notifies a refusal to grant a plant variety
protection certificate or notifies its decision on grant of a plant variety
protection certificate, the registrant shall have the following rights:
(a) To amend or supplement the application
without changing the nature of the application;
(b) To request the recording of changes of
the registrant's name or address;
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2. The person requesting the conduct of the
procedures stipulated in clause 1 of this article must pay fees and charges.
Article 180.
Withdrawal of applications for registration for protection
1. Before the relevant State administrative
body for rights to plant varieties decides or refuses to grant a plant variety
protection certificate, the registrant may withdraw the application. A request
for withdrawal of an application must be made in writing.
2. From the moment a registrant withdraws an
application for registration for protection, all subsequent procedures related
to such application shall cease; and fees and charges already paid for
procedures which have not yet been carried out shall be refunded at the request
of the registrant.
Article 181. Opinions
of third parties on the grant of a plant variety protection certificate
As from the date of publication of an
application for registration for protection of a plant variety in a specialized
magazine on plant varieties up until before a decision on grant of a plant
variety protection certificate is issued, any third party shall be permitted to
provide an opinion to the State administrative body for rights to plant
varieties challenging the grant of such plant variety protection certificate.
An opinion must be made in writing and accompanied by documents and evidence to
support it.
Article 182. Refusal
to grant a plant variety protection certificate
An application for registration for
protection shall be rejected and the grant of a plant variety protection
certificate refused where the relevant plant variety fails to satisfy the
conditions stipulated in articles 176 and 178 of this Law. In a case of refusal
to grant a plant variety protection certificate, the State administrative body
for rights to plant varieties shall carry out the following procedures:
1. Notify the intended refusal to grant a
plant variety protection certificate, clearly stating the reasons therefor and
setting a time-limit for the registrant to correct errors or oppose the
intended refusal.
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3. Carry out the procedures stipulated in
article 183 of this Law where the registrant has corrected errors or made a
justifiable opposition to the intended refusal stipulated in clause 1 of this
article.
Article 183. Grant of
plant variety protection certificates
Where an application for registration for
protection is not rejected as provided for in article 182 of this Law and the
registrant pays the fee, the State administrative body for rights to plant
varieties shall issue a decision granting a plant variety protection
certificate and shall record it in the National Register of Protected Plant
Varieties.
Article 184
Complaints about the grant or the refusal to grant a plant variety protection
certificate
1. The registrant and any third party shall
have the right to lodge a complaint about the decision or the refusal to grant
a plant variety protection certificate.
2. The resolution of complaints about a
decision or refusal to grant a plant variety protection certificate shall
comply with the law on complaints and denunciations.
Chapter XIV
CONTENTS
OF AND LIMITATIONS ON RIGHTS TO PLANT VARIETIES
Section 1. CONTENTS
OF RIGHTS TO PLANT VARIETIES
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The breeder of a plant variety shall have the
following rights:
1. To have his or her name as the breeder
recorded in the plant variety protection certificate, the National Register of
Protected Plant Varieties, and published documents on the plant variety.
2. To receive remuneration pursuant to the
provisions of clause 1(a) of article 191 of this Law.
Article 186. Rights
of protection certificate holders
1. A protection certificate holder shall have
the right to exercise or authorize others to exercise the following rights to
reproductive materials of a protected plant variety:
(a) To conduct production or propagation;
(b) To process the reproductive materials
for the purpose of propagation;
(c) To offer the reproductive materials for
sale;
(d) To sell the reproductive materials or to
conduct other marketing activities;
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(e) To import the reproductive materials;
(g) To stock reproductive materials for the
purposes specified in sub-clauses (a) to (e) inclusive of this clause.
2. To prevent others from using the plant
variety according to the provisions of article 188 of this Law.
3. To bequeath or transfer the rights to the
plant variety according to the provisions of Chapter XV of this Law.
Article 187.
