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GOVERNMENT OF VIETNAM
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SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No. 65/2023/ND-CP
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Hanoi, August 23, 2023
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DECREE
ELABORATION ON SEVERAL ARTICLES AND IMPLEMENTATION MEASURES
OF THE LAW ON INTELLECTUAL PROPERTY REGARDING INDUSTRIAL PROPERTY RIGHTS,
PROTECTION OF INDUSTRIAL PROPERTY RIGHTS, RIGHTS TO PLANT VARIETIES, AND STATE
MANAGEMENT OF INTELLECTUAL PROPERTY
Pursuant to the Law on
Organization of the Government of Vietnam dated June 19, 2015; the Law on
Amendments to the Law on Organization of the Government of Vietnam and the Law
on Organization of the Local Government of Vietnam dated November 22, 2019;
Pursuant to the Law on
Intellectual Property dated November 29, 2005; the Law on amendments to the Law
on Intellectual Property dated June 19, 2009; the Law on amendments to the Law
on Insurance Business and the Law on Intellectual Property dated June 14, 2019,
and the Law on amendments to the Law on Intellectual Property dated June 16,
2022;
At the request of the
Minister of Science and Technology of Vietnam;
The Government of
Vietnam hereby promulgates the Decree elaborating on several articles and
implementation measures of the Law on Intellectual Property regarding industrial
property rights, protection of industrial property rights, rights to plant
varieties, and state management of intellectual property.
Part one
GENERAL PROVISIONS
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This Decree provides for
the elaboration and implementation measures of regulations of the Law on
Intellectual Property on:
1. Right establishment,
right holders, contents, and limitations of industrial property rights,
transfer of industrial property rights, industrial property representatives,
and measures to promote industrial property.
2. Identification of acts
of infringement, nature, and severity of industrial property right
infringements, rights to plant varieties, identification of damage, request and
settlement of infringement handling requests, handling of infringements upon
industrial property rights and rights to plant varieties, control of imports
and exports concerning industrial property rights and rights to plant
varieties, assessment of industrial property rights and rights to plant
varieties, and state management of intellectual property.
Article 2. Regulated
entities
1. Vietnamese and foreign
organizations and individuals meeting the requirements for grant of protection
of industrial property rights in Vietnam according to international treaties to
which Vietnam is a signatory.
2. Organizations and
individuals that have granted protection of industrial property rights and/or
rights to plant varieties or have acts of infringement on industrial property
rights and/or rights to plant varieties as prescribed by the Law on
Intellectual Property.
3. Other relevant
organizations and individuals.
Article 3.
Interpretation of terms
For the purpose of this
Decree, the following terms shall be construed as follows:
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2. “Applicants” are
organizations and/or individuals applying for the establishment of industrial
property rights or organizations and individuals applying for the handling of
acts of infringement on industrial property rights and/or rights to plant
varieties.
3. “Paris Convention”
means the Paris Convention for the Protection of Industrial Property dated
1883, amended in 1967 and 1979.
4. “PCT Treaty” means the
Patent Cooperation Treaty dated 1970, amended in 1984 and 2001.
5. “Madrid Agreement”
means the Madrid Agreement Concerning the International Registration of Marks
dated 1891, amended in 1979.
6. “Madrid Protocol” means
the Madrid Protocol Concerning Madrid Treaty dated 1989, amended in 2006 and
2007.
7. “Hague Agreement”
means the Hague Agreement Concerning the International Deposit of Industrial
Designs and its Document dated 1999.
8. “PCT application”
means an invention registration application submitted under the PCT Treaty.
9. “PCT application
designating or selecting Vietnam” means a PCT application submitted at any
member of the PCT Treaty, including Vietnam, specifying Vietnam is the
designated or selected country.
10. “PCT national phase
application” means a PCT application designating or selecting Vietnam submitted
to an industrial property right authority.
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12. “Madrid application”
means an application for the international registration of marks submitted
under the Madrid Agreement or Madrid Protocol.
13. “Madrid application
originating from Vietnam” means a Madrid application requesting a grant of
protection to marks at other members of the Madrid Treaty or Madrid Protocol
submitted from Vietnam.
14. “Madrid application
designating Vietnam” means a Madrid application requesting a grant of
protection to marks in Vietnam, originating from other members of the Madrid
Treaty or Madrid Protocol.
15. “Hague application”
means an application for the international registration of industrial designs
submitted under the Hague Agreement.
16. “Hague application
designating Vietnam” means a Hague application requesting a grant of protection
to industrial designs in Vietnam, originating from any member of the Hague
Agreement, including Vietnam.
17. “Hague application
originating from Vietnam” means a Hague application submitted from Vietnam
requesting a grant of protection of industrial designs at any member of the
Hague Agreement, including Vietnam.
18. “International
Office” means the International Office of the World Intellectual Property
Organization (WIPO).
19. “Acts of
infringement” are acts of infringement on industrial property rights and/or
rights to plant varieties.
20. “Handling of
infringements” means the handling of infringements on industrial property
rights and/or rights to plant varieties.
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22. “Infringement
factors” are factors created from infringements on industrial property rights
and/or rights to plant varieties.
23. “Act subject to
examination” means an act that is suspected and examined to determine whether
it is an infringement or not.
24. “Subjects under
examination” are subjects suspected and examined to determine whether they are violators
of industrial property rights and/or rights to plant varieties or not.
25. “Application for
infringement handling” means an application for the adoption of measures to
handle acts of infringement.
26. “Law on Intellectual
Property” means the Law on Intellectual Property dated November 29, 2005,
amended by the Law on amendments to the Law on Intellectual Property dated June
19, 2009, the Law on amendments to the Law on Insurance Business and the Law on
Intellectual Property dated June 14, 2019, and the Law on amendments to the Law
on Intellectual Property dated June 16, 2022.
Part two
STATE MANAGEMENT OF INTELLECTUAL PROPERTY
Article 4. Uniform
principle of state management of intellectual property
The organization of the state
management of intellectual property prescribed in Article 10 and Article 11 of
the Law on Intellectual Property shall be based on the uniform principles of
objectives, contents, and measures under the general directive of the
Government of Vietnam with specific assignment of responsibilities and strict
cooperation between ministries, ministerial agencies, governmental agencies,
and People's Committees of all levels.
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1. The Ministry of
Science and Technology of Vietnam shall take charge and cooperate with the
Ministry of Culture, Sports and Tourism of Vietnam, the Ministry of Agriculture
and Rural Development of Vietnam, ministerial agencies, governmental agencies,
People’s Committees of all levels, and relevant agencies in performing the
following activities to ensure the uniform state management of intellectual
property:
a) Developing,
promulgating, and organizing the implementation of general strategies,
policies, and legal documents on the protection of intellectual property rights
or presenting them to competent authorities for promulgation.
b) Monitoring, urging,
and inspecting the implementation of general tasks of industrial property
assigned to ministries, ministerial agencies, governmental agencies, and
People’s Committees of all levels by the National Assembly of Vietnam or the
Government of Vietnam as prescribed in Article 10 and Article 11 of the Law on
Intellectual Property and this Decree;
c) Summarizing,
assessing, and reporting on the performance of the protection of intellectual
property rights to the Government of Vietnam, proposing specific policies and
measures to improve the efficiency of the intellectual property system, and ensuring
the uniform state management of intellectual property;
d) Developing and
directing the implementation of general programs and schemes for the protection
of intellectual property rights, measures to cooperate between intellectual
property right protection authorities;
dd) Negotiating and
concluding the participation in and implementation of general international
treaties on intellectual property; proposing the settlement of national
disputes concerning intellectual property in international relationships;
e) Developing the
database system and establishing the national information network on state
management of intellectual property and protection of intellectual property
rights.
2. The Ministry of
Culture, Sports and Tourism of Vietnam shall cooperate with the Ministry of
Science and Technology of Vietnam in performing tasks prescribed in Clause 1 of
this Article; ensure the implementation of state management of copyrights and
related rights and ensure that policies, strategies, and legal documents on
copyrights and related rights are in uniformity with general policies,
strategies, and legal documents on intellectual property; periodically or
irregularly provide information on state management and protection of
intellectual property rights for the Ministry of Science and Technology of
Vietnam for cooperation in handling arising issues and summarization for report
to the Prime Minister of Vietnam.
3. The Ministry of
Agriculture and Rural Development of Vietnam shall cooperate with the Ministry
of Science and Technology in performing tasks prescribed in Clause 1 of this
Article; ensure the implementation of state management of rights to plant
varieties and ensure that policies, strategies, and legal documents on the
protection of rights to plant varieties are in uniformity with general
policies, strategies, and legal documents on intellectual property;
periodically or irregularly provide information on state management and
protection of intellectual property rights for the Ministry of Science and Technology
of Vietnam for cooperation in handling arising issues and summarization for
report to the Prime Minister of Vietnam.
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The Ministry of Science
and Technology of Vietnam shall:
1. Develop and organize
the implementation of strategies and policies on the protection of industrial
property rights.
2. Promulgate and
organize the implementation of legal documents on industrial property or
present them to competent authorities for promulgation.
3. Organize the system of
agencies performing the state management of industrial property.
4. Provide professional
guidance, training, and advanced training in industrial property.
5. Organize the establishment
of industrial property rights, registration of contracts of transfer of
industrial property rights, and performance of other procedures concerning
protection titles of industrial property rights.
6. Exercise rights to
compulsory transfer of invention licensing rights according to Article 147 of
the Law on Intellectual Property.
7. Take charge or
cooperate in implementing measures to protect legitimate rights and benefits of
organizations, individuals, the State, and society regarding industrial property.
8. Manage the industrial
property assessment and the issuance of industrial property assessor cards.
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10. Organize informative
and statistical operations on industrial property; manage and organize
operations concerning national databases on industrial property.
11. Organize the
education, dissemination, and universalization of knowledge, policies, and laws
on industrial property.
12. Manage the activities
of industrial property representatives; issue practicing certificates of
industrial property representative services.
13. Perform international
cooperation in industrial property; propose the settlement of disputes between
Vietnam and other countries over industrial property.
14. Perform other tasks
assigned by the Government of Vietnam.
Article 7. Cooperation
in state management of intellectual property
1. The Ministry of Science
and Technology of Vietnam shall take charge and cooperate with the Ministry of
Culture, Sports and Tourism of Vietnam, the Ministry of Agriculture and Rural
Development of Vietnam, and relevant agencies in protecting, inspecting, and
handling infringements on intellectual property rights.
2. Intellectual property
authorities shall provide adequate and timely answers for requests from
authorities of intellectual property right infringement handling.
3. Intellectual property
authorities shall participate in inspectorates or inspection delegations upon
requests to serve the inspection.
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Ministries, ministerial
agencies, governmental agencies, and People’s Committees of provinces and
centrally affiliated cities shall, within their scope of functions and tasks,
cooperate with the Ministry of Science and Technology of Vietnam, the Ministry
of Culture, Sports and Tourism of Vietnam, and The Ministry of Agriculture and
Rural Development of Vietnam in:
1. Performing tasks
prescribed in Clause 1 Article 5 of this Decree and directly performing
specific tasks assigned by the Government of Vietnam.
2. Ensuring the local
implementation of policies and laws on intellectual property in conformity and
compliance with the Law on Intellectual Property and its guiding documents.
3. Periodically or
irregularly provide information on state management and protection of
intellectual property rights for the Ministry of Science and Technology of
Vietnam for cooperation in handling arising issues and summarization for report
to the Prime Minister of Vietnam.
Article 9.
Responsibilities of ministries, ministerial agencies, governmental agencies,
and People’s Committees of provinces and centrally affiliated cities regarding
industrial property
1. Regarding the state
management of local industrial property, People’s Committees of the provinces
and centrally affiliated cities shall:
a) Organize the
implementation of policies and laws on industrial property;
b) Develop, issue, and
organize the implementation of local regulations on industrial property;
c) Organize the
management system of local industrial property and perform measures to improve
the efficiency of such a system;
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dd) Guide and support
organizations and individuals in performing industrial property procedures;
e) Cooperate with
relevant agencies in protecting industrial property rights and handling
violations against industrial property laws;
e) Inspecting compliance
with industrial property laws and settling complaints and denunciations of
local industrial property;
h) Manage local
geographical indications, including location names and other signs indicating
the geographical origin of local specialties;
i) Conduct international
cooperation in local industrial property.
2. Ministries,
ministerial agencies, and governmental agencies shall organize and direct the
implementation of industrial property laws and manage the subject matters of
industrial property under their management.
Part three
INDUSTRIAL PROPERTY RIGHTS
Chapter I
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Section 1. GENERAL
REGULATIONS ON ESTABLISHMENT OF INDUSTRIAL PROPERTY RIGHTS
Article 10. Grounds
and procedures for establishing industrial property rights
1. Industrial property
rights to an invention, layout design, industrial design, mark, and
geographical indication shall be established based on a protection grant
decision of the industrial property right authority issued to the applicant for
such subjects according to Chapter VII, Chapter VIII, and Chapter IX of the Law
on Intellectual Property and Appendix I of this Decree.
Industrial property
rights to an internationally registered mark under the Madrid Agreement and
Madrid Protocol shall be established based on a decision to grant protection to
such a mark issued by an industrial property right authority.
Industrial property
rights to an internationally registered industrial design under the Hague
Agreement shall be established based on a decision to grant protection to such
an industrial design issued by an industrial property right authority.
2. Industrial property
rights to a well-known mark shall be established based on the actual use
practice of such a mark according to Article 75 of the Law on Intellectual
Property without having to carry out registration procedures. When using the
rights and handling a dispute over the rights to the well-known mark, the owner
shall prove his/her rights with evidence prescribed in Point c Clause 5 Article
91 of this Decree.
3. Industrial property
rights to a trade name shall be established based on the actual legal use of
such a name corresponding to the area (territory) and business line without
having to carry out registration procedures. When using the rights and handling
a dispute over the rights to the trade name, the owner shall prove his/her
rights via evidence prescribed in Point b Clause 5 Article 91 of this Decree.
4. Industrial property
rights to a business secret shall be established based on the financial,
intellectual investment, or other legal methods to find out, create, or achieve
information and information security forming such a business secret without
having to carry out registration procedures. When using the rights and handling
a dispute over the right to the business secret, the owner shall prove his/her
right via evidence prescribed in Point a Clause 5 Article 91 of this Decree.
5. Anti-unfair
competition rights shall be established based on the actual anti-unfair
competition activities without having to carry out registration procedures at
industrial property right authorities. When using the anti-unfair competition
rights, holders shall prove their rights via evidence specifying subjects,
fields, territories, and business time concerning competition.
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1. If any international
treaty concerning industrial property rights to which Vietnam is a signatory
stipulates the recognition and protection of industrial property rights of
organizations and/or individuals of members according to Article 6 of the Law
on Intellectual Property, such industrial property rights shall be recognized
and protected in Vietnam.
Industrial property
rights shall be protected within a scope and period appropriate to
international treaties. Registration procedures according to the Law on
Intellectual Property are not required.
2. The Ministry of
Science and Technology of Vietnam shall disclose every essential information
concerning industrial property rights recognized and protected in Vietnam under
international treaties.
Article 12. Priority
rights of registration applications for inventions, industrial designs, or
marks
Priority rights of
registration applications for inventions, industrial designs, or marks
prescribed in Article 91 of the Law on Intellectual Property shall be applied
as follows:
1. If the applicant
wishes to have priority rights according to the Paris Convention, his/her
applicant shall be accepted if the following requirements are met:
a) The applicant is a
Vietnamese citizen or a citizen of a member country of the Paris Convention or
a member of another country residing or having a production or business
facility in Vietnam or any member country of the Paris Convention;
b) The first application
has been submitted in Vietnam or any member country of the Paris Convention,
containing content corresponding to the request for priority rights of the
registration application for inventions, industrial designs, or marks;
c) The registration
application is submitted within the following period since the submission of
the first application: 6 months for registration applications for industrial
designs or marks and 12 months for registration applications for inventions;
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dd) The applicant
adequately pays fees for priority rights.
2. The first application
submitted in Vietnam or any member country of the Paris Convention according to
Point b Clause 1 of this Article is the application eligible for confirming its
submission date at any concerned member country, regardless of its processing
results.
3. If the applicant
wishes to have priority rights under another international treaty, his/her
request will be accepted if he/she meets the requirements for priority rights
prescribed in such an international treaty.
Article 13. Rights to
register industrial property under international treaties
1. Foreign organizations
and individuals meeting the requirements for protection of industrial property
rights in Vietnam according to Article 2 of this Decree may apply for
industrial property in Vietnam under international treaties on or related to
procedures for submitting international applications.
2. Vietnamese
organizations and individuals may submit international registration
applications for industrial property to request protection of their rights in
Vietnam if prescribed by international treaties.
Article 14. Security
control of inventions
1. Regarding technical
inventions affecting national defense and security listed in Appendix VII of
this Decree created in Vietnam and subject to registration rights of
individuals who are Vietnamese citizens residing in Vietnam or organizations
established under the law of Vietnam, the control procedure shall be performed
before the industrial property right authority discloses such registration
applications to meet the requirements for overseas submission of invention
registration applications according to Clause 1 Article 89a of the Law on
Intellectual Property.
2. The Ministry of
National Defense of Vietnam and the Ministry of Public Security of Vietnam
shall designate agencies receiving and processing requests for invention
identification in invention registration applications in technical fields
affecting national defense and security as prescribed in Clause 3 of this
Article.
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4. Regarding the
invention registration application prescribed in Clause 3 of this Article, the
industrial property right authority shall notify the applicant of the
suspension of the appraisal procedure of the application for the performance of
the security control procedure under Article 89a of the Law on Intellectual
Property within 7 working days after submitting the requesting document to the
agency designated by the Ministry of National Defense of Vietnam and/or
Ministry of Public Security of Vietnam.
5. Within 20 days from
the date of receiving the notification of the agency designated by the Ministry
of National Defense of Vietnam and/or Ministry of Public Security of Vietnam on
the subject in the invention registration application is subject to technical
fields affecting national defense and security according to Clause 3 of this
Article, the industrial property right authority shall notify the applicant of
such information while requesting the applicant to perform procedures for state
secret protection according to laws within 1 month after receiving the
notification and the following procedures:
a) Regarding an invention
registration application submitted under the national format: if the applicant
submits the mentioned application under procedures appropriate to state secret
protection laws, the application shall be continued to be processed under laws.
If the applicant fails to comply with state secret protection laws when
submitting the mentioned application within a prescribed period, such
application is considered to be withdrawn and shall be destroyed by the
industrial property right authority under state secret protection laws,
excluding cases where the applicant has evidence proving that the invention is
not a state secret.
b) Regarding a PCT
application originating from Vietnam submitted through the industrial property
right authority: such application shall be destroyed according to state secret
protection laws, and Point e Clause 1 Article 20 of this Decree shall be
applied, excluding cases where the applicant has evidence proving that the
invention is not a state secret.
6. The industrial property
right authority shall continue the processing of the application in the
following cases:
a) The industrial
property right authority does not receive any notification from the agency
designated by the Ministry of National Defense of Vietnam and/or Ministry of
Public Security of Vietnam after the 3-month period prescribed in Clause 3 of
this Article.
b) The agency designated
by the Ministry of National Defense of Vietnam and/or Ministry of Public
Security of Vietnam notifies that the invention in the application is not
subject to technical fields affecting national defense and security.
The industrial property
right authority shall notify the applicant of the continuation of the
processing of the application within 1 month from the time prescribed in Point
a of this Clause or the the date of receiving the notification prescribed in
Point b of this Clause.
7. Regarding an
application subject to cases prescribed in Clause 6 of this Article, the
applicant may submit such registration application overseas.
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1. The methods of
calculating time limits in industrial property shall comply with regulations on
time limits of the Civil Code.
2. The time limit for an
applicant and related parties to submit, amend, and supplement documents or
provide suggestions may be extended once equal to the time limit prescribed in
the notification of the industrial property right authority, providing that the
petitioner submits the document requesting the extension before the end date of
the prescribed time limit and pays fees for the extension as per regulation.
3. The time limit does
not include when there is any force majeure or objective obstacle making the
organization or individual fail to perform their concerned tasks and rights
within the scope of the time limit if such an organization or individual
requests and has reasonable evidence proving such a state. If the request is
accepted, the industrial property right authority shall issue a notification
and/or notification revoking the issued decision and/or notification regarding
the failure to promptly perform tasks and rights of the individual or
organization and restore the processing of the application to its previous
state.
4. Force majeure means an
objective event that cannot be predicted (such as natural disasters, epidemics,
etc.) and cannot be remedied despite applying necessary and permissible
measures.
Objective obstacles mean
obstacles caused by objective situations (such as sickness, work or study at a
faraway location, etc.), making persons with rights and tasks unable to know
their legitimate rights and benefits are infringed upon or fail to perform
their tasks and rights.
Article 16. Amendments
and supplements to industrial property registration applications
1. Before the industrial
property right authority decides to refuse or accept the application or issue
or refuse to issue the protection title, the applicant may:
a) Amend or supplement
documents in the application, providing that such an amendment or supplement
does not extend the scope (volume) of protection in the description of the
invention registration application, set of photos, drawings, and descriptions
of industrial designs displayed in the set of photos and drawings regarding an
industrial design registration application or in the mark and list of goods and
services regarding a mark registration application without changing the nature
of the subjects specified in the application;
b) Change the name,
address, country code of the applicant, name, nationality, address of the
inventor, layout design, and/or industrial design; industrial property
representative.