Extension of rights of protection certificate holders
The rights of a protection certificate holder
shall be extended to the following plant varieties:
1. Plant varieties which originate from the
protected plant variety, except where such protected plant variety itself
originates from another protected plant variety.
2. A plant variety shall be deemed to
originate from a protected plant variety if such plant variety still retains
the expression of the essential characteristics resulting from the genotype or
combination of genotypes of the protected variety, except for differences
resulting from an impact on the protected variety.
3. Plant varieties which are not definitely
distinct from the protected plant variety.
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Article 188. Acts
constituting an infringement of the right to a plant variety
The following acts shall be deemed an
infringement of the rights of a protection certificate holder:
1. Exploiting or using rights of such
protection certificate holder without his or her permission.
2. Using a plant variety denomination which
is identical or similar to a denomination protected for a plant variety of the
same species or a species closely linked to the protected plant variety.
3. Using a protected plant variety without
paying remuneration in accordance with article 189 of this Law.
Article 189.
Provisional rights to plant varieties
1. Provisional rights to a plant variety
means rights of the registrant for protection of such plant variety, which
arise from the date of publication of the application for registration for
protection until the date of grant of the plant variety protection certificate.
Where a plant variety protection certificate is not granted for such plant
variety, the protection registrant shall not [no longer] have these provisional
rights.
2. Where the registrant is aware of the fact
that the plant variety registered for protection is being used by another
person for commercial purposes, the plant variety protection registrant may
notify in writing such user of the fact that an application for registration
for protection of the plant variety has been filed, clearly specifying the
filing date and the date of publication of such application, so that the user
may either stop using or continue using the plant variety.
3. Where a user who has been notified in
accordance with clause 2 of this article continues using the plant variety, the
plant variety protection certificate holder shall have the right, upon the
grant of the certificate, to demand such plant variety user pay compensation
equivalent to the licensing price of such plant variety within the
corresponding use scope and duration.
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Article 190.
Limitations on rights of plant variety protection certificate holders
1. The following acts shall not be deemed an
infringement of the right to a protected plant variety:
(a) Using the plant variety for personal and
non-commercial purposes;
(b) Using the plant variety for
cross-breeding for scientific research purposes;
(c) Using the plant variety to create new
plant varieties distinct from the protected plant varieties;
(d) Using harvested materials of the
protected plant variety by an individual production household for
self-propagation and cultivation in the next season on the land area belonging
to such household.
2. The right to a plant variety shall not be
applicable to acts related to materials of the protected plant variety which
are sold on or otherwise brought onto the domestic or overseas market by the
protection certificate holder or his or her licensee, except for the following
acts:
(a) Acts relating to further propagation of
such plant variety;
(b) Acts relating to export of reproductive
materials of such plant variety to countries where the genus or species of such
plant variety is not protected, except where such materials are exported for
consumption purposes.
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1. A protection certificate holder shall have
the following obligations:
(a) To pay remuneration to the breeder of
the plant variety as agreed upon; in the absence of such agreement, the
remuneration level must comply with the provisions of law;
(b) To pay the fee for maintenance of
validity of the plant variety protection certificate in accordance with
regulations;
(c) To preserve the protected plant variety,
to supply reproductive materials of the protected plant variety to the State
administrative body for rights to plant varieties, and to maintain the
stability of the protected plant variety in accordance with regulations.
2. The breeder of a plant variety shall be
obliged to help the protection certificate holder to maintain reproductive
materials of the protected plant variety.
Chapter XV
TRANSFER
OF RIGHTS TO PLANT VARIETIES
Article 192.
Licensing of plant varieties
1. Licensing of a plant variety means
permission from the protection certificate holder to another person to conduct
one or more acts within the holder's right to use the plant variety.
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3. The licensing of a plant variety must be
effected in the form of a written contract.
4. A plant variety licensing contract must
not contain terms which unreasonably restrict the rights of the licensee,
particularly restrictions neither deriving from nor aimed at protecting the
rights of the licensor to the licensed plant variety.
Article 193. Rights
of parties to a licensing contract
1. The licensor shall have the right to
permit or not permit the licensee to sub-license to a third party.
2. The licensee shall have the following
rights:
(a) To license the use right to a third
party if so permitted by the licensor;
(b) To request the licensor to take
necessary and appropriate measures to prevent infringement by a third party
causing loss and damage to the licensee;
(c) To take necessary measures to prevent a
third party's infringements if, within a time-limit of three months from the
date of receipt of the request stipulated in sub-clause (b) above, the licensor
fails to act as requested.
Article 194.
Assignment of rights to plant varieties
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2. Where rights to a plant variety are under
joint ownership, the assignment of such rights to another person must be
consented to by all co-owners.
3. The assignment of rights to a plant
variety must be effected in the form of written contract.
Article 195. Bases
and conditions for compulsory licensing of plant varieties
1. In the following cases, the rights to use
a plant variety may be licensed to another organization or individual pursuant
to a decision of the competent State body defined in clause 1 of article 196 of
this Law without permission from the protection certificate holder or his or
her exclusive licensee (hereinafter referred to as the holder of the exclusive
right to use the plant variety):
(a) The use of such plant variety is for the
public interest and non-commercial purposes, or in service of national defence
and security, food security and nutrition of the people or to meet other urgent
social needs;
(b) The persons having the need and capacity
to use such plant variety fail to reach agreement with the holder of the
exclusive right to use such plant variety on the entry into a licensing
contract though they have made best efforts within a reasonable period of time
to negotiate a satisfactory price and commercial conditions;
(c) The holder of the exclusive right to use
such plant variety is deemed to have conducted anti- competitive practices
prohibited by the law on competition.
2. The holder of the exclusive right to use a
plant variety may request termination of the use right when the bases for
licensing stipulated in clause 1 of this article cease to exist and are
unlikely to recur, provided that termination of such use right will not be
prejudicial to the licensee.
3. The right to use a plant variety licensed
pursuant to a decision of a competent State body must satisfy the following
conditions:
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(b) Such licensed use right is limited
within a scope and duration sufficient to attain the licensing objective, and
is largely for the domestic market except for the case stipulated in sub-clause
(c) of clause 1 of this article;
(c) The licensee must not assign the use
right to another person, except where the assignment is made together with the
transfer of the business establishment of the licensee, and the licensee must
not sub-license to others;
(d) The licensee must pay adequate
compensation to the holder of the exclusive right to use the plant variety,
taking into account the economic value of such use right in each specific case
and in compliance with the compensation rate bracket promulgated by the
Government.
4. The Government shall specify cases of
compulsory licensing of plant varieties and the compensation rate bracket
stipulated in sub-clause (d) of clause 3 of this article.
Article 196.
Authority and procedures for licensing of plant varieties pursuant to
compulsory decisions
1. The Ministry of Agriculture and Rural
Development shall issue decisions on licensing of plant varieties in the
domains over which such Ministry exercises State management on the basis of
considering licensing requests for the cases stipulated in clause 1 of article
195 of this Law.
Ministries and ministerial equivalent bodies
shall, after consulting the opinion of the Ministry of Agriculture and Rural
Development, issue decisions on licensing of plant varieties in domains under
their respective management for the cases stipulated in clause 1 of article 195
of this Law.
2. Plant variety licensing decisions must set
the use scope and conditions in compliance with the provisions of clause 3 of
article 195 of this Law.
3. The State body competent to issue a
decision licensing a plant variety must promptly notify such decision to the
holder of the exclusive right to use the plant variety in question.
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5. The Government shall provide detailed
guidelines on the procedures for compulsory licensing of plant varieties as
stipulated in this article.
Article 197. Rights
of protection certificate holders in cases of compulsory licensing of plant
varieties
A protection certificate holder subject to
compulsorily licensing of the plant variety shall have the following rights:
1. To receive compensation corresponding to
the economic value of the licensed use right or equivalent to the licensing
price under a contract with an equivalent scope and term.