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a) In case the applicant
proactively amends or supplements the application after the industrial property
right authority approves the valid application, including changes to the legal
representative in Vietnam, the application for such amendments or supplements
shall be made following Form No. 04 in Appendix II of this Decree;
b) In case of amendments
or supplements to the application before the industrial property right
authority accepts or refuses the valid application or amendments or supplements
based on a notification of the industrial property right authority concerning
such an application, the request for amendments or supplements shall be made in
writing, specifying the content of the amendments or supplements;
c) The applicant may
request amendments or supplements to the same content related to many
applications with the same subject matter of industrial property rights in one
statement or document requesting such amendments or supplements;
d) Any petitioner for
amendments or supplements to applications shall pay:
d1) Fees for appraisal of
the request for amendments or supplements for each amendment content according
to regulations and copies of receipts (in case of paying fees via postal
services or directly to the account of the industrial property right
authority);
d2) Fees for disclosure
of information on amendments or supplements to the application according to
regulations if the amendment or supplement content must be disclosed as
prescribed in Point a Clause 3 of this Article. In case amendments or
supplements must be done to remedy errors caused by the industrial property
right authority, the applicant shall not pay the disclosure fees;
dd) Regarding requests
for amendments or supplements to the following documents, the application shall
submit the corresponding documents that have been amended or supplemented:
dd1) A part or a whole of
the description and/or summary of the invention regarding an invention
registration application;
dd2) 4 sets of photos or
sets of drawings, descriptions of integrated circuits produced according to the
layout design regarding a layout design registration application;
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dd4) 5 samples of marks
and the list of goods and services with such marks regarding a mark registration
application;
dd5) Description of the
specific characteristics of the product with geographical indications, maps of
the corresponding geographical area with geographical indications regarding a
geographical indication registration application.
Documents amending or
supplementing the application shall comply with regulations on such documents
prescribed in Appendix I of this Decree. Regarding requests for amendments or
supplements as prescribed in Points dd1, dd2, and dd3 of this Clause, the applicant
shall submit a detailed presentation of the amendment or supplement content for
comparison with the initially submitted documents.
e) Regarding cases of
changing the name, address, country code of the applicant, name, and
nationality of the author, the applicant shall submit a confirmation document
(original or certified copy) or a legal document (certified copy) proving the
changes (decision on changes to the name, address; enterprise registration
certificate recording the changes to name, address, etc.). Regarding cases of
changing the industrial property representative, the applicant shall submit a
statement on changing the industrial property representative.
3. The industrial
property right authority shall process requests for amendments and/or supplements
top applications as follows:
a) Disclose amended or
supplemented content in case the request for amendments or supplements to
relevant information is formally valid as stated in the decision on valid
application acceptance; name, nationality of the inventor, industrial design,
layout design; summary of the invention enclosed with drawings (if any); set of
photos or drawings of the industrial design; mark sample and list of goods and
services enclosed; description of the specific characteristics and the name of
the product with geographical indications;
b) Appraise the amendment
or supplement content in compliance with Article 109 of the Law on Intellectual
Property and relevant laws in case the applicant requests amendments or
supplements to the application under Point a Clause 2 of this Article;
c) Regarding any request
for amendments or supplements to the submitted application after the
notification of the intended issuance of the protection title that falls into the
following cases, the application shall be re-appraised, and the applicant shall
pay fees as per regulation:
c1) Amendments to
information related to the nature of the subject specified in the application:
description of the invention; description, set of photos, drawings of the
industrial design; mark sample, list of goods and services with the mark,
regulation on the use of the collective mark, regulation on the use of the
certification mark; description of the specific characteristics of the product
with geographical indications, geographical area corresponding to the
geographical indications;
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d) Notify the acceptance
or refusal of the request for amendments or supplements within the time limit
prescribed in Clause 4 Article 119 of the Law on Intellectual Property;
dd) Notify the acceptance
or refusal of the request for amendments or supplement to the application in
the documents sent to the applicant during the processing of the concerned
industrial property registration application regarding the case prescribed in
Point b Clause 2 of this Article.
Article 17. Splitting,
withdrawing industrial property registration applications; requesting appraisal
of content, and converting invention registration applications
1. Splitting industrial
property registration applications shall be performed as follows:
a) Before the industrial
property right authority decides to accept the application or issue or refuse
the issuance of the protection title, the applicant may split the application
(splitting one or several technical solutions in the invention registration
application, one or several industrial designs in the industrial design
registration application, or a part of the list of goods and services in the
mark registration application to one or more new applications, called split
application);
b) A split application
carries a new application number and is dated as the submission date of the
initial application or the prioritized date(s) of the initial application (if
any). For each split application, the applicant shall pay the application
submission fees and every fee for procedures performed independently from the
initial application (aside from the procedures performed at the initial
application that are not required for re-performance at the split application)
and be exempted from the fees for appraisal of request for priority rights
(except for cases of splitting industrial design applications due to the
inability to ensure uniformity). The split application shall be appraised
regarding its format and continue to be processed under incomplete procedures
for the initial application. The split application shall be disclosed as per
regulation;
c) The application shall
submit a presentation on the subject matter of protection request and the
amended content compared to the initial application when submitting the split
application;
d) The initial
application (after the splitting) shall continue to be processed under
procedures for processing applications or amending applications.
2. Withdrawing industrial
property registration applications according to Article 116 of the Law on
Intellectual Property shall be performed as follows:
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b) Within 2 months from
the date of receiving the request, the industrial property right authority
shall:
b1) Issue a notification
of the acceptance of the application withdrawal in case it complies with Point
a of this Clause, terminate the processing of the application, and record the
withdrawal to the application record. A withdrawn industrial property
registration application cannot be restored but can be used as the grounds for
requesting priority rights according to Clause 3 Article 116 of the Law on
Intellectual Property;
b2) Issue a notification
of the intended refusal of the withdrawal in case the application withdrawal
does not comply with Point a of this Clause and impose a 2-month time limit
from the notification issuance date for the applicant to remedy his/her
deficiencies;
b3) Issue a refusal
notification of the application withdrawal if the applicant fails to remedy
his/her deficiencies within the time limit prescribed in Point b2 of this
Clause or fails to provide a qualified remedy.
3. Converting an
invention registration application according to Point dd Clause 1 of Article
115 of the Law on Intellectual Property shall be performed as follows:
a) Before the industrial
property right authority decides to refuse or accept the application, issue or
refuse to issue the protection title, the applicant may convert the request for
issuance of the invention patent into the request for the utility solution
patent or vice versa for the whole or a port of the application, providing that
the applicant pays the submission fees for the conversion application as per
regulation. In case of converting a part of the application, the applicant
shall split the application before requesting the conversion.
b) After receiving the
valid conversion request, the industrial property right authority shall
continue to perform procedures for processing the conversion application under
relevant regulations and shall not re-perform the procedures done to the
application before the conversion request.
4. Any third party
requesting the industrial property right authority to appraise the content of
the invention registration application under Article 113 of the Law on
Intellectual Property shall comply with the following regulations:
a) The request for the
appraisal of the content of the invention registration application shall be
made following Form No. 05 Appendix I of this Decree;
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c) Petitioner shall pay
the fees for looking up and appraising the content as per regulation;
d) The request shall be
notified to the applicant within 3 months after receiving the request;
dd) If the request is
invalid, within 1 month after receiving the request, the industrial property
right authority shall issue a notification and impose a 2-month time limit from
the notification issuance date for the petitioner to remedy his/her
deficiencies. If the petitioner fails to remedy his/her deficiencies within the
imposed time limit or provides an unqualified remedy, the industrial property
right authority shall issue a notification of declining to appraise the content
of the application;
e) If the request is
valid, the industrial property right authority shall appraise the content of
the application under Article 114 of the Law on Intellectual Property and
relevant laws and notify the petitioner of the results.
Article 18. Recording
changes to applicants of industrial property registration applications
1. Before the industrial
property right authority decides to refuse or accept the application, issue or
refuse to issue the protection title, the applicant may request the industrial
property right authority to record the changes to the applicant based on the
transfer, inheritance, or decision of the competent authority.
2. Recording changes to
the applicant due to applicant transfer shall be performed as follows:
a) An application for
recording of changes due to application transfer includes:
a1) A request for the
recording of the application transfer following Form No. 05 Appendix II of this
Decree;
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a3) Copies of payment
invoices of fees and charges as per regulation (in cases of paying fees and
charges via postal services or directly to the account of the industrial
property right authority);
b) Request for the
recording of changes due to the transfer of several applications of the same
applicant may be carried out in the same statement, providing that the payment
for appraisal fees under regulations corresponding to the number of
applications requested for transfer recording is made;
c) Request for the
recording of changes due to application transfer shall be processed similarly
to the processing of a request for amendments or supplements to the application
according to Article 16 of this Decree. If the request for the recording of
changes due to the transfer of the mark registration application is submitted
after the issuance of the notification of the intended issuance of the
protection title, the mark registration application shall be re-appraised, and
disclosure of the transfer content shall be made. The petitioner shall pay the
application appraisal fees and disclosure fees as per regulation.
3. The recording of
changes to the applicant due to the inheritance or decision of the competent
authority shall be performed according to a request based on the asset
inheritance during the merger, division, and splitting of juridical persons or
joint venture, association, and establishment of new juridical persons of the
same owner, trading form conversion, or decision of the Court or other
competent authorities. Procedures for requesting the recording of changes to the
applicant in the mentioned cases shall be performed similarly to the procedures
for amending or supplementing applications prescribed in Article 16 of this
Decree.
Section 2. PCT
APPLICATION AND ITS PROCESSING
Article 19. PCT
application
1. PCT applications
include PCT applications originating from Vietnam and PCT national phase
applications.
2. Regarding a PCT
application originating from Vietnam, the applicant may submit the application
through an industrial property right authority or directly to the International
Office. Any application submitted directly to the International Office shall be
made in a language prescribed in the PCT Convention and meet the requirements
for the format and content prescribed in the PCT Convention. Any application
submitted through the industrial property right authority shall be made in
English, each application shall be made in 1 copy and meet the requirements for
the format and content prescribed in the PCT Convention, and the applicant
shall pay fees for the preliminary inspection of the format and fees and
charges prescribed by the Implementation Regulation of the PCT Convention and
fees and charges laws of any member country designated in the PCT application.
3. Regarding a PCT
designating or selecting Vietnam, for it to be into the national phase, the
applicant shall submit the following documents to the industrial property right
authority within 31 months from the priority date (if the application requests
priority rights) or the date of submission of the international application:
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b) Copies of the
international application (in case the applicant requests the national phase
before the international disclosure date);
c) A Vietnamese
translation of the description and summary in the international application
(disclosed copy or initial copy if the application is yet to be disclosed, and
amended copy and amendment explanation if the international application has
been amended according to Article 19 and/or Article 34.2(b) of the PCT
Convention);
d) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the industrial property right
authority);
dd) Authorizing documents
(in case the request is submitted by a representative).
Article 20. Processing
PCT applications originating from Vietnam submitted via industrial property
right authorities
1. After receiving the PCT
application originating from Vietnam, the industrial property right authority
shall:
a) Collect fees for the
preliminary inspection of the application format;
b) Identify if the
subject matter of the protection request in the application is a state secret
or not;
c) Provide notifications
of fees as per regulation for the applicant to transfer to the International
Office and the international search agency according to the PCT Convention;
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dd) Transfer the
application to the International Office and the international search agency in
case the application meets the preliminary requirements for the format, fees
under national laws are paid fully and promptly, and the subject matter of the
protection request in the application is not a state secret;
e) Cancel further work in
case the subject matter of the protection request in the application is a state
secret.
2. After the PCT
application originating from Vietnam has been transferred to the International
Office by the industrial property right authority, regarding transactions
concerning such an application, the applicant shall carry it out directly with
the International Office or the competent authority of the concerned member
country of the PCT Convention designated in the application as prescribed by
the PCT Convention.
Article 21. Processing
of PCT national phase applications
A PCT national phase
application shall be processed as follows:
1. Request for priority
rights in the PCT national phase application shall be processed in compliance
with the PCT Convention and its Implementation Regulation. To have priority
rights, the applicant shall:
a) Reaffirm the request
for priority rights in the statement;
b) Pay fees for the
appraisal of the request for priority rights;
c) Submit the Vietnamese
translation of documents submitted to the International Office according to
requests from the industrial property right authority and necessary documents
according to Rule 17.1(a) of the Implementation Regulation of the PCT
Convention.
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a) Article 28 and 41 of
the PCT Convention, Rule 52.1(b) and Rule 78.1(b) of the Implementation
Regulation of the PCT Convention, and Article 115 of the Law on Intellectual
Property;
b) Authorizing documents,
documents on transfer rights to the submit international phase application (if
any) shall be submitted within 34 months from the priority date (if the
application requests priority rights) or the date of submission of the
international application;
c) Amendment or
supplement documents submitted to the industrial property right authority by
the applicant shall be made in Vietnamese.
3. The PCT national phase
application shall be processed on the first day of the 32nd month from the
priority date (if the application requests priority rights) or from the
submission date of the international application. If the applicant has a
document requesting early processing of the PCT national phase application, the
application shall be processed before the time limit prescribed in this Clause
in compliance with Article 23.2 of the PCT Convention.
4. The PCT national phase
application shall be appraised regarding its format and content under
prescribed procedures for invention registration applications submitted under
the national format and disclosed within 2 months after the date of valid
application acceptance.
Section 3. HAGUE
APPLICATION AND ITS PROCESSING
Article 22. Hague
application
1. Hague applications
include Hague applications designating Vietnam and Hague applications
originating from Vietnam.
2. Regarding a Hague
application originating from Vietnam, the applicant may submit the application
through an industrial property right authority or directly to the International
Office. Any application submitted directly to the International Office shall be
made in a language prescribed in the Hague Agreement and meet the requirements
for the format and content prescribed in the Hague Agreement.
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Article 23. Processing
Hague applications originating from Vietnam submitted via industrial property
right authorities
1. If the Hague
application originating from Vietnam is submitted through the industrial
property right authority, such an authority shall:
a) Collect the fees for
international transfer of the application;
b) Notify the fees that
the applicant has to pay directly to the International Office under the Hague
Agreement within 20 days from the date of receiving the application;
c) Conduct a preliminary
inspection of the application format within 15 days after receiving the
application;
d) If the application has
deficiencies, the industrial property right authority shall notify the
applicant of such deficiencies and impose a 12-day time limit for the applicant
to adopt remedial measures;
dd) Transfer the Hague
application originating from Vietnam to the International Office within 1 month
after receiving the application.
2. The date on which the
industrial property right authority receives the Hague application will be
considered the submission date of the international registration application
for industrial designs if the International Office receives that application within
1 month after the date displayed on the receipt seal of the industrial property
right authority.
3. After the Hague
application originating from Vietnam has been transferred to the International
Office, regarding transactions concerning such an application, the applicant
shall carry it out directly with the International Office or the competent
authority of the concerned member country of the Hague Agreement designated in
the application as prescribed by the Hague Agreement.
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After receiving a
notification of the International Office, the industrial property right
authority shall process the Hague application designating Vietnam as follows:
1. The industrial
property right authority shall appraise the content of the application
similarly to the procedure applicable to the industrial design registration
application submitted under the national format, except for cases prescribed in
Clauses 2, 3, 4, 5, 6, 7, and 9 of this Clause. Within 6 months from the date
of the notification issuance of the International Office, the industrial
property right authority shall conclude the protective capacity of the
industrial design specified in the application.
2. In case the industrial
design specified in the application meets the requirements for protection
according to the laws of Vietnam and the application does not have any
deficiency, the industrial property right authority shall:
a) Before the 6-month
time limit prescribed in Clause 1 of this Article ends, issue a decision to
accept the protection of the internationally registered industrial design
specified in the application, record the information to the National Industrial
Design Register (the part for Internationally Registered Industrial Design) and
send the statement on protection acceptance of the internationally registered
industrial design to the International Office following the form of the
International Office;
b) Disclose the decision
on the Industrial Property Official Gazette within 2 months from the decision
issuance date.
3. In case the industrial
design does not meet the requirements for protection or the application has
deficiencies (lack of photos/drawings, resulting in the inadequate description
of the design characteristics of the industrial design or the international
registration does not comply with statements of Vietnam or there is information
to be verified, etc.), before the 6-month time limit prescribed in Clause 1 of
this Article ends, the industrial property right authority shall issue a
refusal notification following the form of the International Office, specifying
the content and reason for the refusal and send such a notification to the
International Office.
4. In case several
industrial designs do not meet the requirements for protection or the
application has deficiencies concerning several industrial designs (lack of
photos/drawings, resulting in the inadequate description of the design
characteristics of the industrial designs or the international registration
does not comply with statements of Vietnam, or there is information to be
verified, etc.), before the 6-month time limit prescribed in Clause 1 of this
Article ends, the industrial property right authority shall:
a) Issue a refusal
notification regarding any industrial design that fails to meet the
requirements for protection or any deficiency following the form of the
International Office, specifying the content and reason for the refusal and
send such a notification to the International Office;
b) Issue a decision to
accept the protection of any industrial design that meets the requirements for
protection without any deficiency, record the information to the National
Industrial Design Register (the part for Internationally Registered Industrial
Design), and send the statement on protection acceptance of the internationally
registered industrial design to the International Office following the form of
the International Office, which specifies the industrial design accepted for
protection;
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5. Within 3 months from
the date the industrial property right authority issues the refusal
notification according to Clause 3 and Clause 4 of this Article, the applicant
may amend his/her deficiencies or object to the refusal of the industrial
property right authority. Any amendment to deficiencies or objection to the
refusal prescribed in the notification shall be carried out similarly to the
procedure applicable to the industrial design registration application
submitted under the national format, including regulations on application
submission methods.
In case the Hague
application is expected to be refused due to failure to meet the uniformity
requirements of applications as prescribed in Article 101 of the Law on
Intellectual Property, the applicant may remedy such a deficiency by splitting
one or several industrial designs in the application to one or many new
applications. The industrial property right authority shall split the
application and issue decisions and notifications of new applications
independently from the initial application.
6. In case the applicant
provides qualified amendments to deficiencies and/or reasonable objections,
within 3 months as prescribed in Clause 5 of this Article, the industrial
property right authority shall:
a) Issue a decision to
accept the protection of internationally registered industrial design regarding
any industrial design that meets the requirements for protection, record the
information to the National Industrial Design Register (the part for
Internationally Registered Industrial Design), and send the statement on
protection acceptance of the internationally registered industrial design to
the International Office after the refusal following the form of the
International Office, which specifies the industrial design accepted for
protection;
b) Disclose the decision
on the Industrial Property Official Gazette within 2 months from the decision
issuance date.
7. In case the applicant
fails to amend deficiencies or provides inadequate amendments, does not have
any objection or provides inadequate objections regarding the refused
industrial designs after the 3-month time limit prescribed in Clause 5 of this
Article, the industrial property right authority shall issue a decision to
refuse the protection of internationally registered industrial design of such
industrial designs.
8. After the 3-month time
limit from the date the International Office issues a notification of the Hague
application designating Vietnam but the applicant fails to submit any document
proving priority rights or has such a document refused by the industrial
property right authority, the application shall be considered not having any
request for priority rights.
9. Procedures for
complaining and settling complaints for decisions prescribed in Clauses 2, 3,
4, 6, and 7 of this Article shall be carried out similarly to procedures
applicable to industrial design registration applications submitted under the
national format. In case several or all of the previously refused industrial
designs are accepted for protection as the result of the complaint settlement,
the industrial property right authority shall send the statement on protection
acceptance of the internationally registered industrial design to the
International Office after the refusal following the form of the International
Office, which specifies the industrial designs accepted for protection.
10. In case a third party
has a suggestion on the Hague application designating Vietnam before the date
of issuance of the protection acceptance decision, such a suggestion shall be
considered as a reference for the processing of the Hague application
designating Vietnam.
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Article 25. Madrid
application
1. Madrid applications
include Madrid applications originating from Vietnam and Madrid applications
designating Vietnam.
2. Regarding a Madrid
application originating from Vietnam, the applicant shall submit the
application through an industrial property right authority.
3. A Madrid application
originating from Vietnam includes:
a) Statement on request
for the international registration of marks originating from Vietnam, following
Form No. 01 Appendix II of this Decree in Vietnamese;
b) 2 MM2 statements
following the form of the International Office in English or French;
c) 2 samples of the mark identical
to the mark in the registration application submitted in Vietnam (base
application) or the certificate of mark registration (base registration);
d) 2 MM18 statements in
English (if the application designates the USA);
dd) Authorizing documents
in Vietnamese (in case the application is submitted by a representative);
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g) Other relevant
documents (if necessary).
4. The Madrid application
originating from Vietnam shall meet the requirements for the format and content
according to regulations. The applicant shall provide information for the
statement with adequacy, accuracy, and compliance with regulations and in
uniformity with the information specified in the base application or
registration.
Article 26. Processing
Madrid applications originating from Vietnam and relevant requests
1. After receiving the
Madrid application originating from Vietnam, the industrial property right
authority shall conduct the appraisal to determine if the application meets the
requirements prescribed in Clause 3 and Clause 4 Article 25 of this Decree and
perform the following procedures:
a) If the application has
deficiencies, the industrial property right authority shall notify the
applicant of such deficiencies for the applicant to provide amendments. If the
applicant fails to amend the deficiencies within the 3-month time limit from
the date the industrial property right authority issues the notification, the
application shall be considered to be withdrawn;
b) If the application
does not have deficiencies or the applicant has provided qualified amendments
to deficiencies, the industrial property right authority shall issue a
notification of fees and charges that the applicant has to pay directly to the
International Office, provide an application confirmation signature and
transfer the application to the International Office within 15 days after
issuing the mentioned notification;
c) The date on which the
industrial property right authority receives the Madrid application originating
from Vietnam will be considered the international registration date of that
application if the International Office receives that application within 2
months after the date displayed on the receipt seal of the industrial property
right authority. If the application is not submitted to the International
Office within the mentioned time limit, the date on which the International
Office receives the application will be considered the international
registration date.
2. After the Madrid
application originating from Vietnam is submitted to the International Office,
the industrial property right authority shall let the applicant know via a
notification and continue to process (in cooperation with the applicant if
necessary) notifications and requests from the International Office or carry
out operations concerning the application (if any).