2. To request the State administrative body
for rights to plant varieties to amend, terminate validity of or invalidate the
compulsory licensing when the conditions for such compulsory licensing no
longer exist and when such amendment, termination of validity or invalidation
will not cause loss and damage to the licensees who derived their right from
the compulsory licensing.
PART V
PROTECTION
OF INTELLECTUAL PROPERTY RIGHTS
Chapter XVI
GENERAL
PROVISIONS ON PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
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1. An intellectual property right holder
shall have the right to apply the following measures to protect the
intellectual property rights of such holder:
(a) To apply technological measures to
prevent acts of infringement of its intellectual property rights;
(b) To request any organization or
individual who commits an act of infringement of the intellectual property
rights of the holder to terminate such act, make a public apology or
rectification, and pay damages;
(c) To request the competent State body to
deal with acts of infringement of its intellectual property rights in
accordance with the provisions of this Law and other relevant laws;
(d) To initiate a lawsuit at a court or a
claim at an arbitration centre to protect the legitimate rights and interests
of the holder.
2. Organizations and individuals who suffer
loss and damage caused by acts of infringement of intellectual property rights
or who discover acts of infringement of intellectual property rights which
cause loss and damage to consumers or society shall have the right to request
the competent State body to deal with such acts in accordance with the
provisions of this Law and other relevant laws.
3. Organizations and individuals who suffer
loss and damage or who are likely to suffer loss and damage caused by acts of
unfair competition shall have the right to request the competent State body to
apply the civil remedies stipulated in article 202 of this Law and the
administrative remedies stipulated in the law on competition.
Article 199. Remedies
when dealing with acts of infringement of intellectual property rights
1. Any organization or individual who commits
an act of infringement of the intellectual property rights of another
organization or individual shall, depending upon the nature and seriousness of
such infringement, be dealt with by the application of civil, administrative or
criminal remedies.
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Article 200.
Authority for dealing with acts of infringement of intellectual property rights
1. The following bodies shall, within the
scope of their respective duties and powers, have authority to deal with acts
of infringement of intellectual property rights: courts, inspectorates, market
management offices, customs offices, police offices and people's committees at
all levels.
2. The application of civil and criminal
remedies shall fall within the authority of courts. In necessary cases, courts
may apply provisional urgent measures stipulated by law.
3. The application of administrative remedies
shall fall within the authority of inspectorates, police offices, market
management offices, customs offices and people's committees at all levels. In
necessary cases, such bodies may apply preventive measures stipulated by law or
measures to secure payment of administrative fines stipulated by law.
4. The application of measures to control
intellectual property related imports and exports shall fall within the
authority of customs offices.
Article 201.
Intellectual property assessment
1. Intellectual property assessment means the
use by competent organizations or individuals of their professional knowledge
and expertise to make an assessment of and conclusions on matters related to
cases of infringement of intellectual property rights.
2. A State body competent to deal with acts
of infringement of intellectual property rights shall have the right to arrange
for an intellectual property assessment while dealing with a case for which
such body has accepted jurisdiction.
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4. The Government shall provide detailed guidelines
on activities being intellectual property assessment.
Chapter XVII
APPLICATION
OF CIVIL REMEDIES IN DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS
Article 202. Civil
remedies
Courts may apply the following civil remedies
in dealing with organizations and individuals who have committed acts of
infringement of intellectual property rights:
1. Compulsory termination of the infringing
acts.
2. Compulsory public apology and
rectification.
3. Compulsory performance of civil
obligations.
4. Compulsory payment of damages for loss.
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Article 203. Burden
of proof of litigants9
1. The plaintiff and the defendant to a
lawsuit regarding infringement of intellectual property rights shall bear the
burden of proof stipulated in article 79 of the Civil Procedure Code and this
article.