3. Requests arising after
the Madrid application originating from Vietnam is issued with an international
registration book, such as late designation (extension of protection
territory), amendments to the name and/or address of the owner of the
international registration, limitation of the list of goods and services,
renewal of the international registration validity, designation of the
representative, changes to the representative, recording of international
registration transfer, etc., may be carried out directly with the International
Office or through the industrial property right authority. Any request
submitted through the industrial property right authority shall be enclosed
with the following documents:
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b) 2 corresponding
statements following the form of the International Office;
c) Authorizing documents
in Vietnamese (in case the request is submitted by a representative);
d) Payment receipts of
fees for appraisal of amendments, transfer, renewal, territorial extension,
limitation of the list of goods and services, and termination or abrogation of
the validity of marks internationally registered originating from Vietnam,
etc.;
dd) Other relevant
documents (if necessary).
4. After receiving
requests prescribed in Clause 3 of this Article, the industrial property right
authority shall perform the following procedures:
a) If the request
application has deficiencies, the industrial property right authority shall
notify the applicant of such deficiencies for the applicant to provide
amendments. If the applicant fails to amend the deficiencies within the 3-month
time limit from the date the industrial property right authority issues the
notification, the request shall be considered to be withdrawn;
b) If the request
application does not have deficiencies or the applicant has provided qualified
amendments to deficiencies, the industrial property right authority shall issue
a notification of fees and charges that the applicant has to pay directly to
the International Office, provide a request confirmation signature and transfer
the request to the International Office within 10 days after issuing the
mentioned notification.
5. In case of an
international registration renewal request submitted through the industrial
property right authority, the applicant shall submit the request within 6
months before and/or within 1 month after the expiry date of the international
registration. In case of requesting the international registration renewal
during a grace period, the request application shall be submitted to the
industrial property right authority within 1 month from the end date of the
grace period.
Article 27. Processing
Madrid applications designating Vietnam
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2. In case the mark meets
the requirements for protection according to the laws of Vietnam, the
industrial property right authority shall:
a) Before the 12-month
time limit prescribed in Clause 1 of this Article ends, issue a decision to
accept the protection of the mark internationally registered in Vietnam, record
the information to the National Industrial Design Register (the part for
Internationally Registered Marks) and send the protection statement to the
International Office;
b) Disclose the decision
on the Industrial Property Official Gazette within 2 months from the decision
issuance date.
The protection scope
(volume) is determined based on the content of the request in the international
registration of marks recognized by the International Office and accepted by
the industrial property right authority.
3. If the mark has a part
or all of the goods and services not meeting the requirements for protection or
the mark meets the requirement for protection but its international
registration has deficiencies (lack of regulations on the use of the collective
mark, certification mark, photos or drawings describing the 3-dimensional
illustration of the mark, etc.), before the 12-month time limit prescribed in
Clause 1 of this Article ends, the industrial property right authority shall
issue a temporary refusal notification, specifying the content and reason for
the intended refusal and send that notification to the International Office.
4. Within 3 months from
the date the industrial property right authority issues the notification of temporary
refusal of a part or all of the goods and services, the applicant may amend
deficiencies or object to the intended refusal of the industrial property right
authority.
Amendments to
deficiencies or objection to the intended refusal shall be carried out
similarly to the procedure applicable to the mark registration application
submitted under the national format, including regulations on application
submission methods.
5. If the industrial
property right authority intends to refuse a part or all of the list of goods
and services specified in the temporary refusal notification, if the applicant
provides qualified amendments to deficiencies and/or has reasonable objections
to the intended refusal within the 3-month time limit prescribed in Clause 4 of
this Article, the industrial property right authority shall:
a) Issue a decision to
accept the protection of the mark internationally registered in Vietnam with
the scope (volume) of protection corresponding to the goods and services
meeting the requirements for the protection, record the information to the
National Industrial Design Register (the park for Internationally Registered
Marks), and send the protection statement after the temporary refusal
notification to the International Office;
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6. In case the industrial
property right authority intends to refuse a part of the list of goods and
services specified in the temporary refusal notification, if the applicant
fails to amend deficiencies or provides unqualified amendments or does not have
any objection or has unreasonable objections to the intended refusal after the
3-month time limit prescribed in Clause 4 of this Article, the industrial
property right authority shall apply the procedures prescribed in Clause 5 of
this Article to goods and services meeting the requirements for protection
(goods and services not specified in the temporary refusal notification).
7. In case the industrial
property right authority intends to refuse all of the list of goods and
services specified in the temporary refusal notification, if the applicant
fails to amend deficiencies or provides unqualified amendments or does not have
any objection or has unreasonable objections to the intended refusal after the
3-month time limit prescribed in Clause 4 of this Article, the industrial
property right authority shall issue a decision to refuse the protection of
marks internationally registered in Vietnam and send such a notification of
complete refusal to the International Office.
8. Procedures for
complaining and settling complaints for decisions prescribed in Point a Clause
2 and Clauses 5, 6, 7 of this Article shall be carried out similarly to
procedures applicable to mark registration applications submitted under the
national format if there are grounds proving that such decisions are issued
contrary to laws on contents and issuance order. The applicant shall be
notified of the results of the complaint settlement by the industrial property
right authority. If a part or a whole of the list of goods and services refused
in refusal decisions is accepted for protection, or there are changes to
exclusion elements (not separately protected) as a result of the complaint
settlement, the industrial property right authority shall send decisions
concerning mark protection following the form of the International Office on
corresponding contents to the International Office.
9. From the date the
international registration of the mark is accepted for protection in Vietnam,
according to the request of the owner of the mark, the industrial property
right authority shall issue a confirmation certificate of marks internationally
registered in Vietnam, providing that related fees and charges are paid under
regulations.
10. From the date the
Madrid application is disclosed by the International Office on the Official
Gazette to before the issuance date of the protection acceptance decision, or
after the 12-month time limit from the date the International Office notifies
the application designating Vietnam, depending on any of the mentioned period,
if a third party has suggestions on the Madrid application designating Vietnam,
such suggestions shall be considered as reference during the processing of the
application.
Article 28. Converting
international registration of marks to applications submitted under the
national format
1. In case an
international registration of a mark in Vietnam of an owner that is an
individual or an organization of a member of the Madrid Protocol expires
according to Article 6 of the Madrid Protocol, that owner may submit a
conversion application to the industrial property right authority to register
protection for such a mark regarding a part or all of the goods and services of
the list of goods and services recognized in the expired international
registration of the mark as prescribed in Article 9quinquies of the
Madrid Protocol. The mark conversion registration application shall be accepted
as valid if it meets the following requirements:
a) The application is
submitted within 3 months after the date of recording in the International
Register on the corresponding expired international registration;
b) The international
registration has never been subject to a complete refusal, termination, or
cancellation in Vietnam;
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d) The application meets
all of the other requirements for the format of the mark registration
application according to the laws of Vietnam;
dd) The applicant
adequately pays fees and charges according to regulations applicable to mark
registration applications submitted under the national format, except for cases
prescribed in Point b Clause 2 of this Article.
The submission date of
the conversion mark registration application is the international registration
date or the late designation date (in case of late designation of Vietnam). If
the international registration is eligible for priority rights under
international treaties, the conversion mark registration application shall be
recorded with the corresponding priority rights, except for cases where there
are grounds abrogating such rights.
2. The industrial
property right authority shall appraise the conversion mark registration
application according to regulations on requirements for conversion prescribed
in Clause 1 of this Article and the following principles:
a) Regarding elements on
the selected format accepted by the International Office in the corresponding
international registration, the industrial property right authority shall not
perform the re-appraisal, except for cases where the application has
deficiencies (lack of regulations on the use of the collective mark,
certification mark, photos or drawings describing the 3-dimensional
illustration of the mark, etc.). The industrial property right authority shall
issue a decision to refuse the application in case the application fails to
meet the requirements prescribed in Clause 1 of this Article.
b) Regarding a mark
registration application converted from an international registration accepted
for protection in Vietnam, the industrial property right authority shall not
perform the re-appraisal. If the application meets the requirements for
conversion prescribed in Clause 1 of this Article, the industrial property
right authority shall perform procedures for notifying the intended issuance of
the protection title, issuing a decision on grant of the protection title,
recording to the National Industrial Design Register, disclosing the decision
on the Industrial Property Official Gazette as for applications submitted under
the national format.
c) Regarding valid
conversion mark registration application that does not fall into the case
prescribed in Point b of this Clause, the industrial property right authority shall
perform procedures for valid application acceptance, application disclosure,
and content appraisal and carry out other procedures as for mark registration
applications submitted under the national format.
Section 5. PROTECTION
TITLE
Article 29. Amending
information on protection titles, changing information in the National
Industrial Property Register
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a) Changes to the name
and address of the owner of the protection title; organization managing geographical
indications; name and nationality of the author of the invention, industrial
design, or layout design;
b) Changes to the owner
of the protection title (transfer of ownership due to the merger, division, and
splitting of juridical persons or joint venture, association, and establishment
of new juridical persons of the same owner, trading form conversion, or
decision of the Court or other competent authorities);
c) Amendments to the
description of the specific characteristics of the product with geographical
indications, geographical area corresponding to the geographical indications,
regulations on the use of the collective mark, and regulation on the use of the
certification mark.
Regarding requests for
recording changes to information on the protection title, the petitioner shall
pay the fees for the appraisal of the amendment request for the protection
title, fees for registration, and fees for disclosure of the decision to record
amendments to the protection title.
2. The owner of the protection
title, organization, or individual permitted by the State to perform rights to
geographical indication registration may request the industrial property right
authority to record changes to the industrial property representative of the
owner of the protection title in the National Industrial Property Register.
Regarding requests for changes to the industrial property representative, the
petitioner shall submit an authorizing document of the owner of the protection
title and pay fees for the appraisal of the request, fees for registration, and
fees for disclosure of decisions to record changes to the information on the
industrial property representative under regulations.
3. The owner of the
protection title may request the industrial property right authority to narrow
the scope of protection according to Clause 3 Article 97 of the Law on
Intellectual Property in the following cases:
a) Request for reduction
of one or several goods and services from the list of goods and services
specified in the Certificate of Mark Registration or elimination of small
details that are exclusion elements (not separately protected) not affecting
the distinctiveness of the mark specified in the Certificate of Mark
Registration;
b) Request for reduction
of one or several independent points depending on the scope (request) of
protection specified in the invention patent or utility solution patent;
c) Request for
elimination of one or several industrial design schemes, one or several
products in the product set in the industrial design patent.
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4. Depending on the
content that needs to be amended according to Clauses 1, 2, and 3 of this
Article, the request application shall include 1 set of the following
documents:
a) Statement on request
following Form No. 06 Appendix II of this Decree specifying in the request for
recording changes. A statement requesting amendments may amend many protection
titles if they have the same amendment content, providing that the petitioner
pay the prescribed fees for each protection title;
b) Original protection
title in case it is granted in paper form;
c) Documents confirming
changes to the name and address (original or certified copy); decisions on
changes to the name and address; business registration licenses specifying
changes to the name and address; other legal documents proving changes to the
name and address (original or certified copy) in case of requesting changes to
name and address;
d) Documents proving the
transfer of ownership according to Point b Clause 1 of this Article (documents
proving the merger, division, and splitting of juridical persons or joint
venture, association, and establishment of new juridical persons of the same
owner, trading form conversion, or decision of the Court or other competent
authorities) in case of requesting changes to the owner of the protection
title;
dd) Documents on detailed
presentation of the amendment content;
e) 5 sets of photos or
drawings of the amended industrial design (in case of requesting amendments to
the industrial design); 2 descriptions of the specific characteristics of the
product with geographical indications, maps of the corresponding geographical
area with geographical indications (in case of requesting amendments to
geographical indications); 2 copies of the amended regulation on the use of the
collective mark or certification mark (in case of requesting amendments to the
collective or certification mark); 5 mark samples (in case of requesting
amendments to the mark sample according to Point a Clause 3 of this Article);
g) Authorizing documents
(in case the request is submitted by a representative);
h) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the industrial property right
authority).
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a) Within 2 months after
receiving the request, the industrial property right authority shall assess the
request for amendments to the protection title according to Point a and Point b
Clause 1 of this Article. If the request is considered valid, the industrial
property right authority shall issue a decision on the amendment to the
protection title, record the information to the protection title, and register
and disclose the decision on the Industrial Property Official Gazette within 60
days after issuing the decision. If the request has deficiencies or is invalid,
the industrial property right authority shall issue a notification of the
intended refusal of the request, specifying the reason and imposing a 2-month
time limit from the notification issuance date for the petitioner to amend the
deficiencies or object to the refusal. After the imposed time limit, if the
petitioner fails to amend deficiencies or provides inadequate amendments, does
not have any objection or provides inadequate objections, the industrial
property right authority shall issue a decision to refuse the amendment to the
protection title;
b) Regarding requests for
amendments to the protection title according to Point c Clause 1 and Clause 3
of this Article, procedures for the re-appraisal of the corresponding
application shall be performed under Article 114 of the Law on Intellectual
Property and relevant laws. The time for re-appraisal is not included in the
time for the processing of requests for amendments to the protection title;
c) Within 2 months after
receiving the request, the industrial property right authority shall assess the
request for recording changes to the industrial property representative in the
National Industrial Property Register according to Clause 2 of this Article. If
the request application is considered valid, the industrial property right
authority shall issue a decision to record changes to the industrial property
representative to the National Industrial Property Register and register and
disclose the decision on the Industrial Property Official Gazette within 60
days after issuing the decision. If the request has deficiencies or is invalid,
the industrial property right authority shall issue a notification of the
intended refusal of the request, specifying the reason and imposing a 2-month
time limit from the notification issuance date for the petitioner to amend the
deficiencies or object to the refusal. After the imposed time limit, if the
petitioner fails to amend deficiencies or provides inadequate amendments, does
not have any objection or provides inadequate objections, the industrial
property right authority shall issue a decision to refuse to record the changes
to the industrial property representative.
6. If any deficiency is
detected in the protection title, the industrial property right authority shall
revoke the protection title with deficiencies and re-issue it with amended
information itself or based on the request of the person who detects the
deficiency. The owner of the protection title shall pay the fees for the
appraisal of the request for amendments to the protection title according to
Clause 1 Article 97 of the Law on Intellectual Property and the fees for
disclosure of amendment information in case the protection title has
deficiencies that have been disclosed if the deficiencies are caused by the
owner. If the deficiencies are caused by the industrial property right
authority, the owner shall not pay the disclosure fees.
7. The industrial
property right authority shall issue copies of the protection title and
re-issue the protection title or its copies in the following cases:
a) In case the industrial
property rights are jointly owned, the protection title shall only be issued to
the first person in the list of applicants. Other co-owners may request the
industrial property right authority to issue copies of the protection title,
providing that they pay the issuance fees;
b) In case the protection
title or the copy of the protection title is lost, damaged, torn, dirty, faded
to the point of being unusable, or disassembled without the seal, the
industrial property right owner may request the industrial property right
authority to re-issue the protection title of the copy, providing that the
corresponding fees are paid;
c) Request for issuance
of copies of the protection title or re-issuance of the protection titles or
its copies shall be made in writing, except for cases where the request has
been specified in the statement on registration of subject matter of industrial
property. A request application shall include 1 set of the following documents:
c1) Statement on request
for the issuance of copies of the protection title or re-issuance of the
protection title or its copies following Form No. 09 Appendix II of this
Decree;
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c3) Authorizing documents
(in case the request is submitted by a representative);
c4) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the industrial property right
authority);
d) Processing of requests
for issuance of copies of the protection title or re-issuance of the protection
title or its copies:
d1) Within 1 month after
receiving the request, the industrial property right authority shall assess the
request for issuance of copies of the protection title or re-issuance of the protection
title or its copies. In case the request for issuance of copies of the
protection title or re-issuance of the protection title or its copies comply
with Points a, b, and c of this Clause, the industrial property right authority
shall issue a decision to issue copies of the protection title or re-issue the
protection title or its copies and record the information to the registration
session of the corresponding protection title in the National Industrial
Property Register;
d2) Contents of copies of
the protection title shall specify the information of the corresponding
protection title and be labeled as “Copy”. Contents of the re-issued protection
title or its copies shall specify the information of the initial protection
title or its copies and be labeled as “Re-Issued Copy”. The industrial property
right authority shall disclose the re-issuance of the protection title or its
copies on the Industrial Property Official Gazette within 60 days after issuing
the decision;
d3) If the request for
issuance of copies of the protection title or re-issuance of the protection
title or its copies fails to comply with Point c of this Clause, the industrial
property right authority shall issue a notification and impose a 2-month time
limit from the notification issuance date for the applicant to amend
deficiencies or have objections. After the imposed time limit, if the
petitioner fails to amend deficiencies or provides inadequate amendments, does
not have any objection or provides inadequate objections, the industrial
property right authority shall issue a decision to refuse the issuance of
copies of the protection title or re-issuance of the protection title or its
copies with specific explanations and reasons.
8. Procedures for issuing
copies of the certificate of registration of transfer contract of subject
matter of industrial property right or re-issuing such certificate shall be
performed similarly to the procedures prescribed in Clause 7 of this Article.
Article 30.
Maintaining the validity of invention patents and utility solution patents
1. A request application
for maintenance of the validity of an invention patent/utility solution patent
shall include the following documents:
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b) Authorizing documents
(in case the request is submitted by a representative);
c) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the industrial property right authority).
2. Request for validity
maintenance of the protection title and fees for appraisal of the request, fees
for validity maintenance, fees for the use of the protection title,
registration fees, and disclosure fees shall be paid to the industrial property
right authority within 6 months before the end date of the validity of the
protection title. This request may be submitted after the mentioned time limit,
but shall not be later than 6 months from the end date of the previous validity
period of the protection title and the owner of the protection title shall pay
fees for each month late under fees and charges laws.
3. Within 1 month from
the date of receipt of the request application for validity maintenance of the
protection title and fees and charges prescribed in Clause 1 and Clause 2 of
this Article, the industrial property right authority shall assess the request
application and perform the following procedures:
a) If the request
application is considered valid, issue a notification of the validity
maintenance of the protection title, record the information to the National
Industrial Property Register, and disclose it on the Industrial Property
Official Gazette within 6o days after issuing the notification;
b) If the request
application has deficiencies or is invalid, issue a notification of the
intended refusal of maintenance, specifying the reason and imposing a 2-month
time limit from the notification issuance date for the petitioner to amend the
deficiencies or object to the refusal. After the imposed time limit, if the
petitioner fails to amend deficiencies or provides inadequate amendments, does
not have any objection or provides inadequate objections, the industrial
property right authority shall issue a decision to refuse the validity maintenance
of the protection title.
Article 31. Renewing
the validity of industrial design patents and certificates of mark registration
1. An industrial design
patent shall be renewed up to 2 consecutive times, 5 years each. If the
protected industrial design has many schemes, the industrial design patent may
be renewed for one or several schemes, which must contain the basic scheme. A
certificate of mark registration may be renewed multiple times, 10 years each
for a part or a whole of the list of goods and services.
2. A request application
for renewal of the validity of an industrial design patent or certificate of
mark registration shall include the following documents:
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b) Original industrial
design patent or certificate of mark registration (if the protection title is
issued in paper form and the recording of the renewal into the protection title
is requested);
c) Authorizing documents
(in case the request is submitted by a representative);
d) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the industrial property right
authority).
The same application may
be used to request the validity renewal for one or many protection titles if
they have the same subject matter and owner.
3. The request
application and fees for appraisal of the request, fees for validity renewal of
the protection title, fees for the use of the protection title, fees for
registration, and fees for disclosure of the decision on validity renewal of
the protection title shall be paid by the owner of the industrial design patent
or certificate of mark registration to the industrial property right authority
within 6 months from the date the mentioned patent/certificate expires. This
request may be submitted after the mentioned time limit, but shall not be later
than 6 months from the end date of the previous validity period of the
protection title and the owner of the protection title shall pay fees for each
month late under fees and charges laws.
4. Within 1 month after
receiving the request application, the industrial property right authority
shall assess the application and perform the following procedures:
a) If the application is
valid, issue a decision to renew the validity of the protection title, record
the information to the protection title (if requested), and register and
disclose the decision to renew the validity of the industrial design patent or
certificate of mark registration on the Industrial Property Official Gazette
within 60 days after issuing the decision;
b) Issue a notification
of the intended refusal of the renewal, specifying the reason and imposing a
2-month time limit from the notification issuance date for the petitioner to
amend the deficiencies or object to the refusal in one of the following cases:
b1) Request application
for renewal is invalid or submitted contrary to the prescribed procedures;
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After the imposed time
limit, if the petitioner fails to amend deficiencies or provides inadequate
amendments, does not have any objection or provides inadequate objections, the
industrial property right authority shall issue a decision to refuse to renew
the validity of the industrial design patent or certificate of mark
registration.
c) After the renewal
procedure is completed, if the owner of the industrial design patent or
certificate of mark registration requests the industrial property right
authority to record the validity renewal decision into the protection title,
the owner shall perform procedures for amendments to the protection title and
pay fees and charges under regulations.
Article 32.
Terminating or abrogating the validity of protection titles
1. Any organization or
individual requesting the termination or abrogation of the validity of the protection
title according to Clause 4 of Article 95, Clause 4 Article 96 of the Law on
Intellectual Property shall pay the request fees, fees for appraisal of the
request for termination or abrogation of the validity of the protection title,
fees for registration, and fees for disclosure of the decision on the
termination or abrogation of the validity of the protection title.
2. A request application
for the termination or abrogation of the validity of the protection title shall
comply with the following regulations:
a) One application may
request the termination or abrogation of the validity of one or several
protection titles if the specified reason is the same, providing that the
petitioner pay fees and charges for each protection title;
b) A request application
shall content 1 set of the following documents:
b1) Statement requesting
the termination or abrogation of the validity of the protection title following
Form No. 08 Appendix II of this Decree;
b2) Evidence (if any);
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b4) Explanation for the
request (specifying certificates, reasons, legal grounds, the content of the
request for the termination or abrogation of a part or a whole of the validity
of the protection title), and relevant documents;
b5) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the industrial property right
authority).
3. A request application
for the termination or abrogation of the validity of the protection title shall
be processed as follows:
a) The request
application for termination or abrogation of the validity of the protection
title shall be processed under Article 95, Article 96, and Clause 3 Article 220
of the Law on Intellectual Property and this Article. Regarding the request for
abrogation of the validity of the protection title, the industrial property
right authority shall re-appraise the content of the corresponding application
according to Article 114 of the Law on Intellectual Property and relevant laws;
b) In case a third party
requests the termination or abrogation of the validity of the protection title,
within 1 month after receiving the request, the industrial property right authority
shall provide a written notification on the third party's suggestions for the
owner of the protection title, imposing a 2-month time limit for the owner to
provide any suggestion. The industrial property right authority may organize a
direct exchange between the third party and the concerned owner;
c) The industrial
property right authority shall, on the basis of assessing the suggestions of
parties, issue a decision to terminate/abrogate a part or a whole of the
validity of the protection title or a notification declining the
termination/abrogation according to Clause 5 Article 95 and Clause 5 Article 96
of the Law on Intellectual Property;
The time limit for
issuing the decision or notification mentioned in this Point is 3 months from
the end date of the 2-month time limit prescribed in Point b of this Clause or
after the end date of the 3-month time limit prescribed in Point a Clause 4 and
Point a Clause 5 of this Article and the owner does not have any suggestion or
from the date of receipt of the suggestion of the owner. This time limit may be
extended for up to 3 months if the owner has a suggestion different from the
party requesting the termination or abrogation of the validity of the
protection title.
If the owner declares to
renounce the industrial property rights according to Clause 3 Article 95 of the
Law on Intellectual Property, the mentioned time limit shall be 15 days after
receiving the request.
The time to implement
other procedures necessary to process the request for termination or abrogation
of the validity of the protection title shall not be included in the above
time.
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dd) The decision on
termination or abrogation of the validity of the protection title shall be
recorded to the National Industrial Property Register and disclosed on the
Industrial Property Official Gazette within 60 days after its issuance date.
4. A request application
for the termination or abrogation of the international registration of a mark
shall be processed as follows:
a) Regarding a request
application for termination or abrogation of the validity of the international
registration of a mark under the Madrid Agreement or Madrid Protocol submitted
by a third party, the industrial property right authority shall notify the
owner of the mark of the request for termination or abrogation of the validity
of the international registration of the mark through the International Office,
imposing a 3-month time limit from the notification issuance date for the owner
to have any suggestions;
b) The validity of the
international registration of the mark may be terminated or abrogated partly or
wholly regarding the list of goods and services;
c) If the industrial
property right authority issues a decision to terminate or abrogate the
validity of the international registration of the mark regarding a part or a
whole of the list of goods and services and this decision no longer subject to
a complaint or administrative lawsuit, the industrial property right authority
shall issue a notification terminating or abrogating the validity or the
international registration of the mark following the form of the International
Office, specifying the list of goods and services whose validity is terminated
or abrogated and send this notification to the International Office;
d) Other regulations
concerning the processing of requests for termination or abrogation of the
validity of mark protection titles based on the mark registration applications
submitted under the national format shall apply to the processing of requests
for termination or abrogation of the validity of the international registration
of marks.
5. A request application
for the termination or abrogation of the international registration of an
industrial design shall be processed as follows:
a) Regarding a request
application for termination or abrogation of the validity of the international
registration of an industrial design under the Hague Agreement submitted by a
third party, the industrial property right authority shall notify the owner of
the industrial design of the request for termination or abrogation of the validity
of the international registration of the industrial design through the
International Office, imposing a 3-month time limit from the notification
issuance date for the owner to have any suggestions;
b) The international
registration of the industrial design may have its validity abrogated for one
or all of the industrial designs in the registration;
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d) Other regulations
concerning the processing of requests for termination or abrogation of the
validity of industrial design protection titles issued based on the industrial
design registration applications submitted under the national format shall
apply to the processing of requests for termination or abrogation of the validity
of the international registration of industrial designs.
Chapter II
HOLDERS, CONTENTS, AND LIMITATIONS OF
INDUSTRIAL PROPERTY RIGHTS
Article 33. Holders of
industrial property rights
1. Holders of industrial property
rights include organizations and individuals owning subject matters of
industrial property prescribed in Article 121 of the Law on Intellectual
Property or organizations and individuals authorized by industrial property
owners.
2. In case a protection
title of an invention, industrial design, layout design, or mark is issued to
many organizations and individuals according to Clause 2 Article 86, Clause 5
Article 87, and Clause 3 Article 90 of the Law on Intellectual Property, the
industrial property rights shall be jointly owned by such organizations and
individuals. Co-owners shall exercise their ownership rights under civil laws.
Article 34. Scope of
industrial property rights
1. The scope of the
industrial property rights to an invention, industrial design, layout design,
mark, or geographical indication is determined based on the scope of protection
recorded in the National Industrial Design Register, International Register of
Marks, and International Register of Industrial Designs or the protection
title, certificate of international registration of the mark, or decision on
the protection acceptance of the internationally registered industrial design.
2. The scope of rights to
a trade name is determined based on the scope of protection of the trade name,
including the trade name, business field, and business territory where the
trade name is used by the holder legally. The registration of the name of a
business organization or individual in business procedures is not considered as
using such the name but a condition for its use to be legal.
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4. Holders of industrial
property rights shall receive rights and perform obligations under the
protection scope with conditions prescribed in Articles 132, 133, 133a, 134,
135, 136, 136a, and 137 of the Law on Intellectual Property.
Article 35. Rights of
authors of inventions, industrial designs, and layout designs
1. The moral rights of
authors prescribed in Clause 2 Article 122 of the Law on Intellectual Property
shall be protected indefinitely.
2. Rights to receive remuneration
of authors prescribed in Clause 3 Article 122 of the Law on Intellectual
Property shall be protected throughout the protection period of inventions,
industrial designs, and layout designs.
3. If there is no other
agreement between the owner and the author, the settlement of remuneration
shall be performed within 30 days from the date the owner receives the payment
of the transfer of use rights or within 90 days from the end date of the fiscal
year if the remuneration of the author is determined according to Point a
Clause 1 Article 135 of the Law on Intellectual Property.
Article 36. State
management responsibilities for signs of geographical origins
1. People’s Committees of
provinces and centrally affiliated cities shall take charge and cooperate with
the Ministry of Agriculture and Rural Development of Vietnam and the Ministry
of Industry and Trade of Vietnam in identifying types of specialties,
characteristics of products, production processes of specialties with
geographical indications under the management of ministries and central and
local authorities based on the local planning.
2. People’s Committees of
provinces and centrally affiliated cities shall permit the use of other
location names and signs indicating the geographical origins of local
specialties for the registration of collective marks and certification marks;
submit the applications for registration of geographical indications used for
local specialties or authorize People's Committees of districts, district-level
towns, district-level cities, and centrally affiliated cities or professional
agencies of People’s Committees of provinces and centrally affiliated cities to
carry out the submission.
3. The Minister of
Science and Technology of Vietnam shall provide guidelines on the criteria for
identifying other location names and signs indicating the geographical origins
of products.
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1. Regarding geographical
indications of Vietnam, agencies and organizations that may manage geographical
indications (hereinafter referred to as "geographical indication
management organizations") prescribed in Clause 4 Article 121 of the Law
on Intellectual Property include:
a) The People’s Committee
of a province or centrally affiliated city where there are geographical areas
corresponding to the geographical indications in case the geographical
indications belong to one province;
b) People’s Committees of
provinces or centrally affiliated cities that are authorized representatives of
other People’s Committees of provinces or centrally affiliated cities where
there are geographical areas corresponding to the geographical indications in
case the geographical indications belong to multiple provinces;
c) People’s Committees of
districts, district-level town, district-level cities, or centrally affiliated
cities or professional agencies of People's Committees of provinces or
centrally affiliated cities authorized to manage the geographical indications
by People's Committees of provinces or centrally affiliated cities;
d) Agencies or
organizations granted rights to manage geographical indications by People's
Committees of provinces or centrally affiliated cities, providing that such
entities represent the benefits of all the organizations and individuals
granted rights to use geographical indications according to Clause 4 Article
121 of the Law on Intellectual Property.
2. Geographical
indication management organizations prescribed in Point d Clause 1 of this
Article may exercise the rights of owners to geographical indications
prescribed in Clause 2 Article 123 and Article 198 of the Law on Intellectual
Property.
3. Regarding foreign
geographical indications, owners and organizations may exercise the rights of
owners to geographical indications. Geographical indication management
organizations shall be identified under the laws of the country of origin of
such geographical indications.
Article 38. Exercising
rights to geographical indication management of geographical indication
management organizations
1. Geographical
indication management organizations prescribed in Clause 1 Article 37 of this
Decree shall:
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b) Manage geographical indications
according to their issued regulations;
c) Prepare and disclose
lists of organizations and individuals using geographical indications based on
notifications of such organizations and individuals. The mentioned lists shall
be updated upon any change;
d) Adopt measures to
manage the use of geographical indications of organizations and individuals
producing products with geographical indications to ensure that such products
meet the standards of the nature, specific quality, and reputation in conformity
with the descriptions of the specific natures of products with geographical
indications;
dd) Monitor and perform
measures to prevent and forbid acts of infringement on rights to geographical
indications; request competent authorities to handle any violation under laws;
e) Report on the
management of geographical indications to industrial property right authorities
once every two years.
2. Geographical
indication management regulations prescribed in Point a Clause 1 of this
Article shall meet the following requirements:
a) Geographical
indication management regulations include:
a1) Products with
geographical indications: names, descriptions (characteristics, specific
quality, production process, production area, etc.) corresponding to the content
in the descriptions of specific characteristics of the products;
a2) Recognition of
organizations and individuals using geographical indications: applications for
recognition of organizations and individuals using geographical indications
include recognition requests, documents proving that organizations and
individuals engage in the production of products with geographical indications
at the geographical areas corresponding to the geographical indications and
other documents (if necessary); the assessment of applications, inspection and
assessment of the authentication of documents, including compliance with
descriptions of specific characteristics of products with geographical
indications (if necessary) and recording of information of organizations and individuals
into the list of organizations and individuals using geographical indications;
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a4) Rights and
responsibilities of organizations and individuals using geographical
indications: organizations and individuals shall ensure the maintenance of the
characteristics, specific quality, and reputation of the products with
geographical indications; provide notifications for geographical indication
management organizations to be recorded in the lists of organizations and
individuals using geographical indications before using geographical
indications; report on the use of geographical indications to geographical
indication management organizations annually, etc.;
a5) Rights and
responsibilities of geographical indication management organizations in the
management of geographical indications;
a6) Funding for
geographical indication management;
a7) Measure to handle
violations of Regulations.
b) Suggestions or
opinions on geographical indication management regulations of organizations and
individuals engaging in the production of products with geographical
indications shall be collected before the issuance.
c) Geographical
indication management regulations shall not include unreasonable limitations of
legal rights to use geographical indications of organizations and individuals
engaging in the production of products with geographical indications.
Article 39. Protecting
agrochemical product test data
1. Agrochemical products
are chemical products used in agriculture and rural development.
2. Agrochemical product
test data shall be protected if such data meets the conditions prescribed in
Clause 1 Article 128 of the Law on Intellectual Property and is requested for
protection by the applicant when applying for marketing authorization.
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Article 40. Using
subject matters of industrial property
1. Acts of circulating
products are prescribed in Point d Clause 1, Point b Clause 2, and Point b
Clause 7 of Article 124 of the Law on Intellectual Property, including selling,
displaying for sale, and transporting products.
2. The use of mark
samples practically different from the protected mark samples by the owners or
persons authorized by the owners is considered as the use of marks according to
Clause 5 Article 124 of the Law on Intellectual Property if the difference is
insignificant and does not change the distinctiveness of marks.
Article 41. Using
inventions on behalf of the State
1. The use of inventions
on behalf of the State for public interests, non-commercial purposes, national
defense and security, disease prevention and treatment, and nutrition for the
people or the satisfaction of other essential needs of society according to
Clause 1 Article 133 of the Law on Intellectual Property shall be performed by
ministries, ministerial agencies, or designated organizations and individuals
based on the issuance of decisions on compulsory transfer of rights to use
inventions prescribed in Point a Clause 1 Article 145 and Paragraph 2 Clause 1
Article 147 of the Law on Intellectual Property. If the imported products or
products with use rights transferred by the receiving party under a production
contract meet the requirements for national defense and security, disease
prevention and treatment, and nutrition for the people or other essential needs
of society, the right holder shall be considered to have fulfilled the use
obligations according to Article 136 of the Law on Intellectual Property.
2. Procedures for issuing
decisions on compulsory transfer of rights to use inventions in case of using
inventions on behalf of the State shall comply with Article 55 and Article 56
of this Decree.
Article 42.
Compensating owners of inventions for late issuance of marketing authorization
of pharmaceutical products
1. In case the procedure
for first-time registration of marketing authorization of pharmaceutical
products falls behind schedule according to Article 131a of the Law on
Intellectual Property, after the marketing authorization is issued, within 2
months from the date the applicant submits the written request following Form
No. 02 Appendix I of this Decree, authorities competent to issue marketing
authorization of pharmaceutical products shall issue confirmation of the late
issuance of marketing authorization, specifying the time delayed.
2. If the owner of the invention
patent has a written document following Form No. 03 Appendix I of this Decree
enclosed with confirming documents of the authority competent to issue
marketing authorization of pharmaceutical products on the late issuance of
marketing authorization as prescribed in Clause 1 of this Article, the
industrial property right authority shall notify the owner of compensation
schemes and shall:
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b) Deduct the paid fees
for the next processing of validity maintenance request if the fees for the use
of the invention patent are paid during the delay;
c) Refund use fees to the
owner of the invention patent within 3 months after receiving the valid
application according to regulations in case the owner decides not to maintain
the validity or the invention patent expires.
3. Regarding
pharmaceutical products produced under many invention patents, the owner shall
be exempted from the use fees of every concerned invention patent.
Chapter III
INVENTIONS, INDUSTRIAL DESIGNS, LAYOUT
DESIGNS THAT ARE RESULTS OF TASKS OF SCIENCE AND TECHNOLOGY FUNDED BY STATE
BUDGET
Article 43. Rights to
register inventions, industrial designs, and layout designs that are the
results of tasks of science and technology funded by the state budget
1. Automatic assignment
of rights to register inventions, industrial designs, and layout designs that
are results of the tasks of science and technology funded by the state budget
prescribed in Clause 1 and Clause 2 Article 86a of the Law on Intellectual
Property means the presiding organization has the rights to register any
invention, industrial design, and layout design when they are created during
the implementation of tasks of science and technology without having to carry
out the procedure for assigning registration rights of the representative of
state ownership.
2. The determination of
rights to register inventions, industrial designs, and layout designs that are
results of tasks of science and technology invested in by multiple sources,
including the state budget prescribed in Clause 2 and Point b Clause 3 Article
86a of the Law on Intellectual Property is as follows:
a) The organization
presiding over the tasks shall have part of the rights to register inventions,
industrial designs, and layout designs corresponding to the state budget
investment. If the inventions, industrial designs, and layout designs are the
results of tasks of science and technology in national defense and security,
part of the rights shall be long to the State and exercised by the
representative of state ownership according to Clause 3 of this Article;
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3.
Representatives of state ownership prescribed in Point c Clause 3 Article 86a
of the Law on Intellectual Property are:
a) The Minister of
Science and Technology of Vietnam regarding national tasks of science and
technology, except for ones prescribed in Point b of this Clause;
b) Ministers, heads of
ministerial agencies, governmental agencies, and other central agencies, and
Chairpersons of People's Committees of provinces regarding national tasks of
science and technology assigned for management and tasks of science and
technology approved by them;
c) Heads of agencies and
organizations regarding tasks of science and technology approved by them.
Article 44.
Obligations to notify and register inventions, industrial designs, and layout
designs that are results of tasks of science and technology funded by state
budget
1. The date of the
invention, industrial design, or layout design created according to Clause 1
Article 136a of the Law on Intellectual Property is the date the presiding
organization receives the written report of the author or acknowledges that the
invention, industrial design, or layout design is created as the results of a
task of science and technology, depending on which condition comes first.
2. Within 1 month from
the date on which the invention, industrial design, or layout design is created
according to Clause 1 of this Article, the presiding organization shall send a
written notification to the representative of state ownership, specifying the
information on such an invention, industrial design, or layout design, registration
needs, and the nation to have the registration application submitted to (if
any). In case of not carrying out the procedure for establishing rights to the
above subjects, the presiding organization shall send a written notification to
the representative of state ownership within 10 days before the end date of the
time limit prescribed in Clause 2 Article 136a of the Law on Intellectual
Property.
3. The author of the
invention, industrial design, or layout design and the presiding organization
shall ensure the confidentiality of the information on such a subject until the
application for registration of the subject is submitted or the representative
of state ownership discloses the content of the invention, industrial design,
or layout design under Clause 2 Article 133a of the Law on Intellectual
Property.
4. The application for
registration of an invention, industrial design, and layout design created as a
result of a task of science and technology funded by the state budget may only
be transferred to an organization established under the law of Vietnam or a
Vietnamese citizen residing in Vietnam. The receiving party shall perform the
corresponding obligations of the presiding organization according to the Law on
Intellectual Property and this Decree.
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a) Send a written
notification to the management authority of science and technology tasks of the
results of the processing of the application for registration of the invention,
industrial design, or layout design within 7 working days from the date the
industrial property right authority issues a decision or notification of the
processing result of the mentioned application;
b) Within 7 working days
after the end date of the time limit prescribed in Clause 1 and Clause 2
Article 113 of the Law on Intellectual Property, send a written notification to
the management authority of science and technology tasks of the invention
application considered withdrawn according to Clause 3 Article 113 of the Law
on Intellectual Property with specific explanations.
c) Send a notification to
the management authority of science and technology tasks for the performance of
the procedure for transferring rights to register the invention, industrial design,
or layout design that is a result of a task of science and technology funded by
the state for other organizations or individuals according to Article 45 of
this Decree in the following cases:
c1) The application for
registration of the invention, industrial design, or layout design is refused
due to invalidity, except for the case where the refusal is due to the subject
specified in the application is not subject to protection in the name of the
invention, industrial design, or layout design according to Articles 59, 64,
and 69 of the Law on Intellectual Property;
c2) The application for
registration of the invention, industrial design, or layout design is withdrawn
before its disclosure according to the regulations.
Article 45. Assigning
rights to register inventions, industrial designs, and layout designs that are
the results of tasks of science and technology funded by the state budget to
other organizations and individuals
1. The representative of state
ownership shall assign the management authority of science and technology to
issue public disclosure on its website or web portal for organizations and
individuals in need to submit applications requesting the assignment of rights
to register inventions, industrial designs, and layout designs in cases
prescribed in Clause 1 Article 133a of the Law on Intellectual Property and
cases prescribed in Point Clause 5 Article 44 of this Decree.
2. Information disclosed
under Clause 1 of this Article includes the name and technical field of the
invention, industrial design, or layout design created as the result of a
science and technology task, assignment method, and information access.
3. The organizations and
individuals in need prescribed in Clause 1 of this Article may access the
detailed information on inventions, industrial designs, or layout designs that
are the results of tasks of science and technology under Clause 2 of this
Article if they submit written requests to management authorities of science and
technology tasks and commit to ensure the confidentiality and use the
information for non-commercial purposes.
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5. Management authorities
of science and technology tasks shall process requests for the assignment of
registration rights under the following regulations:
a) Inspection of the
validity of the application. If the application is invalid, within 5 working
days from the receipt date of the application, the management authority of
science and technology tasks shall send a written notification to the
organization or individual and impose a 10-day time limit from the notification
issuance date for the organization or individual to remedy deficiencies;
b) Within 7 working days
after the end date of the time limit for public notification according to
Clause 1 Article 133a of the Law on Intellectual Property, the management
authority of science and technology tasks shall report on the decision to
assign rights to register the invention, industrial design, or layout design to
the eligible organization or individual to the representative of state
ownership;
c) In case many
organizations and individuals requesting the assignment of rights to register
an invention, industrial design, or layout design have valid applications, the
representative of state ownership shall send written notifications of the
intended assignment to such organizations and individuals for them to
co-exercise the registration rights and be a joint applicant for such an
invention, industrial design, or layout design and impose a 7-working-day time
limit for organizations and individuals to propose any suggestion on the
notification. After the above time limit, if concerned organizations and
individuals disagree to become the joint applicant in writing or do not have
any written response, within 5 working days after the end date of the above
time limit, the representative of state ownership shall issue a decision to
assign the rights to register the invention, industrial design, or layout design
to the organizations and individuals that agree with the notification of the
intended assignment in writing.
6. Organizations and
individuals receiving the assignment of rights shall submit applications for
establishing rights to the invention, industrial design, or layout design
within 6 months after being assigned according to Clause 5 of this Article and
perform other corresponding obligations of the presiding organization according
to the Law on Intellectual Property and this Decree.
7. After 90 days from the
date of notification issuance prescribed Clause 1 of this Article, if it is
unable to assign registration rights to the organizations and individuals in
need, the representative of state ownership shall assign the management
authority of science and technology tasks to publicly disclose that the
invention, industrial design, or layout design is the created as the result of
a task of science and technology on its website or web portal for organizations
and individuals to utilize and use according to laws.