2. The plaintiff must prove that the
plaintiff is the intellectual property right holder by leading one of the following
forms of evidence:
(a) Copies of the copyright registration
certificate, related right registration certificate or protection title; or an
extract of the National Register of Copyright and Related Rights, the National
Register of Industrial Property or the National Register of Protected Plant
Varieties;
(b) Necessary evidence proving the basis for
establishment of copyright or related rights in the absence of a copyright
registration certificate, related right registration certificate; necessary evidence
proving the right to a trade secret, trade name or well known mark;
(c) Copy of the license contract for an
intellectual property object where the use right is licensed pursuant to a
contract.
3. The plaintiff shall bear the burden of
proving acts of infringement of intellectual property rights or acts of unfair
competition.
4. In a lawsuit regarding infringement of the
right to an invention which is a production process, the defendant shall bear
the burden of proving that the product of the defendant was produced by a
process other than the protected process in the following cases:
(a) The product made by the protected
process is new;
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5. Where a party to a lawsuit regarding
infringement of intellectual property rights can prove that appropriate
evidence proving such party's claim is under the control of the other party and
is therefore inaccessible, the former party shall have the right to request the
court to compel the latter party to produce such evidence.
6. When making a claim for compensation for
damages for loss, the plaintiff must prove the plaintiff's actual loss and
damage and specify the basis for determining the amount of compensation for
damages in accordance with article 205 of this Law.
Article 204.
Principles for determining loss and damage caused by an infringement of
intellectual property rights
1. Loss and damage caused by acts of
infringement of industrial property rights shall comprise:
(a) Material loss and damage including
property loss, decrease in income and profit, loss of business opportunity, and
reasonable expenses for mitigating and remedying the material damage;
(b) Spiritual loss and damage including
damage to honour, dignity, prestige, reputation and other spiritual loss caused
to authors of literary, artistic and scientific works; to performers; to
authors of inventions, industrial designs, layout designs; and to breeders of
plant varieties.
2. The extent of damage shall be determined
on the basis of actual losses suffered by intellectual property right holders due
to acts of infringement of intellectual property rights.
Article 205. Bases
for determining amount of damages for loss and damage caused by an infringement
of intellectual property rights
1. Where the plaintiff proves that an act of
infringement of intellectual property rights has caused the plaintiff material
damage, the plaintiff shall have the right to request the court to decide the
amount of damages on one of the following bases:
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(b) The price of the licensing of an
intellectual property object on the assumption that the defendant was licensed
by the plaintiff to use that object under a license contract within a scope
corresponding to the act of infringement which was committed;
(c) Where it is impossible to determine the
amount of damages for material damage on the bases stipulated in sub-clause (a)
and (b) of this clause, such amount of damages shall be set by the court
depending on the extent of loss but must not exceed five hundred million
(500,000,000) dong.
2. Where a plaintiff proves that the act of
infringement of intellectual property rights caused the plaintiff spiritual
damage, the plaintiff shall have the right to request the court to decide on
the amount of damages depending on the extent of loss, to range from five million
(5,000,000) to fifty million (50,000,000) dong.
3. In addition to the amount of damages
stipulated in clauses 1 and 2 of this article, an industrial property right
holder shall also have the right to request the court to compel the
organization or individual who have committed the act of infringement of
industrial property rights to pay reasonable costs of engaging a lawyer.
Article 206. Right to
request the court to apply provisional urgent measures
1. Upon or after the initiation of a lawsuit,
an intellectual property right holder shall have the right to request the court
to apply provisional measures in the following cases:
(a) There is a danger of irreparable damage
to such intellectual property right holder;
(b) Goods suspected of infringement of
intellectual property rights or evidence related to the act of infringement of
industrial property rights are likely to be dispersed or destroyed unless they
are protected in time.
2. A court may make a decision applying
provisional urgent measures at the request of an industrial property right
holder as stipulated in clause 1 of this article before hearing the party
subject to such measures.