Article 46. Exercising
industrial property rights and adopting measures to protect inventions,
industrial designs, and layout designs that are the results of tasks of science
and technology funded by state budget
1. To ensure the exercise
of industrial property rights and efficient utilization of inventions,
industrial designs, and layout designs that are results of tasks of science and
technology funded by the state budget, the presiding organization issuing
protection titles to such subjects shall:
a) Apply appropriate
measures to protect industrial property rights to the mentioned subjects,
including the performance of necessary procedures for maintaining and renewing
the validity of protection titles of the mentioned subjects;
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2. Annually, the
presiding organization issuing protection titles to inventions, industrial
designs, and layout designs that are the results of tasks of science and
technology funded by the state budget shall submit reports to the management
authority of science and technology tasks, including the following contents:
a) Situation of the
commercial utilization and assessment of the efficiency of the utilization of
inventions, industrial designs, and layout designs;
b) The total profit that
the presiding organization has received from the use and transfer of use
rights, transfer of rights, investment in patents of inventions, industrial
designs, and layout designs, the settlement of remuneration for authors, and
profit distribution enclosed with the financial statement of the presiding
organization independently audited;
c) Measures to protect
rights currently in implementation.
Article 47. Procedures
for permitting other organizations and individuals to use inventions,
industrial designs, and layout designs that are the results of tasks of science
and technology funded by state budget
1. The reasonable period
of time according to Point a Clause 3 Article 133a of the Law on Intellectual
Property is 4 years after the date of invention registration application
submission or 3 years from the date of issuance of the invention patent; 3
years after the submission date of applications for registration of industrial
designs or layout designs or 2 years after the date of issuance of the
industrial design patent, certificate of registration of semiconductor
integrated circuit layout design, depending on which time period ends later.
2. Authorities competent
to approve science and technology tasks according to science and technology
laws shall proactively, or upon requests of other organizations and
individuals, issue decisions to permit the use of inventions, industrial
designs, and layout designs that are the results of science and technology
tasks funded by the state budget in cases prescribed in Clause 3 Article 133a
of the Law on Intellectual Property based on consultation with the Ministry of
Science and Technology of Vietnam.
3. Decisions prescribed
in Clause 2 of this Article shall specify the scope and conditions that may be
used by other organizations and individuals, including:
a) Rights to use
inventions, industrial designs, or layout designs that are exclusive or
non-exclusive;
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c) Organizations and
individuals permitted by competent authorities shall not transfer the rights to
other entities.
Authorities competent to
approve science and technology tasks shall send decisions on use permission to
persons permitted to use inventions, industrial designs, and layout designs,
right holders, and industrial property right authorities.
4. Organizations and
individuals requesting permission to use inventions, industrial designs, or
layout designs that are the results of tasks of science and technology funded
by the state budget prescribed in Clause 2 of this Article shall submit
applications to authorities competent to approve science and technology tasks,
including the following documents:
a) Applications for
permission to use inventions, industrial designs, or layout designs that are
the results of tasks of science and technology funded by the state budget
following Form No. 02 Appendix III of this Decree;
b) Documents proving that
requests for permission to use inventions, industrial designs, or layout
designs that are the results of tasks of science and technology funded by the
state budget have reasonable grounds.
5. Authorities competent to
approve science and technology tasks shall process applications according to
the following regulations:
a) Inspection of the
validity of the application. If the application is invalid, within 5 working
days from the receipt date of the application, the authority competent to
approve science and technology tasks shall send a written notification to the
organization or individual and impose a 20-day time limit from the notification
issuance date for the organization or individual to remedy deficiencies;
b) Within 7 working days
from the receipt date of the valid application, the authority competent to
approve science and technology tasks shall notify the right holder of the
request for permission to use the invention, industrial design, or layout
design and impose a 1-month time limit from the notification issuance date for
the right holder to provide written answers, except for requests subject to
Point b Clause 3 Article 133a of the Law on Intellectual Property where the
authority competent to approve science and technology tasks does not have to
notify the right holder.
c) After the above time
limit, the authority competent to approve science and technology tasks shall
process the request for use permission and suggests of the right holder based
on the applications and suggestions provided by concerned parties. If the
request for permission to use the invention, industrial design, or layout
design does not have reasonable grounds according to Clause 3 Article 133a of
the Law on Intellectual Property, the authority competent to approve science
and technology tasks shall issue a decision to refuse the request with specific
explanations. If the request has reasonable grounds, the authority competent to
approve science and technology tasks shall issue a decision to permit the use.
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Chapter IV
SECRET INVENTION
Article 48.
Applications for registration of secret inventions
1. The application for
registration of a secret invention shall be submitted in paper form to the
industrial property right authority in compliance with Clause 1 and Clause 2
Article 89 of the Law on Intellectual Property.
2. An application for
registration of a secret invention shall include:
a) Documents prescribed
in Article 100 of the Law on Intellectual Property bearing the seal of
confidentiality according to state secret protection laws (except for invoices
for fees and charges);
b) Documents proving that
the registration subject in the application is a state secret according to
state secret protection laws.
3. The application for
secret invention registration shall be accepted if the mandatory information
and documents prescribed in Clause 1 Article 108 of the Law on Intellectual
Property and Point b Clause 2 of this Article are provided.
Article 49. Procedures
concerning secret inventions
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2. An application for
secret invention registration shall have its content appraised within 18 months
from the date the application is accepted as valid if the request for a content
appraisal is submitted before the date the application is accepted as valid or
from the date of receipt of the request for a content appraisal if such a
request is submitted after the date the application is accepted as valid.
3. Any document
specifying suggestions of a third party or objections shall be considered as a
source of information serving the processing of the application for secret
invention registration. If it is not possible to determine the information or
whether the disclosure of information in documents according to this Clause is
in compliance with state secret protection laws, the industrial property right
authority shall cooperate with the Ministry of Public Security of Vietnam in
determining the appropriateness of the disclosure of information in documents
according to this Clause to state secret protection laws.
4. Complaint procedures
prescribed in Article 119a of the Law on Intellectual Property shall not be
applicable to decisions or notifications of secret invention registration
applications and other applications concerning secret inventions.
5. Secret invention
registration applications and secret invention protection titles shall not be
disclosed on the Industrial Property Official Gazette.
Article 50. Processing
declassified secret invention registration applications and secret invention
protection titles
1. Secret invention
registration applications and secret invention protection titles shall be
declassified according to Article 22 of the Law on State Secret Protection.
2. In case of clear
grounds indicating that the invention in the secret invention registration
application or the invention protected under the protection title is not in
compliance with Clause 1 Article 2 of the Law on State Secret Protection, the
industrial property right authority shall issue a notification requesting the
applicant to re-determine whether such an invention is a state secret according
to state secret protection laws and impose a 3-month time limit from the notification
issuance date for the applicant to reply.
3. Regarding cases of
declassification prescribed in Clause 1 of this Article, authorities and
organizations competent to conduct declassification according to state secret
protection laws shall provide notifications for industrial property right
authorities, applicants, and owners of invention protection titles of the
declassification.
4. Any Invention
registration application that is declassified according to Clause 1 of this
Article or confirmed to not be state secrets by the applicant according to
Clause 2 of this Article shall have a submission date similar to the submission
date of the secret invention registration application and continue to be
processed under the Law on Intellectual Property regarding invention
registration applications.
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6. In case of permitted
declassification, the declassified secret invention registration application
and secret invention patent/secret utility solution patent shall be disclosed
on the Industrial Property Official Gazette within 3 months from the date of
declassification.
Article 51.
Registering secret inventions abroad
Submission of secret
invention registration applications abroad shall be performed in compliance
with state secret protection laws.
Article 52. Managing
the use of secret inventions
The use of secret inventions
protected under Article 123 of the Law on Intellection Property shall be in
compliance with state secret protection laws.
Chapter V
TRANSFER OF INDUSTRIAL PROPERTY RIGHTS
Article 53.
Compensating for rights to use inventions transferred under compulsory
decisions
1. Compensation for
rights to use an invention under a compulsory decision according to Point d
Clause 1 Article 146 of the Law on Intellectual Property shall be determined
according to the economic value of the transferred rights with consideration
for the following elements:
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b) Investment in the
creation of the invention, including consideration for the state budget funding
(if any);
c) Profits from the use
of the invention;
d) Remaining validity
period of the protection title;
dd) Necessity level of
the transfer of the rights to use the invention;
e) Transfer scope and
time limit;
g) Other elements
directly determining the economic value of the transferred use rights.
2. Compensation for
rights to use transferred inventions under compulsory decisions in case of
failed agreement between the receiving party and the right holder shall not
exceed 5% of the net selling price of products produced according to the invention,
providing that compliance with Clause 1 of this Article is ensured.
3. If necessary, the
authority competent to issue decisions on the compulsory transfer of invention
use rights may establish a council to determine the compensation according to
laws.
Article 54. Rights to
request decisions on compulsory transfer of invention use rights
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Article 55.
Applications for decisions on compulsory transfer of invention use rights
1. An application for a
decision on compulsory transfer of invention use rights includes the following documents:
a) Statement on request
for compulsory transfer of invention use rights following Form No. 04 Appendix
I of this Decree;
b) Documents proving that
the request for the decision on compulsory transfer of invention use rights has
reasonable grounds according to laws as prescribed in Clauses 2, 3, 4, 5, 6,
and 7 of this Article;
c) Authorizing documents
(in case the request is submitted by a representative);
d) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the authority competent to settle this
procedure).
2. If the request for the
decision on compulsory transfer of invention use rights is based on Point a
Clause 1 Article 145 of the Law on Intellectual Property, the application shall
specify the practical needs to use the invention for public purposes,
non-commercial purposes, national defense and security, disease prevention and
treatment, or nutrition for the people or other essential needs of society and
contain documents at the time of submission proving that the owner of the
invention patent has not used the invention and such an act will affect the
achievement of the listed purposes.
3. If the request for the
decision on compulsory transfer of invention use rights is based on Point b
Clause 1 Article 145 of the Law on Intellectual Property, the application shall
contain documents proving that the owner of the invention patent has not
fulfilled obligations of using the invention prescribed in Clause 1 Article 136
and Clause 5 Article 142 of the Law on Intellectual Property. The application
submission time must be 4 years after the submission date of the registration
application for the concerned invention and 3 years after the issuance date of
the invention patent.
4. If the request for the
decision on compulsory transfer of invention use rights is based on Point c
Clause 1 Article 145 of the Law on Intellectual Property, the application shall
contain documents proving that the person in need to use the invention fails to
reach an agreement with the owner of the invention patent regarding the
conclusion of invention use contract after a reasonable period of negotiation
over the reasonable price and commercial conditions, specifying the need to use
the invention, time spent on negotiating, price, and specific commercial
conditions proposed by the person in need.
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6. If the request for the
decision on compulsory transfer of invention use rights in the field of
semiconductor technology is based on Point a and Point d Clause 1 Article 145
and Point b Clause 1 Article 146 of the Law on Intellectual Property, the
application shall contain documents providing that the use of the concerned
invention is only for public or non-commercial purposes or the owner of the
invention patent has committed anti-competitive acts banned by competition
laws.
7. If the request for the
decision on compulsory transfer of invention use rights is based on Point dd
Clause 1 Article 145 of the Law on Intellectual Property, the application shall
contain documents proving the use of the invention is for the needs for foreign
pharmaceutical products for disease prevention and treatment eligible for
importation according to Article 31bis of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Article 56. Procedures
for processing applications for decisions on compulsory transfer of invention
use rights
1. Applications for
decisions on compulsory transfer of invention use rights shall be submitted in
compliance with the following regulations:
a) Applications subject
to cases prescribed in Points b, c, and d Clause 1 Article 145 of the Law on Intellectual
Property shall be submitted to the Ministry of Science and Technology of
Vietnam;
b) Applications subject
to cases prescribed in Points a and dd Clause 1 Article 145 of the Law on
Intellectual Property shall be submitted to ministries and ministerial agencies
concerning inventions;
c) The Ministry of
Science and Technology of Vietnam, ministries, and ministerial agencies shall
designate an authority to receive and appraise applications prescribed in this
Clause (hereinafter referred to as "application appraisal
authority").
2. An applications for a
decision on compulsory transfer of invention use rights shall be appraised as
follows:
Within 2 months from the
date of receipt of the application, the application appraisal authority shall
assess the application according to the following regulations:
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If the request is subject
to cases prescribed in Point a Clause 1 Article 145 of the Law on Intellectual
Property and the use of the invention for public and non-commercial purposes,
the concerned Ministry or ministerial agency may issue a decision on compulsory
transfer of invention use rights without having to request the owner of the
invention patent to provide any suggestion or parties to negotiate.
b) If the request for the
decision on transfer of invention use rights does not have any reasonable
ground according to Article 145 of the Law on Intellectual Property, the
application appraisal authority shall report the results of the application
assessment to and request the Minister of Science and Technology of Vietnam or
the concerned Minister or head of the concerned ministerial agency to issue a
notification of intended refusal, specifying the reasons and imposing a 1-month
time limit from the notification issuance date for the applicant to propose any
suggestion on the intended refusal.
The time when the
applicant remedies deficiencies of the application or has objections shall not
be included in the time limit for application assessment.
c) Regarding applications
subject to cases prescribed in Point a and Point dd Clause 1 Article 145 of the
Law on Intellectual Property, application appraisal authorities of ministries
and ministerial agencies shall send copies of such applications to the Ministry
of Science and Technology of Vietnam for suggestions (through the application
appraisal authority of the Ministry of Science and Technology of Vietnam)
before presenting them to the Ministers and heads of ministerial agencies for
decisions according to Points a and b of this Clause. Within 20 days from the
application receipt date, the application appraisal authority of the Ministry
of Science and Technology of Vietnam shall assess the applications and submit
reports to the Minister of Science and Technology for written requests for the
concerned Ministers or heads of concerned ministerial agencies to issue
decisions on compulsory transfer of invention use rights or refusal
notifications.
3. Within 20 days from
the date of receipt of the report on the results of the application assessment
of the application appraisal authority of the Ministry of Science and
Technology of Vietnam, the Minister of Science and Technology of Vietnam shall
consider issuing a decision on compulsory transfer of invention use rights or
send notification of refusal of the request for compulsory transfer of
invention use rights to the applicant, specifying the reasons.
Within 20 days from the date
of receipt of the written request of the Minister of Science and Technology of
Vietnam, the concerned Minister or head of the concerned ministerial agency
shall consider issuing a decision on compulsory transfer of invention use
rights or send notification of refusal of the request for compulsory transfer
of invention use rights to the applicant, specifying the reasons.
In case of disagreement
with the request of the Minister of Science and Technology of Vietnam, the
concerned Minister or head of the concerned ministerial agency shall provide a
written notification, specifying the reasons.
4. The concerned Minister
or head of the concerned ministerial agency shall send the decision on the
compulsory transfer of invention use rights to the receiving party, owner of
the invention patent, and application appraisal authority of the Ministry of
Science and Technology of Vietnam.
The application appraisal
authority of the Ministry of Science and Technology of Vietnam shall record the
decision to the National Industrial Property Register within 1 month and
disclose it on the Industrial Property Official Gazette within 2 months from
the date of decision issuance.
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1. The termination of the
invention use rights under a compulsory decision shall be imposed or decided by
a Minister, head of a ministerial agency, or person issuing the decision.
2. A request for the
termination of invention use rights under a compulsory decision shall include
the following documents:
a) Document requesting
the termination of invention use rights under a compulsory decision;
b) Documents proving that
grounds leading to the transfer of invention use rights under a compulsory
decision no longer exist and are unlikely to reappear and the termination of
invention use rights does not cause any damage to the receiving party under a
compulsory decision;
c) Authorizing documents
(in case the request is submitted by a representative);
d) Copies of payment invoices
of fees and charges (in cases of paying fees and charges via postal services or
directly to the account of the application appraisal authority of the Ministry
of Science and Technology of Vietnam).
3. Procedures for
receiving and processing requests for termination of invention use rights under
compulsory decisions and issuing termination decisions shall be carried out
similarly to the procedures for receiving and processing requests for transfer
of invention use rights under compulsory decisions prescribed in Article 55 of
this Decree.
Article 58.
Applications for registration of contracts of transfer of industrial property
rights
1. An application for
registration of a contract of transfer of industrial property rights shall
include a set of the following documents:
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b) 1 copy of the contract
(original or certified copy according to regulations). If the contract is in a
language other than Vietnamese, it must be enclosed with a Vietnamese
translation. If the contract has many pages, each page must bear the
confirmation signatures of related parties or an affixed seal;
c) Original protection
title in case it is granted in paper form;
d) Agreement documents of
co-owners on the transfer of industrial property rights in case the
corresponding industrial property rights are jointly owned;
dd) Authorizing documents
(in case the request is submitted by a representative);
e) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the industrial property right
authority);
g) Regarding applications
for registration of contracts of transfer of collective marks or certification
marks, aside from the above documents, the following documents are also
required:
g1) Regulations on the
use of collective marks or certification marks of the receiving parties
according to Article 105 of the Law on Intellectual Property;
g2) Documents proving the
rights to submit applications of the receiving parties regarding the
certification marks or collective marks according to Clause 3 and Clause 4
Article 87 of the Law on Intellectual Property.
In this case, the industrial
property right authority shall re-appraise rights to submit applications and
regulations on the use of marks. Applicants shall pay application appraisal
fees aside from fees and charges for applications for registration of contracts
of transfer of industrial property rights according to regulations.
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a) Statement on
registration of the contract of transfer of the subject matter of industrial
property following Form No. 02 Appendix IV of this Decree;
b) 2 copies of the
contract (original or copy enclosed with the original for comparison, except
for certified copy under regulations). If the contract is in a language other
than Vietnamese, it must be enclosed with a Vietnamese translation. If the
contract has many pages, each page must bear the confirmation signatures of
related parties or an affixed seal;
c) Agreement documents of
co-owners on the transfer of the subject matter of industrial property in case
the corresponding industrial property rights are jointly owned;
d) Authorizing documents
(in case the request is submitted by a representative);
dd) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the industrial property right
authority).
3. Each application for
registration of the contract of transfer of industrial property rights shall be
recorded once for every transfer step. In case the subject matter of industrial
property is transferred through many steps, each step requires the submission
of a separate application for registration of the contract of transfer of
industrial property rights.
Article 59. Procedures
for processing applications for registration of contracts of transfer of
industrial property rights
1. In case the
application for registration of the contract of transfer of industrial property
rights does not have any deficiency prescribed in Clause 3 of this Article, the
industrial property right authority shall:
a) Issue a decision to
record the transfer of industrial property rights (regarding a contract of
transfer of industrial property rights) and a decision to issue a certificate
of registration of the contract of transfer of subject matter of industrial
property (regarding a contract of transfer of rights to use subject matter of
industrial property);
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c) Regarding a contract
of transfer of rights to use subject matter of industrial property: issue a
certificate of registration of the contract of transfer of rights to use
subject matter of industrial property to the applicant; stamp the registration
on 2 copies of the contract, send 1 to the applicant and archive the other;
d) Record the transfer of
industrial property rights to the National Industrial Property Register;
dd) Issue a decision to
record the transfer of industrial property rights and a decision to issue a
certificate of registration of the contract of transfer of rights to use
subject matter of industrial property on the Industrial Property Official
Gazette within 2 months from the decision issuance date.
2. In case the
application for registration of the contract of transfer of industrial property
rights has the deficiencies prescribed in Clause 3 of this Article, the
industrial property right authority shall:
a) Issue a notification
of the intended refusal of the contract registration, specifying the
deficiencies and imposing a 2-month time limit from the notification issuance
date for the applicant to amend the deficiencies or object to the intended
refusal;
b) Issue a decision on
the refusal of the contract registration if the applicant fails to amend the
deficiencies, provides inadequate amendments, does not have any objection, or
provides inadequate objections after the imposed time limit.
3. An application for
registration of the contract of transfer of industrial property rights shall be
considered to have deficiencies in one of the following cases:
a) Invalid statement;
b) Lack of one of the
mandatory documents;
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d) Copies of the contract
without any validity confirmation;
dd) Name or address of
the transferring party in the contract is not consistent with the corresponding
information in the protection title or the contract that is the ground for the
transfer of rights, authorizing document, or statement; name or address of the
receiving party in the contract is not consistent with the name and address in
the authorizing document or statement;
e) The contract does not
sufficiently have the signatures (and seals, if any) of the transferring party
and the receiving party;
g) The transferring party
is not the owner of the protection title;
h) The subject matter of
industrial property is no longer protected under a protection title or subject
to a dispute;
i) The transfer contract
lacks the corresponding mandatory contents prescribed in Article 140 or Clause
1 Article 144 of the Law on Intellectual Property;
k) The contract has
content not in compliance with regulations on conditions for restricting the
transfer of industrial property rights prescribed in Article 139 of the Law on
Intellectual Property or clauses restricting the rights of the receiving party
of rights to use the subject matter of industrial property unreasonably as
prescribed in Clause 2 Article 144 of the Law on Intellectual Property;
l) There are grounds
confirming that the transfer of industrial property rights infringes upon the
industrial property rights of a third party.
4. The time limit for
processing the application for registration of the contract of transfer of
industrial property rights is 2 months. The time limit for the applicant to
amend deficiencies shall not be included in the processing time of the
application.
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6. Before the industrial
property right authorities issue any decision to record or refuse to record the
registration of the contract of transfer of industrial property rights, if one
of the concerned parties wishes to withdraw the application for registration of
the contract of transfer of industrial property rights, there must be mutual
consent from both parties to the withdrawal of the submitted application,
except for cases of application withdrawal due to inability to remedy
deficiencies requested by the industrial property right authority.
Article 60.
Restrictions on transfer of rights to marks
1. The transfer of rights
to a mark prescribed in Clause 4 Article 139 of the Law on Intellectual
Property shall be considered to confuse the properties and origins of goods and
services bearing such a mark in the following cases:
a) The transferred mark
is identical or similar to the point of causing confusion over other marks
under the protection of certificates of mark registration or international
registration of marks owned by the transferring party;
b) A part of the goods
and services bearing the transferred mark is similar to the part of the
remaining goods and services of the list of goods and services owned by the
transferring party, and the use of such a mark and part of goods and services
of the receiving party may potentially cause confusion over the commercial
origins of goods and services (in case of the scope of transfer is a part of
the list of goods and services);
c) The transferred mark
contains elements that are signs causing confusion or misunderstanding over the
origins, quality, value, etc., of the goods and services within the transfer scope
for users.