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1. The following provisional urgent measures
may be applied to goods suspected of infringing intellectual property rights or
to raw materials and materials, or facilities of production or trading of such
goods:
(a) Retention;
(b) Seizure;
(c) Sealing; prohibiting any alteration of
the original state; prohibiting any movement;
(d) Prohibiting transfer of ownership.
2. Other provisional urgent measures may be
applied in accordance with the Civil Procedure Code.
Article 208.
Obligations of applicants for provisional urgent measures
1. Applicants for provisional urgent measures
shall bear the burden of proving their right provided for in clause 1 of
article 206 of this Law by producing the documents and evidence stipulated in
clause 2 of article 203 of this Law.
2. An applicant for provisional urgent
measures shall be obliged to pay compensation for loss caused to a person
subject to such measures in a case where the latter is found not to have
infringed industrial property rights. To secure the performance of this
obligation, an applicant for provisional urgent measures shall deposit security
in one of the following forms:
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(b) A deed of guarantee issued by a bank or
other credit institution.
Article 209.
Cancellation of application of provisional urgent measures
1. The court shall issue a decision
cancelling provisional urgent measures previously applied in the case
stipulated in clause 1 of article 122 of the Civil Procedure Code or in a case
where the person subject to such measures proves that such application was not
well founded.
2. In a case of cancellation of a provisional
urgent measure, the court shall consider refunding the applicant the security
stipulated in clause 2 of article 208 of this Law. Where a request for the
application of a provisional urgent measure was not well founded thus causing
loss to the person subject to such measure, the court shall compel the
applicant to pay compensation for such loss.
Article 210.
Authority and procedures for application of provisional urgent measures
The authority and procedures for application
of provisional urgent measures shall be implemented in accordance with the
provisions of Chapter VIII, Part One of the Civil Procedure Code.
Chapter XVIII
DEALING
WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF
ADMINISTRATIVE AND CRIMINAL MEASURES; CONTROL OF INTELLECTUAL PROPERTY RELATED
IMPORTS AND EXPORTS
Section 1. DEALING
WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF
ADMINISTRATIVE AND CRIMINAL MEASURES
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1. The following acts of infringement of
industrial property rights shall be subject to administrative penalties:
(a) Acts of infringement of intellectual
property rights which cause loss and damage to consumers or society;
(b) Failure to terminate an act of infringement
of intellectual property rights although the intellectual property right holder
has issued a written notice requesting termination of such act;
(c) Producing, importing, transporting or
trading in intellectual property counterfeit goods stipulated in article 213 of
this Law, or assigning others to do so;
(d) Producing, importing, transporting or
trading in articles bearing a mark or geographical indication which is
identical or confusingly similar to a protected mark or geographical
indication, or assigning others to do so.
2. The Government shall specify acts of
infringement of intellectual property rights which shall be subject to
administrative penalties, the forms and levels of penalties, and the procedures
for applying same.
3. Any organization or individual who commits
an act of unfair competition in intellectual property shall be subject to an
administrative penalty in accordance with the law on competition.
Article 212. Acts of
infringement of industrial property rights which shall be subject to criminal
penalties
Any individual who commits an act of
infringement of intellectual property rights involving a criminal element shall
be criminally prosecuted in accordance with the criminal law.
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1. Intellectual property counterfeit goods
regulated in this Law comprise goods bearing counterfeit marks and goods
bearing counterfeit geographical indications (hereinafter referred to as
counterfeit mark goods) defined in clause 2 of this article and pirated goods
defined in clause 3 of this article.
2. Counterfeit mark goods means goods or
their packages bearing a mark or sign which is identical with or
indistinguishable from a mark or geographical indication currently protected
for those very goods, without permission from the mark owner or organization
managing the geographical indication.
3. Pirated goods means copies made without
permission from the copyright holder or related right holder.
Article 214. Forms of
administrative penalty and measures for remedying consequences
Any organization or individual who commits an
act of infringement of intellectual property rights defined in clause 1 of
article 211 of this Law shall be compelled to terminate such act and shall be
subject to one of the following principal penalties:
(a) A caution;
(b) A monetary fine.
2. Any organization or individual who
infringes intellectual property rights may, depending on the nature and
seriousness of the infringement, also be subject to one of the following
additional penalties:
(a) Confiscation of intellectual property
counterfeit goods, raw materials and materials, and facilities used mainly for
production or trading of such intellectual property counterfeit goods;
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3. In addition to the penalties stipulated in
clauses 1 and 2 of this article, any organization or individual who infringes
intellectual property rights may also be subject to one or more of the following
measures for remedying consequences:
(a) Compulsory destruction, distribution or
use for non-commercial purposes of intellectual property counterfeit goods as
well as raw materials and materials, and facilities used mainly for production
or trading of such intellectual property counterfeit goods, provided that such
destruction, distribution or use will not affect the exploitation of rights by
intellectual property right holders;
(b) Compulsory transportation out of the
territory of Vietnam of transit goods infringing intellectual property rights
or compulsory re-export of intellectual property counterfeit goods and imported
materials and raw materials, and facilities used mainly for production or
trading of such intellectual property counterfeit goods after the infringing
elements have been removed from such goods.
4. The amount of the monetary fine stipulated
in sub-clause (b) of clause 1 of this article shall be set at least equal to
the value of the detected infringing goods but shall not exceed five times such
value.
The Government shall issue detailed
regulations on the method of determining the value of infringing goods.
Article 215.
Preventive measures and/or measures to secure enforcement of administrative
penalties
1. In the following cases, organizations and
individuals shall have the right to request the competent body to apply
preventive measures and/or measures to secure enforcement of the administrative
penalties stipulated in clause 2 of this article:
(a) An act of infringement of intellectual
property rights is likely to cause serious loss and damage to consumers or
society;
(b) Material evidence of the infringement is
likely to be dispersed or there are indications that the offender will evade
responsibility;
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2. Preventive measures and/or measures to
secure enforcement of administrative penalties which may be applied in
accordance with administrative procedures to acts of infringement of
intellectual property rights shall comprise:
(a) Temporary detention of persons;
(b) Temporary custody of infringing goods,
material evidence and facilities;
(c) Body searches;
(d) Searches of means of transport and
objects; searches of places where infringing goods, material evidence and
facilities are hidden;
(dd) Other administrative preventive
measures in accordance with the law on dealing with administrative breaches.
Section 2. CONTROL OF
INTELLECTUAL PROPERTY RELATED IMPORTS AND EXPORTS
Article 216. Measures
to control intellectual property related imports and exports
1. Measures to control intellectual property
related imports and exports shall comprise:
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(b) Inspection and supervision to detect
goods showing signs of infringing intellectual property rights.
2. Suspension of customs procedures for goods
suspected of infringing intellectual property rights means a measure taken at
the request of an intellectual property right holder in order to collect
information and evidence on the goods consignment in question so that the
intellectual property right holder may exercise the right to request that the
infringing act be dealt with and to request the application of provisional
urgent measures, preventive measures and/or measures to secure enforcement of
administrative penalties.
3. Inspection and supervision to detect goods
showing signs of infringing intellectual property rights means a measure taken
at the request of an intellectual property right holder in order to collect
information for the exercise of the right to request suspension of customs
procedures.
4. If any intellectual property counterfeit
goods within the meaning of article 213 of this Law are found during the course
of application of the measures stipulated in clauses 2 and 3 of this article,
the customs office shall have the right and responsibility to apply
administrative remedies to deal with such goods in accordance with articles 214
and 215 of this Law.
Article 217.