2. Rights to collective
marks and certification marks shall only be transferred to organizations
meeting the requirements regarding organizations entitled to the registration
of such collective marks and certification marks.
Article 61. Recording
content amendments, renewal, and premature termination of validity of contracts
of transfer of rights to use subject matters of industrial property
1. Content amendments,
renewal, and premature termination of the validity of a registered contract of
transfer of rights to use the subject matter of industrial property shall be
recorded at the industrial property right authority according to this Article.
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a) An application for the
recording of content amendments, renewal, or premature termination of the
validity of the contract of transfer of rights to use the subject matter of
industrial property shall be made in writing and include the following
documents:
a1) Statement on the
request for the recording of content amendments, renewal, or premature
termination of the contract of transfer of rights to use the subject matter of
industrial property following Form No. 03 Appendix IV of this Decree;
a2) Original certificate
of registration of the contract of transfer of rights to use the subject matter
of industrial property (in case of registration of content amendments or
renewal of the validity of the contract);
a3) Documents proving the
amendments to names and addresses of parties in the contract;
a4) Agreements and
documents recording specific clauses that need to be amended in the contract,
including the renewal or premature termination of the contract;
a5) Authorizing documents
(in case the request is submitted by a representative);
a6) Copies of payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the industrial property right authority).
b) An application for
contract renewal shall be submitted within 1 month from its end prescribed in
the certificate of registration of the contract of transfer of rights to use
the subject matter of industrial property.
3. Within 1 month from
the receipt date of the application for the recording of content amendments,
renewal, or premature termination of the contract, the industrial property
right authority shall assess the application in compliance with the following
regulations:
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b) If the application has
deficiencies, the industrial property right authority shall issue a
notification of the intended refusal of the recording of content amendments,
renewal, or premature termination of the contract of transfer of rights to use
the subject matter of industrial property, specifying the deficiencies of the application
and imposing a 2-month time limit from the date of notification issuance for
the applicant to amend such deficiencies or have objections to the intended
refusal.
After the imposed time
limit, if the applicant fails to amend deficiencies or provides inadequate
amendments, does not have any object, or provides inadequate objections, the
industrial property right authority shall issue a decision to refuse the
recording of content amendments, renewal, or premature termination of the
contract of transfer of rights to use the subject matter of industrial
property.
Chapter VI
INDUSTRIAL PROPERTY REPRESENTATIVES
Article 62. Training
program on industrial property laws
1. The training program on industrial property laws shall
ensure the provision of necessary knowledge and skills in utilizing industrial
property laws for learners to resolve matters concerning the protection of
industrial property rights with a minimum duration of 20 studying units or 18
credits (including at least 40% of the training duration is for practice,
professional internship, or graduation internship).
2. The Ministry of Science and Technology of Vietnam shall
develop a framework training program on industrial property laws following the
criteria prescribed in Clause 1 of this Article.
3. The training courses on industrial property laws prescribed
in Point d Clause 2 and Clause 2a Article 155 of the Law on Intellectual
Property taught under the framework program prescribed in Clause 2 of this
Article shall be recognized by the Ministry of Science and Technology of
Vietnam.
4. Individuals shall
be considered to have graduated from the training courses on industrial
property laws prescribed in Point d Clause 2 and Clause 2a Article 155 of the
Law on Intellectual Property if they graduate from the training course on
industrial property rights and meet the requirements prescribed in Clause 2 of
this Article and are recognized by the Ministry of Science and Technology of
Vietnam according to Clause 3 of this Article.
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1. The professional inspection of industrial property
representatives shall be performed to assess the capacity of utilizing
industrial property laws to resolve specific matters concerning the
establishment and protection of industrial property rights.
2. The industrial property right authority shall periodically
organize the professional inspection of industrial property representatives
once every 2 years. The plan to organize the professional inspection of
industrial property representatives shall be disclosed on the web portal of the
industrial property right authority.
3. The results of the inspection shall be notified to the
participants by the industrial property right authority. Participants may
request the industrial property right authority to re-examine the results of
the inspection.
4. The results of the inspection of individuals complying with
Point e Clause 2 Article 155 of the Law on Intellectual Property shall have a
validity of 5 years (from the date of notification of inspection results) for
requesting the industrial property authority to issue the practicing
certificate of industrial property representative services.
5. The council for professional inspection of industrial
property representatives established by the industrial property right authority
shall organize the professional inspection of industrial property
representatives according to the regulation on professional inspection of
industrial representatives issued by the industrial property right authority.
6.
Individuals meeting the requirements prescribed in Points a through dd Clause 2
Article 155 of the Law on Intellectual Property may register for participation
in the professional inspection of industrial property representatives according
to Clause 7 of this Article.
7. An
application for participation in the inspection, submitted to the industrial
property right authority, shall include a set of the following documents:
a) Statement
on inspection registration, following Form No. 01 Appendix V of this Decree;
b) Copies of
the bachelor’s degree or equivalences prescribed in Point c Clause 2 Article
155 of the Law on Intellectual Property (the original shall be presented for
comparison, excluding cases of certified copies);
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d) 2 photos
sized 3 x 4 (cm);
dd) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority).
8. The
application for inspection registration shall be processed by the industrial
property right authority within 20 days from the receipt date according to the
following procedures:
a) If the
application is valid, the industrial property right authority shall notify the
applicant of the eligibility for participation in the inspection while
notifying the expected time, location, and schedule;
b) If the
application is invalid, the industrial property right authority shall issue a
notification of the deficiencies of the application and impose a 1-month time
limit from the notification issuance date for the applicant to amend such
deficiencies;
c) If the
applicant fails to amend the deficiencies or provides inadequate amendments,
the industrial property right authority shall issue a decision to refuse the
acceptance of the application for inspection registration, specifying the
reasons.
Article 64. Issuing,
reissuing, and revoking practicing certificates of industrial property representative
services.
1. The issuance of practicing certificates of industrial
property representative services shall be performed as follows:
a)
Industrial property right authorities shall issue practicing certificates of
industrial property representative services to individuals meeting the
requirements prescribed in Clause 2 and Clause 2a Article 155 of the Law on
Intellectual Property if they request the issuance and pay the fees prescribed
by laws;
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b1)
Statement on request for the issuance of the practicing certificate of
industrial property representative services following Form No. 02 Appendix V of
this Decree;
b) Copies of
the graduation certificate of the course on industrial property laws and copies
of the lawyer card regarding cases of request for issuance of practicing
certificates prescribed in Clause 2a Article 155 of the Law on Intellectual
Property (the original shall be presented for comparison, excluding cases of
certified copies);
b3) 2 photos
sized 3 x 4 (cm);
b4) Copies
of citizen ID (the original shall be presented for comparison, excluding cases
of certified copies), except for the case where the statement on request for
the issuance of the practicing certificate of industrial property
representative services already has information on the citizen ID number;
b5) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority).
c) The
application for issuance of the practicing certificate of industrial property
representative services shall be processed by the industrial property right
authority within 1 month from the receipt date under the following procedures:
c1) If the
application is valid, the industrial property right authority shall issue a
decision on the issuance of the practicing certificate of industrial property
representative services, specifying the name, date of birth, permanent address,
citizen ID number, certificate number, and practicing field of the certificate
holder; record the issuance to the National Industrial Property Representative
Register and disclose the information on the Industrial Property Official
Gazette and its web portal within 2 months from the decision issuance date;
c2) If the
application is invalid, the industrial property right authority shall issue a
notification of the deficiencies of the application and impose a 1-month time
limit from the notification issuance date for the applicant to amend such
deficiencies;
c3) If the
applicant fails to amend the deficiencies or provides inadequate amendments,
the industrial property right authority shall issue a decision to refuse the
issuance of the practicing certificate of industrial property representative
services, specifying the reasons.
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2. The
re-issuance of practicing certificates of industrial property representative
services shall be performed as follows:
a) In the
following cases, the industrial property right authority shall re-issue practicing
certificates of industrial property representative services if the industrial
property representatives submit requests and pay the fees and charges according
to regulations:
a1) The
information in the practicing certificate of industrial property representative
services prescribed in Point c1 Clause 1 of this Article has been changed;
a2) The
practicing certificate of industrial property representative services is lost,
defective, or damaged (torn, dirty, faded, etc.) to the point of being unusable;
a3)
Eligibility for the practicing certificate of industrial property
representative services is restored in case of revocation of the mentioned
certificate due to inability to meet the requirements prescribed in Clause 2
and Clause 2a Article 155 of the Law on Intellectual Property.
b) An
application for re-issuance of the practicing certificate of industrial
property representative services, submitted to the industrial property right
authority, shall include a set of the following documents:
b1) Statement
on the request for the re-issuance of the practicing certificate of industrial
property representative services following Form No. 04 Appendix V of this
Decree;
b2) 2 photos
sized 3 x 4 (cm);
b3) Copies
of citizen ID (the original shall be presented for comparison, excluding cases
of certified copies), except for the case where the statement on request for
the re-issuance of the practicing certificate of industrial property
representative services already has information on the citizen ID number, regarding
the case prescribed in Point a1 of this Clause;
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b5) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority).
c) The
application for re-issuance of the practicing certificate of industrial
property representative services shall be processed by the industrial property
right authority within 20 days from the receipt date following procedures
similar to the procedure for issuing the practicing certificate of industrial
property representative services prescribed in Point c Clause 1 of this
Article.
d) If the
practicing certificate of industrial property representative services is
defective due to an error of the industrial property right authority, the mentioned
authority shall re-issue the practicing certificate of industrial property
representative services within 5 working days from the date of receipt of the
request of the certificate holder without charging any fee.
3. The revocation of
practicing certificates of industrial property representative services shall be
performed as follows:
a) A
practicing certificate of industrial property representative services shall be
revoked by the industrial property right authority in the following cases:
a1) The
certificate holder no longer satisfies the requirements prescribed in Clause 2
and Clause 2a Article 155 of the Law on Intellectual Property;
a2) The
certificate holder has his/her practicing certificate revoked under a decision
of the industrial property right authority according to Clause 4 Article 156 of
the Law on Intellectual Property;
b) The
industrial property right authority proactively or upon a request of an
organization or individual revokes the practicing certificate of industrial
property representative services if there are grounds confirming that the
certificate holder falls into one of the cases prescribed in Point a of this
Clause;
c) Any
organization or individual that requests the revocation of a practicing
certificate of industrial property representative services shall submit a set
of documents as follows:
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c2)
Documents proving grounds for the revocation of the practicing certificate of
industrial property representative services.
d)
Procedures for the revocation of a practicing certificate of industrial
property representative services:
d1) If an organization or individual requests the
revocation of the practicing certificate of industrial property representative
services according to Point c of this Clause, within 1 month from the date of
receipt of the request, the industrial property right authority shall provide a
written notification of such a request for the certificate holder and impose a
1-month time limit from the notification date for the certificate holder to
provide any suggestion. The industrial property right authority shall, based on
the suggestions of concerned parties, issue a decision to revoke the practicing
certificate or refuse the revocation of the practicing certificate and send it
to the concerned parties;
d2) If there are grounds confirming that the certificate
holder no longer satisfies the requirements prescribed in Clause 2 and Clause
2a Article 155 of the Law on Intellectual Property, the industrial property
right authority shall issue a written notification of the intended revocation
of the practicing certificate of industrial property representative services to
the certificate holder and impose a 1-month time limit from the notification
date for the certificate holder to provide any suggestion. d2) If there are
grounds confirming that the certificate holder no longer satisfies the
requirements prescribed in Clause 2 and Clause 2a Article 155 of the Law on
Intellectual Property, the industrial property right authority shall issue a
written notification of the intended revocation of the practicing certificate
of industrial property representative services to the certificate holder and
impose a 1-month time limit from the notification date for the certificate
holder to provide any suggestion.
d3) In case of a decision to revoke the practicing
certificate of industrial property representative services of a competent
authority, within 1 month from the receipt date of the mentioned decision, the
industrial property right authority shall issue a decision to revoke the
practicing certificate of industrial property representative services;
d4) The industrial property right authority shall record the decision on
the revocation of the practicing certificate of industrial property
representative services to the National Industrial Property Representative
Register and disclose it on the Industrial Property Official Gazette within 2
months from the decision issuance date.
Article 65. Recording and removing names of industrial
property representatives
1. The recording of organizations eligible for industrial
property representative services shall be performed as follows:
a)
Organizations satisfying the requirements prescribed in Article 154 of the Law
on Intellectual Property shall be recorded as industrial property
representative service providers in the National Industrial Property
Representative Register and disclosed on the Industrial Property Official Gazette
by the industrial property right authority if they submit requests and pay the
fees prescribed by laws.
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b) An
application for the recording of an industrial property representative service
provider to the National Industrial Property Representative Register submitted
to the industrial property right authority by an organization satisfying the
requirements prescribed in Article 154 of the Law on Intellectual Property
shall include a set of the following documents:
b1)
Statement on the request for the recording of the industrial property
representative provider following Form No. 05 Appendix V of this Decree, which
adequately specifies the information on the organization and the information on
the authorized industrial property representative;
b2) Copies
of the recruitment decision or labor contract of the organization with the
holder of the practicing certificate of industrial property representative
services (the original shall be presented for comparison, excluding cases of
certified copies);
b3) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority).
c) Within 20
days from the receipt date of the application for the recording of the
industrial property representative service provider, the industrial property
right authority shall assess the application following procedures similar to
the procedure for issuing the certificate of industrial property representative
services prescribed in Point c Clause 1 Article 64 of this Decree.
2. The recording of industrial property representatives shall
be performed as follows:
a)
Individuals eligible for practicing industrial property services may request
the industrial property right authority to record them as the industrial
property representatives in the National Industrial Property Representative
Register and disclose the information on the Industrial Property Official
Gazette according to Clause 1 Article 156 of the Law on Intellectual Property
and this Clause, and pay the fees prescribed by regulations.
b) An
application for the recording of an industrial property representative to the
National Industrial Property Representative Register submitted to the industrial
property right authority by an individual satisfying the requirements
prescribed in Article 155 of the Law on Intellectual Property shall include a
set of the following documents:
b1)
Statement on the request for the recording of the industrial property
representative following Form No. 06 Appendix V of this Decree, which
adequately specifies the information on the individual and the information on
the industrial property representative service provider where the individual
works;
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b3) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority).
c) Within 20
days from the receipt date of the application for the recording of the
industrial property representative, the industrial property right authority
shall assess the application following procedures similar to the procedure for
issuing the certificate of industrial property representative services
prescribed in Point c Clause 1 Article 64 of this Decree.
3. The recording of changes to the information of industrial
property representative service providers shall be performed as follows:
a) The
industrial property representative service provider may request the industrial
property right authority to record the changes concerning the information
recorded in the National Industrial Property Representative Register (including
the full name, transaction name, abbreviated name, and address of the
organization, business field of industrial property representative services,
full name and certificate number of the industrial property representative in
the organization) according to this Point and shall pay the fees prescribed by
regulations.
b) An
application for the recording of changes to the information of the industrial
property representative service provider submitted to the industrial property
right authority shall include the following documents:
b1)
Statement on the request for the recording of changes to the information of the
industrial property representative service provider following Form No. 07
Appendix V of this Decree;
b2) Copies
of the amended certificate of business registration or amended certificate of
operation registration in the case of changing the name and address (the
original shall be presented for comparison, excluding cases of certified
copies), excluding the case where the enterprise identification number is
declared in the statement on request for the recording of changes to the
industrial property representative service provider;
b3) Copies of payment invoices of fees and charges (in
cases of paying fees and charges via postal services or directly to the account
of the industrial property right authority).
c) Within 20
days from the receipt date of the application for the recording of changes to
the information of the industrial property representative service provider, the
industrial property right authority shall assess the application following
procedures similar to the procedure for issuing the certificate of industrial
property representative services prescribed in Point c Clause 1 Article 64 of
this Decree.
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a) The
industrial property representative service provider shall perform the procedure
for removing its name from the National Industrial Property Representative
Register at the industrial property right authority in the following cases:
a1) The
industrial property representative service provider abandons or terminates the
business of industrial property representative services;
a2) The
industrial property representative service provider no longer satisfies the
requirements prescribed in Article 154 of the Law on Intellectual Property;
b) An
application for the removal of the name of the industrial property
representative service provider submitted to the industrial property right
authority shall include the following documents:
b1) State on
request for the removal of the name of the industrial property representative
service provider following Form No. 08 Appendix V of this Decree;
b2)
Documents proving that the organization is no longer eligible for engaging in
industrial property representative services;
b3) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority).
c) Within 20
days from the receipt date of the application for the removal of the name of
the industrial property representative service provider, the industrial
property right authority shall assess the application following procedures
similar to the procedure for issuing the certificate of industrial property
representative services prescribed in Point c Clause 1 Article 64 of this
Decree.
5. The removal of the names of industrial property
representatives shall be performed as follows:
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b) An
application for the removal of the name of the industrial property representative
submitted to the industrial property right authority shall include the
following documents:
b1) State on
request for the removal of the name of the industrial property representative
following Form No. 09 Appendix V of this Decree;
b2) Documents
proving that the holder of the practicing certificate of industrial property
representative services no longer satisfies the practicing requirements
prescribed in Point b Clause 1 Article 155 of the Law on Intellectual Property
(decision on termination of the labor contract or other documents);
b3) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority);
c) Within 20
days from the receipt date of the application for the removal of the name of
the industrial property representative, the industrial property right authority
shall assess the application following procedures similar to the procedure for
issuing the certificate of industrial property representative services
prescribed in Point c Clause 1 Article 64 of this Decree.
Chapter VII
MEASURES TO PROMOTE
INDUSTRIAL PROPERTY
Article 66. Provision of training and advanced training for
industrial property personnel
1. The Ministry of Science and Technology of Vietnam shall
elaborate on the content, training program, and advanced training in industrial
property.
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Article 67. Ensuring industrial property information
1. The industrial property information system includes a
collection of information concerning all of the subject matters of industrial
property protected in Vietnam, information sorted for specific purposes or
themes of foreign subject matters of industrial property categorized and
arranged appropriately and conveniently for search (lookup), distribution, and
use.
2. The Ministry of Science and Technology of Vietnam shall
develop and manage industrial property information storages and develop tools
to classify, search, guide the search, and use the domestic and foreign
industrial property information; organize the supply of information adequately,
promptly, and accurately to ensure the access to information storages for any subject
that wishes to use such information for the establishment and protection of
industrial property rights, research, development, and business; manage and
carry out the sharing, connection, utilization, international cooperation, and
other operations concerning the national database on industrial property.
Article 68. Extending the use scope of inventions, industrial
designs, and layout designs of the State
1. Regarding inventions, industrial designs, and layout
designs owned by the State, in case the capacity for using them of the owner of
the protection title fails to meet the social demand, other organizations of
the State may request the owner of the protection title to transfer the rights
to use such inventions, industrial designs, or layout designs with the
following requirements:
a) Rights to
use inventions, industrial designs, or layout designs to be transferred are
non-exclusive and forbidden from transferring to another person;
b) The use
scope of inventions, industrial designs, or layout designs of the receiving
party shall not affect the capacity for using such inventions, industrial
designs, or layout designs to the fullest extent of the owner of the protection
title;
c) In case
the inventions, industrial designs, or layout designs are used for
non-commercial purposes, the price for transferring the rights that the
receiving party must pay the owner of the protection title shall be 50% of the
amount that a non-state receiving party must pay for the receipt of rights to
use such inventions, industrial designs, or layout designs with other
equivalent conditions.
2. The transfer of rights to use inventions, industrial
designs, or layout designs of the State to state organizations prescribed in
Clause 1 of this Article shall not affect the rights of the owner of the
protection title in the transfer of rights to use the mentioned subjects to
non-state organizations.
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Social
organizations and socio-vocational organizations operating in fields concerning
industrial property shall be facilitated to perform social consulting and
criticism functions on industrial property and intensified non-public social
services to adequately promote the support for the operations of state
authorities and holders of industrial property rights.
Article 70. Other measures to encourage creative activities
The State
encourages and supports technological creative activities by:
1. Sponsoring technical creative competitions.
2. Commending and disseminating experience, creative measures,
and advanced examples of creative labor.
3. Supporting the establishment and protection of industrial
property rights regarding the results of creative activities.
Part four
PROTECTION OF INDUSTRIAL
PROPERTY RIGHTS AND RIGHTS TO PLANT VARIETIES
Chapter I
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Section 1. GROUNDS TO DETERMINE ACTS, NATURE, AND LEVEL OF INFRINGEMENT
Article 71. Application of civil, administrative, and
criminal measures to protect industrial property rights and rights to plant
varieties
Acts of
infringement may, based on the nature and level, be handled by civil,
administrative, and criminal measures according to Part Five (Protection of
Industrial Property Rights) of the Law on Intellectual Property and the
following regulations:
1. Civil measures shall be applied to handle any act of
infringement at the request of the holder of industrial property rights or
rights to plant varieties or the organization or individual with damage caused
by the infringement, even if such an act has been or is being handled by
administrative or criminal measures.
The
procedure for requesting the application of civil measures and the competence
and procedure for applying civil measures shall comply with civil procedure
laws.
2. Administrative measures shall be applied to handle any act
of infringement that falls into one of the cases prescribed in Article 211 of
the Law on Intellectual Property at the request of the holder of industrial
property rights or rights to plant varieties, the organization or individual
with damage caused by such acts, or a competent authority.
Forms,
fines, competence, and procedure for fining acts of infringement and measures
to remedy the consequences in compliance with the Law on Intellectual Property
and administrative handling laws concerning industrial property rights and
rights to plant varieties.
3. Criminal measures shall be applied to handle any act of
infringement if such an act has sufficient elements to constitute a crime
according to the Criminal Code.
The
competence and procedure for applying criminal measures shall comply with
criminal procedure laws.
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Acts are
considered infringements on industrial property rights and rights to plant
varieties according to Articles 126, 127, 129, and 188 of the Law on
Intellectual Property when the following grounds are found:
1. The subject in consideration falls into the scope of
subjects under protection;
2. There are elements of infringement in the subject in
consideration;
3. The person who commits the act that is in consideration is
not the holder of industrial property rights or rights to plant varieties and
is not a person permitted by laws or a competent authority according to Clause
2 and Clause 3 Article 125, Article 133, Clause 3 Article 133a, Article 134,
Clause 2 Article 137, Article 145, Article 190, and Article 195 of the Law on
Intellectual Property;
4. The act in consideration takes place in Vietnam. The act
will also be considered to take place in Vietnam if it occurs on the Internet
and is carried out on an information website under a Vietnamese domain name or
with the display language of Vietnamese or aims at consumers or information
users in Vietnam.
Article 73. Grounds to identify subjects of protection
1. The
identification of subjects of protection shall be performed by assessing
documents and evidence proving the arising grounds and establishment of rights
according to Article 6 of the Law on Intellectual Property.
2. Regarding
industrial property rights registered at competent authorities, the subjects of
protection shall be identified according to the certificates of registration
confirmation, protection titles, and documents enclosed with such certificates
of registration confirmation and protection titles.
3. Regarding
trade names, the subjects of protection shall be identified based on the use
progress, fields, and territories using such trade names.
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5. Regarding
famous marks, the subjects of protection shall be identified based on documents
and evidence that the marks are used widely to achieve their fame following the
criteria prescribed in Article 75 of the Law on Intellectual Property.
6. Regarding
geographical indications protected under international treaties, the subjects
of protection shall be identified according to international treaties or the
National Industrial Property Register.
7. Rights to
plant varieties shall be determined according to plant variety protection
titles issued by competent authorities.
Article 74. Elements of infringement on invention ownership
1. Elements
of infringement on rights to inventions may be in one of the following forms:
a) A product
or any part of the product is identical or similar to a product or any part of
the product under the scope of invention protection;
b) A
procedure is identical or similar to a procedure under the scope of invention
protection;
c) A product
or any part of the product is produced under a procedure identical or similar
to a procedure under the scope of invention protection.
2. The
ground to determine elements of infringement on rights to inventions is the
scope of invention protection determined according to the invention patents,
utility solution patents, or excerpts from the National Industrial Property
Register.
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1. Elements
of infringement on rights to layout designs may be in one of the following
forms:
a) A layout
design is created from an illegal copy of a protected layout design;
b) A
semiconductor integrated circuit is created illegally following a protected
layout design;
c) A product
or any part of the product with a semiconductor integrated circuit prescribed
in Point b of this Clause.
2. The
ground to determine elements of infringement on rights to layout designs is the
scope of protection of rights to layout designs determined according to
certificates of registration of semiconductor integrated circuit or excerpts
from the National Industrial Property Register.
Article 76. Elements of infringement on rights to industrial
designs
1. Elements
of infringement on rights to industrial designs refer to when a product or any
part for assembly into a complex product whose external appearance does not
differ significantly from the protected industrial design.
2. The
ground to determine elements of infringement on rights to industrial property
is the scope of protection of industrial designs determined according to the
industrial design patents, decisions on acceptance of the protection of
industrial designs internationally registered, or excerpts from the National
Industrial Property Register.
3. A product
or any part for assembly into a complex product whose appearance is considered
to not differ significantly from a protected industrial design if it falls into
one of the following cases:
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b) The
product or any part for assembly into the complex product is considered to have
an external appearance that is a combination of design features that forms a
whole that is a copy or essentially a copy of an industrial design of at least
one product in the protected set of products of another person.
Article 77. Elements of infringement on rights to marks
1. Elements
of infringement on rights to marks refer to signs attached to goods, goods
packaging, means of services, transaction documents, signs, advertising means,
and other means of businesses that are identical or similar to the point of
confusion over the protected marks.
2. The
ground to assess elements of infringement on rights to marks is the scope of
protection of marks, including mark samples and lists of goods and services
determined in the certificates of mark registration, confirmation certificates
of internationally registered marks protected in Vietnam, or excerpts from the
National Industrial Property Register or determined via the assessment of
evidence proving the famous marks according to Article 75 of the Law on
Intellectual Property.
3. In order
to determine if a suspicious sign is an element of infringement on rights to a
mark, it is necessary to compare such a sign to the related mark while
comparing the goods and services bearing that sign to the goods and services
under the protection scope. An element of infringement may only be confirmed
when the following requirements are met:
a) The
suspicious sign is identical or similar to the point of confusion over the mark
under the scope of protection. Specifically, a sign is considered identical to
a protected mark if it has the same structure and presentation or similar to
the point of confusion over a mark under the protection scope if there are
several components completely identical to or similar to the point that they
cannot be easily distinguished from each other in terms of structure,
pronunciation, transcription, meanings, presentation, or colors regarding a
visible sign and melody or tone regarding a sound sign and the use of the sign
can potentially cause confusion over the goods and services bearing the mark
for consumers;
b) Goods and
services that bear the suspicious sign are identical or similar to the goods
and services under the protection scope if they are identical or similar in
terms of nature or functions and uses and have the same consumption channel or
have connections with each other in terms of nature, functions, or
implementation methods.
4. Regarding
famous marks, suspicious signs are considered elements of infringement if:
a) The
suspicious signs meet the requirements prescribed in Point a Clause 3 of this
Article;
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Article 78. Elements of infringement on rights to
geographical indications
1. Elements
of infringement on rights to geographical indications displayed in the form of
signs attached to goods, goods packaging, means of services, transaction
documents, signs, advertising means, and other means of businesses that are
identical or similar to the point of confusion with the protected geographical
indications.
2. The
ground to assess elements of infringement on rights to geographical indications
is the scope of protection of geographical indications determined according to
certificates of registration of geographical indications, international
treaties that have contents of recognition and protection of geographical
indications, or excerpts from the National Industrial Property Register.
3. In order
to determine if a suspicious sign is an element of infringement on rights to a
protected geographical indication, it is necessary to compare such a sign to
the related geographical indication while comparing the product bearing that
sign to the product with the protected geographical indication based on the
following grounds:
a) The
suspicious sign is identical or similar to the point of confusion over the
protected geographical indication. Specifically, a sign is considered identical
to a protected geographical indication if it has the same wording structure,
including pronunciation and transcription of letters, meanings, or images and
symbols under the scope of protection of the geographical indication. A sign is
considered similar to the point of confusion over the protected geographical
indication if it is similar in terms of wording structure, including
pronunciation and transcription of letters, meanings, or images and symbols
under the scope of protection of the geographical indication and misleads consumers
that the product bearing the suspicious sign originates from a protected
geographical area;
b) The
product bearing the suspicious sign is identical or similar to the product
bearing the protected geographical indication in terms of nature, functions,
uses, and consumption channel;
c) Regarding
wines and brandies, aside from the regulations prescribed in Point a and Point
b of this Clause, signs that are identical with protected geographical
indications, even if they are presented in the form of definition,
transcription, or words indicating types, styles, forms, or equivalences used
for products not originating from geographical areas with protected
geographical indications are also considered elements of infringement on rights
to geographical indications.
Article 79. Elements of infringement on rights to trade names
1. Elements
of infringement on rights to trade names displayed in the form of commercial
indications attached to goods, goods packaging, means of services, transaction
documents, signs, advertising means, and other means of businesses that are
identical or similar to the point of confusion with the protected trade names.
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3. In order
to determine if a suspicious sign is an element of infringement on rights to a
trade name, it is necessary to compare such a sign to the protected trade name,
the subject of the business, the business facility, and the business operation
related to the suspicious sign, and the goods and services bearing such a sign
to the goods and services of the protected trade name based on the following
grounds:
a) The
suspicious sign is identical or similar to the point of confusion over the
protected trade name. Specifically, a sign is considered identical to a
protected trade name if they are identical in terms of wording structure,
including pronunciation and transcription of the trade name. A sign is
considered similar to a protected trade name if they are similar in terms of
structure, pronunciation, and transcription of the trade name, confusing the
consumers over the subject of business, business facility, and business
operation under the protected trade name;
b) Goods and
services that bear the suspicious sign are considered identical or similar to
goods and services bearing the protected trade name if they are identical or
similar in terms of nature or functions and uses and have the same consumption
channel, or have connections with each other in terms of nature, functions, or
implementation methods.
Article 80. Elements of infringement on rights to plant
varieties
1. Elements
of infringement on rights to plant varieties considered to constitute acts of
infringement are as follows:
a) Plant
propagation materials, intact seedlings, harvested products, or any material
that can potentially grow into the complete seedlings of protected plant
varieties;
b) Names of
plants or characters that are similar to the point of confusion over the
display on goods, goods packaging, means of services, transaction documents,
signs, advertising means, and other means of businesses or the names of the
protected plant varieties;
c)
Machinery, equipment, storage, preservation, transport vehicles, or other
equipment serving the processing and storage of seeds, plant propagation
materials, and harvested materials for making seeds of protected plant
varieties.
2. The
ground to determine elements of infringement on rights to plant varieties is
the scope of unexpired plant variety protection titles.
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1. The
nature of infringement prescribed in Clause 1 Article 199 of the Law on Intellectual
Property is determined based on the following grounds:
a)
Circumstances and motives for infringement: unintentional infringement,
intentional infringement, infringement due to being controlled or dependent,
first-time infringement, and repeated infringement;
b) Methods
of infringement: independent infringement, organized infringement,
self-perpetuated acts of infringement, and acts of bribing, deceiving, or
forcing others to commit acts of infringement.
2. The level
of infringement prescribed in Clause 1 Article 199 of the Law on Intellectual
Property is determined based on the following grounds:
a)
Territorial scope, time, volume, and scale of the infringement;
b) Impacts
and consequences of the infringement.
Section 2. DAMAGE IDENTIFICATION
Article 82. Principles of identifying damage to industrial
property rights and rights to plant varieties
1. Damage
caused by infringement on industrial property rights and rights to plant
varieties prescribed in Article 204 of the Law on Intellectual Property means
the actual physical and spiritual loss caused by acts of infringement directly
to the right holders.
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a) Physical
or spiritual benefits are real and belong to the aggrieved person;
b) The
aggrieved person can potentially gain the benefits prescribed in Point a of
this Clause;
c) There is
a reduction or loss of benefits for the aggrieved person after the occurrence
of the infringement compared to the potential gain of such benefits when the
infringement does not occur, and such infringement is the main source that
causes such reduction or loss.
3. The level
of damage shall be determined in conformity with the elements of infringement
on rights for subjects of industrial property rights and rights to plant
varieties. The determination of damage levels shall be based on evidence of the
damage provided by concerned parties, including the results of the request for
damage identification and table of damage with elaboration on grounds to
identify and calculate the damage.
Article 83. Loss of assets
1. Loss of
assets shall be determined based on the level of deterioration or loss of value
in money of the subject of industrial property rights or rights to plant
varieties under protection.
2. The value
in money of the subject of industrial property rights or rights to plant
varieties prescribed in Clause 1 of this Article shall be determined by one or
more of the following grounds:
a) Price for
the transfer of the ownership or price for the transfer of rights to use the
subject of industrial property rights or rights to plant varieties;
b) Value of
business capital contribution by industrial property rights or rights to plant
varieties;
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d) Value of
investment in the creation and development of the subject of industrial
property rights or rights to plant varieties, including costs of marketing,
research, advertising, labor, taxes, and other costs.
Article 84. Spiritual loss
Damage to
the honor, dignity, reputation, fame, and other spiritual losses caused to the
author of inventions, industrial designs, layout designs, and plant varieties
according to the Law on Intellectual Property refers to when the moral rights
of the mentioned subjects are infringed on, making the author receive damage to
the honor and dignity or decrease or loss of credibility (prestige),
reputation, and trust due to misunderstanding.
Article 85. Decrease of incomes and profits
1. Incomes
and profits prescribed in Point a Clause 1 Article 204 of the Law on
Intellectual Property include:
a) Incomes
and profits from direct use or utilization of subjects of industrial property
rights or rights to plant varieties;
b) Incomes
and profits from leases on subjects of industrial property rights or rights to
plant varieties;
c) Incomes
and profits from the transfer of rights to use subjects of industrial property
rights or rights to plant varieties.
2. Decrease
of incomes and benefits shall be determined following one or more of the
following grounds:
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b)
Comparison of the output, quantity of actual products, goods, and services
consumed or the supply of the mentioned subjects before and after the occurrence
of the violations;
c)
Comparison of the actual market sale prices of the products, goods, or services
before and after the occurrence of the violations.
Article 86. Loss of business opportunities
1. Business
opportunities prescribed in Point a Clause 1 Article 204 of the Law on
Intellectual Property include:
a) The
actual capacity for directly using or utilizing subjects of industrial property
rights or rights to plant varieties in business;
b) The
actual capacity for leasing subjects of industrial property rights or rights to
plant varieties;
c) The
actual capacity for transferring rights to use subjects of industrial property
rights or rights to plant varieties or transferring subjects of industrial
property rights or rights to plant varieties;
d) Loss of
other business opportunities caused by acts of direct infringement.
2. Loss of
business opportunities means the damage to the value in money of the income
that is supposed to belong to the aggrieved person when performing the
capacities prescribed in Clause 1 of this Clause if the related act of
infringement does not occur.
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Reasonable
expenses for damage prevention and remedy prescribed in Point a Clause 1
Article 204 of the Law on Intellectual Property include the expenses for
temporary detention, preservation, and storage of infringing goods, expenses
for the implementation of temporary emergency measures, reasonable expenses for
hiring lawyers, assessment services, and preventing and remedying acts of
infringement, and expenses for notification and rectification on mass media
concerning acts of infringement.
Chapter II
REQUESTS AND PROCESSING
OF REQUESTS OF ACTS OF INFRINGEMENT
Article 88. Exercising rights to self-protection
1.
Organizations and individuals shall exercise rights to self-protection
prescribed in Article 198 of the Law on Intellectual Property and this Article.
2.
Technological measures prescribed in Point a Clause 1 Article 198 of the Law on
Intellectual Property include:
a) Inclusion
of the information on instructions on arising grounds, protection titles,
owners, scope, protection period, and other information on industrial property
rights and rights to plant varieties to the products and means of services (hereinafter
referred to as "products" in this Article) for notifying that the
products are subjects of industrial property rights or rights to plant
varieties under protection and warning other people from conducting any act of
infringement;
b) Use of
technical equipment or measures to mark, recognize, distinguish, and protect
any product under protection.
3. Requests
for termination of acts of infringement prescribed in Point b Clause 1 Article
198 of the Law on Intellectual Property shall be carried out in the form of
written notifications sent to the perpetrators by the holders of industrial
property rights or rights to plant varieties. Written notifications shall
include the information on instructions on arising grounds, protection titles,
scope, and protection period and impose a reasonable time limit for the
perpetrators to terminate their acts of infringement.
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Article 89. Applications for handling of infringement
1. An
application for the handling of infringement shall include:
a)
Application preparation date;
b) Name and
address of the petitioner or name of the representative in case the request is
performed via the representative;
c) Name of
the authority receiving the application;
d) Name and
address of the perpetrator; name and address of the suspected perpetrator in
case of requesting for suspension of customs procedures for imports and exports
suspected to be infringed on;
dd) Name and
address of the organization or individual with related rights and benefits (if
any);
e) Name and
address of the witness (if any);
g)
Summarized information on the infringed industrial property rights or rights to
plant varieties: type of rights, grounds of arising rights, and summary of the
subject of the rights;
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i) Content
of the request for the application of violation handling measures;
k) List of
documents and evidence enclosed with the application;
l) Signature
of the applicant and seal (if any).
2. The
application for the infringement handling shall contain documents and evidence
backing the request. The mentioned documents and evidence shall comply with
Article 90 of this Decree.
Article 90. Documents and evidence enclosed with applications
for infringement handling
1. The
petitioner shall enclose the following documents and evidence with the
application for infringement handling to back his/her request:
a) Evidence
of right holder if the petitioner is the owner or the person who receives the
transfer of or inherits industrial property rights or rights to plant
varieties;
b) Evidence
of occurred infringement or evidence to suspect that imports or exports
infringe on industrial property rights or rights to plant varieties regarding
an application for temporary suspension of customs procedures;
c) Other
documents and evidence backing the petitioner’s request.
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Article 91. Evidence of right holders
1. Regarding
an invention, industrial design, layout design, mark, or plant variety, the
evidence of the right holder is one of the following documents:
a) Copy of
the invention patent, utility solution patent, industrial design patent,
certificate of registration of semiconductor integrated circuit, certificate of
mark registration, or plant variety protection title enclosed with the original
for comparison, excluding the cases of copies certified under regulations;
b) Excerpt
of the National Industrial Property Register or excerpt of the National
Register of Protected Plant Varieties issued by the authority competent to
register the concerned subjects.
2. Regarding
a mark internationally registered under the Madrid Agreement and Madrid
Protocol indicating Vietnam, the evidence of the right holder is the
confirmation certificate of an internationally registered mark protected in
Vietnam issued by the industrial property right authority or its certified copy
or excerpt of the National Industrial Property Register (the part for
Internationally Registered Marks).
3. Regarding
an industrial design internationally registered under the Hague Agreement
indicating Vietnam, the evidence of the right holder is the copy of the
decision to accept the protection of the industrial design internationally
registered issued by the industrial property right authority enclosed with the
original for comparison or its certified copy or excerpt of the National Industrial
Property Register (the part for Internationally Registered Industrial Designs).
4. Regarding
a geographical indication, the evidence of the right holder is one of the
following documents:
a)
Certificate of registration of the geographical indication or excerpt of the
National Industrial Property Register;
b) List of
organizations and individuals using the geographical indication according to
Point c Clause 1 Article 38 of this Decree or other documents proving the right
holder under the law of the country of origin in case of foreign geographical
indication protected in Vietnam.
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a) Regarding
a business secret: descriptions of content, storage forms, protection methods,
and measures to achieve the business secret;
b) Regarding
a trade name: documents proving the legal use of the trade name, business
field, and business location using the trade name, and the process of using the
trade name;
c) Regarding
a famous mark: documents specifying the criteria for assessment of the famous
mark under Article 75 of the Law on Intellectual Property and presentation of
the use process that makes the mark famous;
d) Regarding
a geographical indication protected under an international treaty: documents
and information in the international treaty containing the content of
recognition and protection of the geographical indication or excerpt of the
National Industrial Property Register;
dd)
Regarding a plant variety: unexpired plant variety protection title, decision
on issuance or re-issuance of the plant variety protection title, or excerpt of
the National Register of Protected Plant Varieties and evidence collected from
sources prescribed in Article 94 of the Civil Procedure Code.
6. If the
petitioner for infringement handling is the person who receives the transfer of
the rights to the subject of industrial property rights or rights to plant
varieties, transfers the rights to use the subject of industrial property
rights or rights to plant varieties, or inherits the subject of industrial
property rights or rights to plant varieties, aside from the documents
prescribed in Clauses 1, 2, and 3 of this Article, it is necessary to present
the original or legal copy of the contract of the transfer of rights to the
subject of industrial property rights or rights to plant varieties, contract of
the use of the subject of industrial property rights or rights to plant
varieties, or document confirming the rights to inherit the subject of
industrial property rights or rights to plant varieties. In case the transfer
has been recorded in the protection title, the certificate of contract
registration of the transfer of rights to the subject of industrial property
rights or rights to plant varieties, or certificate of contract registration of
the use of the subject of industrial property rights or rights to plant
varieties, the mentioned documents are also considered evidence of the status
of the right holder.
Article 92. Evidence of infringement
1. The
following documents and items shall be considered evidence of infringement:
a) Original
or legal copy of the related description, sample, or item specifying the
protected subject;
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c) Explanation
or comparison between the product in consideration with the protected subject;
d) Minutes,
testimonies, and other documents proving the infringement.
2. Documents
and items prescribed in Clause 1 of this Article shall be made into a list with
a confirmation signature of the petitioner for infringement handling.
Article 93. Responsibilities of petitioners for infringement
handling
Petitioners
for infringement handling shall ensure and take responsibility for the honesty
of their provision of information, documents, and evidence.
Article 94. Applying and settling applications for
infringement handling
1. An
application for infringement handling shall be submitted to any of the
infringement handling authorities prescribed in Article 200 of the Law on
Intellectual Property.
2. After
receiving the application for infringement handling, if the request is within
the jurisdiction of another authority, the receiving authority shall instruct
the applicant to submit the application to the competent authority or transfer
it to the competent authority for settlement within 10 days from the date of
receiving the application.
3. If the
application for infringement handling fails to ensure a sufficient number of
necessary documents, evidence, and items, the infringement handling authority
shall request the applicant to provide supplements and impose a reasonable time
limit that does not exceed thirty days for the applicant to supplement the
necessary documents and evidence.
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a) The
applicant fails to satisfy the request of the infringement handling authority
regarding the supplement to related documents, evidence, and items after the
imposed time limit prescribed in Clause 3 of this Article;
b) The
prescriptive period for infringement handling expires as prescribed by laws;
c)
Verification results of the infringement handling authority deny the
infringement described in the application for infringement handling;
d) A
competent authority issues a document on insufficient grounds to handle the
infringement.
5. In case
of a dispute over or complaint about the subject of rights, protection
capacity, or protection scope of industrial property rights or rights to plant
varieties, the authority that receives the application for infringement
handling shall instruct the applicant to perform the procedure for requesting
the settlement of the dispute or complaint at a competent authority within 10
days from the date the dispute arises.