Obligations of applicants for measures to control intellectual property related
imports and exports
1. An applicant for application of a measure
to control intellectual property related imports or exports shall have the
following obligations:
(a) To prove that the applicant is an
intellectual property right holder by producing the documents and evidence
stipulated in clause 2 of article 203 of this Law;
(b) To supply information sufficient to
identify goods suspected of infringing intellectual property rights or to
detect goods showing signs of infringing intellectual property rights;
(c) To file a written request with the
customs office and to the pay fees and charges stipulated by law;
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2. In order to secure the performance of the
obligation stipulated in sub-clause (d) of clause 1 of this article, an
applicant shall deposit security in one of the following forms:
(a) A sum of money equal to twenty (20) per
cent of the value of the goods consignment subject to the application of the
measure of suspension of customs procedures, or at least twenty million
(20,000,000) dong where it is impossible to value such goods;
(b) A deed of guarantee issued by a bank or
other credit institution.
Article 218.
Procedures for application of the measure of suspension of customs procedures
1. When an applicant for the suspension of
customs procedures has fulfilled the obligations stipulated in article 217 of
this Law, the customs office shall issue a decision suspending customs
procedures with regard to the goods consignment in question.
2. The duration of suspension of customs
procedures shall be ten (10) working days from the date of issuance of the
suspension decision. Where the applicant has justifiable reasons, this duration
may be extended but must not exceed twenty (20) working days, provided that the
applicant deposits the security stipulated in clause 2 of article 217 of this
Law.
3. Upon expiry of the duration stipulated in
clause 2 of this article, if the applicant does not initiate civil proceedings
and the customs office does not issue a decision accepting jurisdiction to deal
with the case in accordance with administrative procedures as an administrative
breach by the importer or exporter of the goods, then the customs office shall
have the following responsibilities:
(a) To continue customs procedures for the
goods consignment in question;
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(c) To refund to the applicant the remaining
security amount after the obligation to pay compensation and expenses
stipulated in sub-clause (b) above has been fulfilled.
Article 219.
Inspection and supervision to detect goods showing signs of infringement of
intellectual property rights
Where an intellectual property right holder
requests inspection and supervision to detect goods showing signs of
infringement of intellectual property rights and the customs office then finds
such a goods consignment, the customs office shall promptly notify the
applicant thereof. If the applicant does not request the suspension of customs
procedures with regard to the offending goods consignment and the customs
office does not issue a decision on consideration of application of the
administrative penalties stipulated in articles 214 and 215 of this Law within
three working days from the date of notification, then the customs office must
continue carrying out customs procedures for the goods consignment in question.
PART VI
IMPLEMENTING
PROVISIONS
Article 220.
Transitional provisions
1. Copyright and related rights protected
pursuant to legal instruments which were effective before the effective date of
this Law shall continue to be protected pursuant to this Law if they remain
within the term of protection on the effective date of this Law.
2. Applications for registration of
copyright, related rights, inventions, utility solutions, industrial designs,
marks, appellations of origin of goods, layout designs or plant varieties which
were filed with the competent bodies before the effective date of this Law
shall continue to be processed in accordance with the provisions of the legal
instruments effective at the time of filing of such applications.
3. All rights and obligations conferred by
protection titles granted according to the provisions of law effective before
the effective date of this Law and procedures for maintenance, renewal,
amendment, licensing, ownership assignment and settlement of disputes relating
to such protection titles shall be subject to the provisions of this Law,
except for grounds for invalidation of protection titles which shall only be
subject to the provisions of legal documents effective at the time of grant of
such protection titles.
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5. From the effective date of this Law,
geographical indications including those protected under the Decree mentioned
in clause 4 of this article shall only be protected after registration in
accordance with the provisions of this Law.
Article 221.
Effectiveness
This Law shall be of full force and effect as
of 1 July 2006.
Article 222.
Implementing guidelines
The Government and the Supreme People's Court
shall provide detailed regulations and guidelines for the implementation of
this Law.
This Law was passed by Legislature XI of the
National Assembly of the Socialist Republic of Vietnam at its 8th session on 29
November 2005.
CHAIRMAN OF THE
NATIONAL ASSEMBLY
Nguyen Van An
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