Chapter III
HANDLING OF GOODS
INFRINGING ON INDUSTRIAL PROPERTY RIGHTS AND RIGHTS TO PLANT VARIETIES
Article 95. Evaluating infringing goods
1. Regulations
on infringing goods:
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b) In case
the element of infringement cannot be separated into a part of a marketable
independent product according to Point a of this Clause, the infringing goods
shall be the whole product that contains such an element of infringement.
2. Values of
infringing goods shall be determined by the infringement handling authority at
the time the infringement occurs based on the following orders of priority:
a) Listed
prices of infringing goods;
b) Actual
sale prices of infringing goods;
c) Aggregate
costs of infringing goods, if not yet circulated;
d) Purchase
prices of infringing goods.
3. Values of
infringing goods are determined by parts of the infringing product prescribed
in Point a Clause 1 of this Article or by the total value of the infringing
product according to Point b Clause 1 of this Article.
4. In case
the application of the grounds prescribed in Clause 2 of this Article is not
viable or there is a disagreement between the infringement handling authority
and the equivalent financial authority on evaluating the infringing goods, the
pricing shall be decided by the council for infringing goods evaluation.
The
establishment, composition, and working principle of the council for infringing
goods evaluation shall comply with civil and administrative violation handling
laws.
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1. Regarding
counterfeit goods in terms of marks, geographical indications, and ingredients,
materials, and equipment used for the production and trading of such goods, the
infringement handling authority may:
a)
Distribute or put them into use for non-commercial purposes according to
Article 97 of this Decree;
b) Destroy
them according to Article 98 of this Decree;
c) Force the
goods owner, carriers, or hoarders to eliminate elements of infringement and
bring the goods out of the territory of the Socialist Republic of Vietnam
regarding goods in transit that are counterfeit in terms of marks, re-export
the goods regarding imported goods that are counterfeit in terms of marks and
imported ingredients, materials, and equipment used for the production and
trading of counterfeit goods in terms of marks. In case of failure to eliminate
elements of infringement from goods, ingredients, materials, and equipment used
for the production and trading of the mentioned goods, measures prescribed in
Clause 4 of this Article shall be appropriately applied.
Regarding
imported goods and imported ingredients, materials, and equipment used for the
production and trading of counterfeit goods in terms of geographical indications,
depending on each specific case, the infringement handling authority shall
force the elimination of elements of infringement and apply appropriate
measures prescribed in Clause 4 of this Article.
2. Regarding
goods infringing on industrial property rights or rights to plant varieties
that are not counterfeit foods in terms of marks, geographical indications, and
ingredients, materials, and equipment used for the production and trading of
such goods, the infringement handling authority shall force the goods owner,
carrier, or hoarder to eliminate elements of infringement from the goods and
apply appropriate measures prescribed in Clause 4 of this Article.
Regarding
imports that are goods infringing on industrial property rights or rights to
plant varieties that are not counterfeit foods in terms of marks, geographical
indications, and ingredients, materials, and equipment used for the production
and trading of such goods, the infringement handling authority shall apply
appropriate measures prescribed in Point c Clause 1 of this Article.
3.
Ingredients, materials, and equipment that have a sole function to create or
commercially utilize counterfeit goods in terms of marks, geographical
indications, and goods infringing on industrial property rights or rights to
plant varieties or are solely used for the mentioned purposes shall be
considered ingredients, materials, and equipment used for the production and
trading of counterfeit goods in terms of marks and geographical indications and
goods infringing on industrial property rights or rights to plant varieties.
4. Depending
on each specific case, the infringement handling authority shall decide to
apply the measures prescribed in Point a and Point b Clause 1 of this Article
or force organizations or individuals producing infringing goods to recall such
goods that have been put into their distribution channel upon the request of
right holders to apply the measures prescribed in Point a and Point b Clause 1
of this Article or other necessary measures. While deciding on the infringement
handling, the infringement handling authority may consider requests from
concerned parties.
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1. The
forced distribution or use for non-commercial purposes for counterfeit goods in
terms of marks and geographical indications and goods infringing on industrial
property rights or rights to plant varieties shall meet the following
requirements:
a) Goods
have use values that cannot harm human health, animals, plants, and the
environment and are not cultural products with toxic content;
b) Elements
of infringement have been eliminated from the goods;
c) The
distribution or use is not aimed toward profit and does not unreasonably affect
the normal utilization of rights of holders of industrial property rights and
rights to plant varieties, prioritizing humanitarian, charitable, or social
benefit purposes;
d) Persons
receiving the distribution or taking charge of the use are not the potential
customers of the holders of industrial property rights or rights to plant
varieties.
2. The
regulations prescribed in Clause 1 of this Article shall also apply to
ingredients, materials, and equipment used for the production and trading of
counterfeit goods in terms of marks and geographical indications and goods
infringing on industrial property rights and rights to plant varieties.
Article 98. Forcing destruction
Measures to
force the destruction of counterfeit goods in terms of marks and geographical
indications, goods infringing on industrial property rights and rights to plant
varieties, and ingredients, materials, and equipment used for the production
and trading of such goods shall be applied in case of ineligibility for
applying the measure to force the distribution or use for non-commercial
purposes prescribed in Article 97 of this Decree.
Chapter IV
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Article 99. Rights to request control of exports and imports
concerning industrial property rights and rights to plant varieties
Holders of
industrial property rights and rights to plant varieties may apply for
inspection and supervision in person or via legal representatives to detect
imports and exports that have signs of infringement on industrial property
rights or rights to plant varieties or apply for temporary suspension of
customs procedures for imports and exports suspected to infringe on industrial
property rights or rights to plant varieties.
Article
100. Competence to receive applications
Customs
authorities are competent to receive applications for inspection or supervision
or applications for suspension of customs procedures according to Clause 1
Article 75 of the Customs Law.
Article
101. Procedure for processing applications
1. Within 20
days after receiving the valid set of applications for inspection or
supervision of imports or exports or within 2 working days after receiving the
set of applications for suspension of customs procedures, the customs authority
shall consider issuing a notification of application acceptance if the
applicant has fulfilled the obligations prescribed in Points a, b, c Clause 1
and Clause 2 Article 217 of the Law on Intellectual Property. In case of
refusal, the customs authority shall provide written answers and explanations
for the applicant.
2. After
accepting the application for inspection or supervision of imports or exports,
the General Department of Vietnam Customs shall send notifications of the
acceptance to the Customs Departments of provinces, cities, and the designated
authority of the General Department of Vietnam Customs to implement the
inspection or supervision. The Customs Departments of provinces, cities, and
the designated authority of the General Department of Vietnam Customs shall,
based on the notifications of the General Department of Vietnam Customs, look
up data on the system to organize the implementation within the areas under
their management.
3.
Sub-Departments of Customs shall conduct the inspection or supervision to
detect goods with signs of infringement or decide to suspend the customs
procedures based on the request for suspension of customs procedures.
Article
102. Procedure for processing goods suspected of infringement
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2. The
customs authority shall continue to perform customs procedures for the shipment
subject to suspension according to Clause 3 Article 218 of the Law on
Intellectual Property in the following cases:
a) The
decision to suspend the customs procedures is suspended or revoked according to
a decision on the settlement of complaint or denunciation;
b) The
applicant for the suspension of customs procedures withdraws the application.
Article
103. Competence and procedure for proactively suspending customs procedures
1. During
the inspection, supervision, and control, if there are clear grounds to suspect
imports or exports are counterfeit goods in terms of marks or geographical
indications, the Sub-Department of Customs shall proactively issue a decision
to suspend the customs procedures for such goods.
2. The
Sub-Department of Customs shall immediately send a notification of the
suspension to the holder of rights to marks or geographical indications if
there is contact information and the importer or the exporter.
3. The time
of suspension of customs procedures is 10 days from the date the Sub-Department
of Customs notifies the right holder according to Clause 2 of this Article.
4. During
the suspension of customs procedures, the Sub-Department of Customs that
decides on the suspension shall:
a) Request
the importer or exporter or the holder of rights to the marks or geographical
indications (in case of having contact information) to provide documents
related to the goods (catalogs, assessment conclusions, foreign documents,
conclusions of the settlement of similar cases, etc.);
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c) Cooperate
and consult with industrial property authorities upon disputes or denunciations
of the right holder, protection capacity, protection scope of rights to marks
or geographical indications, and competence to handle violations;
d) Submit
reports to the Customs Department of the province or city and the General
Department of Vietnam Customs for directives on the timely settlement of
complicated cases.
5. After the
suspension period of customs procedures:
a) In case
the customs authority determines that the goods subject to the suspension are
counterfeit goods in terms of marks or geographical indications and the
violation is within its jurisdiction, the customs authority shall impose an
administrative fine for the act of infringing on rights to marks or
geographical indications and counterfeit goods in terms of marks or geographical
indications as prescribed by laws. In case it is determined that the violation
is not within the jurisdiction of the customs authority, it shall hand over the
case to other intellectual property protection right authorities for handling;
b) If the
applicant files a civil lawsuit, the customs authority shall comply with the
suggestions of the court;
c) In case
of receiving a document from the industrial property right authority notifying
the dispute or complaint about the right holder, protection capacity, or scope
of protection of rights to marks or geographical indications, the customs
authority shall continue to carry out the customs procedures for the shipment,
except for the case where the customs authority already has a decision to
accept the case under procedures for administrative violation handling;
d) If it is
determined that the violation has criminal signs according to the Criminal
Code, the customs authority shall hand over the case to a competent authority
for investigation and prosecution as prescribed by laws;
dd) If the
customs authority decides that the goods subject to suspension are not
counterfeit goods in terms of marks or geographical indications, it shall
continue to carry out the customs procedures for the shipment and send
notifications to concerned parties.
6. In case
the proactive suspension of customs procedures is improper, causing damage to
the owner of the goods, the Sub-Department of Customs shall compensate for the
damage and pay every arising cost as per regulation.
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Procedures
for controlling imports and exports concerning industrial property rights and
rights to plant varieties shall comply with this Decree and relevant customs
laws.
Chapter V
ASSESSMENT OF INDUSTRIAL PROPERTY RIGHTS
AND RIGHTS TO PLANT VARIETIES
Section
1. ASSESSORS AND ASSESSMENT ORGANIZATIONS OF INDUSTRIAL PROPERTY RIGHTS AND
RIGHTS TO PLANT VARIETIES
Article
105. Forms of assessment activities of assessors of industrial property rights
and rights to plant varieties
1. An
assessor of industrial property rights or rights to plant varieties may operate
under an assessment organization of industrial property rights or rights to
plant varieties or conduct independent operations.
2. Forms of
activities of assessors shall be recorded to the list of assessors of
industrial property rights and list of assessors of rights to plant varieties
prescribed in Article 109 and Article 112 of this Decree.
3. If
assessors operate on behalf of assessment organizations of industrial property
rights or rights to plant varieties, the information on such assessors shall be
recorded to the list of assessors under organizations following the procedure
for issuing certificates of assessment organizations.
Article
106. Rights and obligations of assessors of industrial property rights and
rights to plant varieties
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a) Refuse
the assessment in case the relevant documents are insufficient, hold no value
to draw an assessment conclusion, or are not subject to the assessment
specialty prescribed in the assessor's card;
b) Refuse to
receive the assessment sample in case there is a risk of harm to health or the
sample is too bulky to be stored;
c) Use the
assessment result, the professional conclusion, or suggestions from experts for
the assessment;
d) Request
agencies, organizations, or individuals to provide information and documents
concerning the subject of assessment for the assessment unless otherwise
provided by law (regarding assessors of industrial property rights or rights to
plant varieties operating independently);
dd) Exercise
other rights as prescribed by laws.
2. Assessors
of industrial property rights and rights to plant varieties shall:
a) Operate
in compliance with the assessment specialty prescribed in the assessor’s card;
b) Perform
the assessment in compliance with Clause 4 Article 201 of the Law on
Intellectual Property;
c) Prepare
assessment documents and explain the assessment conclusion upon request from
the petitioner for the assessment, organizations or individuals with related
rights and benefits, or competent authorities;
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dd)
Independently draw the assessment conclusion and take responsibility for such a
conclusion. In case of intentionally drawing a false conclusion that damages
the concerned organizations or individuals, compensate for the damage;
e) Refuse
the assessment in case of having rights or benefits related to the subject of
assessment, the assessment case, or other reasons affecting the objectivity of
the assessment conclusion or in cases where the refusal is prescribed by other
laws;
g) Ensure
the confidentiality of information and documents at the request of authorities,
organizations, or individuals requesting the assessment and compensate for
damage in case of disclosure of confidential information causing damage to the
concerned authorities, organizations, or individuals;
h) Take
legal liability for acts of taking advantage of the role of assessor and the
assessment for profiteering or intentionally drawing false assessment
conclusions;
i) Inform
and report on the assessment activities every 6 months and every year in
writing to state management authorities of industrial property rights and
rights to plant varieties;
k) Fulfill
other obligations as prescribed by laws.
1.
Assessment organizations of industrial property rights and rights to plant
varieties may:
a) Hire assessors
of industrial property rights or rights to plant varieties to assess by cases;
b) Request
agencies, organizations, or individuals to provide information and documents
concerning the subject of assessment for the assessment unless otherwise provided
by law;
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2.
Assessment organizations of industrial property rights and rights to plant
varieties shall:
a) Operate
in compliance with the assessment field prescribed in the certificate of
assessment organization;
b) Perform
the assessment in compliance with Clause 4 Article 201 of the Law on
Intellectual Property;
c) Preserve
and store documents and samples concerning the assessment case as prescribed by
laws;
d) Ensure
the confidentiality of information and documents at the request of authorities,
organizations, or individuals requesting the assessment and compensate for
damage in case of disclosure of confidential information causing damage to the
concerned authorities, organizations, or individuals;
dd) Refuse
the assessment in cases it is prescribed by other laws;
e) Take
legal liability for acts of taking advantage of the role of assessor and the
assessment for profiteering or intentionally drawing false assessment
conclusions;
g) Inform
and report on the assessment activities every 06 months and every year in
writing to state management authorities of industrial property rights and
rights to plant varieties;
h) Fulfill
other obligations as prescribed by laws.
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2. The
organization of the professional inspection of industrial property assessment
shall be performed as follows:
a)
Industrial property right authority is the authority competent to organize the
professional inspection of industrial property assessment;
b) The
industrial property right authority shall disclose notifications on its web
portal, specifying the conditions for participating in the inspection,
application submission procedures, inspection content, and expected time and
location of the inspection;
c) The
inspection shall be organized within 3 months from the date when at least 5
participants have their applications approved according to Clause 4 of this
Article;
d) The results
of the inspection shall be notified to the participants by the industrial
property right authority. Participants may request the industrial property
right authority to re-examine the results of the inspection;
dd) The
results of the inspection shall have a validity of 5 years for requesting the
industrial property right authority to issue industrial property assessor’s
cards.
3. The
council for professional inspection of industrial property assessment
established by the industrial property right authority shall organize the
professional inspection of industrial property assessment according to the
regulation on professional inspection of industrial property assessment issued
by the industrial property right authority.
4.
Registration for participation in the professional inspection of industrial
property assessment shall be performed as follows:
a) Individuals meeting the following requirements shall be eligible for
registering for participation in the inspection according to this Article:
a1) Being
Vietnamese citizens with sufficient legal capacity;
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a3) Having
good moral qualities;
a4) Having
at least bachelor's degrees with specialties suitable for the field registered
for inspection;
a5) Having
professionally worked in the field registered for inspection for at least 5
years.
b) An
application for participation in the professional inspection of industrial
property assessment submitted to the industrial property right authority shall
include a set of the following documents:
b1)
Statement on registration for participation in the professional inspection of
industrial property assessment, following Form No. 01 Appendix VI of this
Decree;
b2) Copies
of the bachelor’s degree or post-university degree (the original shall be
presented for comparison, excluding cases of certified copies);
b3) Copies of the recruitment decision, labor contract, or other documents
proving the actual professional operations (the original shall be presented for
comparison, excluding cases of certified copies);
b4) 2 photos
sized 3 x 4 (cm);
b5) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority).
c) Within 20
days after receiving the application, the industrial property right authority
shall process the application according to the following regulations:
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c2) If the
application has deficiencies, the industrial property right authority shall
issue a notification of the intended refusal of the acceptance of the
application, specifying the reasons and imposing a 1-month time limit from the
notification date for the applicant to amend the deficiencies or object to the
refusal. After the imposed time limit, if the applicant fails to amend
deficiencies or provides inadequate amendments, does not have any objection or
provides inadequate objections, the industrial property right authority shall
issue a decision to refuse the acceptance of the application, specifying the
reasons.
1. The
industrial property right authority is competent to issue, re-issue, and revoke
industrial property assessor's cards and establish and disclose the list of
industrial property assessors according to the procedures prescribed in Clauses
2, 3, 4, and 5 of this Article.
2. The
issuance of industrial property assessor’s cards shall be performed as follows:
a) The
industrial property authority shall issue industrial property assessor’s cards
to persons meeting the requirements prescribed in Clause 3 Article 201 of the
Law on Intellectual Property if such persons apply for the issuance and pay the
prescribed fees. Requirements for eligibility for issuance of industrial
property assessor’s cards prescribed in Clause 3 Article 201 of the Law on
Intellectual Property shall be understood as follows:
a1)
“Residing in Vietnam” shall be understood as having a permanent residence in
Vietnam according to residence laws;
a2) “Having
good moral qualities” shall be understood as not being subject to any
administrative fine for violations of industrial property laws, not committing
acts of violating professional ethics, not being subject to criminal
prosecution, or having unspent convictions;
a3) “Having
at least bachelor's degrees with specialties suitable for the field requested
for issuance of assessor’s cards” shall be understood as having bachelor’s
degrees or post-university degrees in natural science or technical science
regarding the specialty of assessment of inventions and layout designs; having
any other bachelor’s degrees or post-university degrees regarding other
assessment specialties;
a4) “Having
professionally worked in the field requested for issuance of assessor’s cards
for at least 5 years” shall be understood as having directly settled disputes
or denunciations or engaged in the inspection, examination, legislation, or
legal consulting regarding industrial property, or scientific research with the
title of researcher, industrial property teaching with the title of lecturer
for at least 5 years or having directly engaged in the explanation and guidance
on laws, developed regulations, directly prepared or approved appraisal results
of contents of applications for invention registration (including utility
solutions) or applications for registration of industrial designs, marks, or
geographical indications (including the names and origins of goods) at national
or international industrial property authority for at least 5 years, or having
engaged in the practice of industrial property representative services for at
least 5 years.
b) An
application for the issuance of an industrial property assessor’s card
submitted to the industrial property right authority shall include a set of the
following documents:
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b2) Copies
of citizen ID (the original shall be presented for comparison, excluding cases
of certified copies), except for the case where the statement on request for
the issuance of the industrial property assessor's card already has information
on the citizen ID number;
b3) 2 photos
sized 3 x 4 (cm);
b4) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority).
c) Within 1
month after receiving the application, the industrial property right authority
shall assess the application according to the following regulations:
c1) If the
application is valid, the industrial property right authority shall issue a
decision on the issuance of the assessor's card, specifying the name, date of
birth, permanent address, citizen ID number, assessor’s card number, and
assessment specialty of the person with the issued card; record the issuance to
the National Industrial Property Assessment Register and disclose the
information on the Industrial Property Official Gazette and its web portal
within 2 months from the decision issuance date;
c2) If the
application is invalid, the industrial property right authority shall issue a
notification of the intended refusal of the acceptance of the application,
specifying the reasons and imposing a 1-month time limit from the notification
date for the applicant to amend the deficiencies or object to the refusal.
After the imposed time limit, if the applicant fails to amend deficiencies or
provides inadequate amendments, does not have any objection or provides
inadequate objections, the industrial property right authority shall issue a
decision to refuse the issuance of the assessor's card, specifying the reasons.
c3) The
assessor’s card shall be made following Form No. 04 Appendix VI of this Decree.
3. The
re-issuance of industrial property assessor’s cards shall be performed as
follows:
a) In the
following cases, the industrial property right authority shall decide to re-issue
industrial property assessor's cards if the assessors submit requests and pay
the fees and charges according to regulations:
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a2) The
information in the industrial property assessor’s card prescribed in Point c1
Clause 2 of this Article has been changed.
b) The
assessor shall request the industrial property right authority to re-issue the
industrial property assessor’s card for the recording of changes prescribed in
Point a2 of this Clause;
c) An
application for the re-issuance of an industrial property assessor’s card
submitted to the industrial property right authority shall include a set of the
following documents:
c1)
Statement on request for the re-issuance of the assessor's card, following Form
No. 03 Appendix VI of this Decree;
c2) Copies
of citizen ID (the original shall be presented for comparison, excluding cases
of certified copies), except for the case where the statement on request for
the re-issuance of the assessor’s card already has information on the citizen
ID number, regarding the case prescribed in Point a2 of this Clause;
c3) 2 photos
sized 3 x 4 (cm);
c4) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the industrial property right
authority).
d) The
processing of the application for the re-issuance of the industrial property
assessor’s card shall be performed as follows:
d1) Within
20 days from the receipt date of the application for the re-issuance of the
industrial property assessor’s card, the industrial property right authority
shall assess the application following the procedure similar to the procedure for
issuing the industrial property assessor’s card prescribed in Point c Clause 2
of this Article.
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4. The revocation of an industrial property assessor’s card
shall be performed as follows:
a) An
industrial property assessor’s card shall be revoked in the following cases:
a1) There is
evidence confirming that the assessor's card has been issued contrary to laws;
a2) The
person with the issued assessor’s card no longer meets the requirements
prescribed in Clause 3 Article 201 of the Law on Intellectual Property;
a3) The
person with the issued assessor's card no longer engages in the assessment
operations;
a4) The
person with the issued assessor’s card is subject to the disciplinary revocation
of the assessor’s card under a decision of the competent authority.
b) The
industrial property right authority proactively or upon a request of an
organization or individual revokes the assessor’s card if there are grounds
confirming that the person with the issued card falls into one of the cases
prescribed in Point a of this Clause;
c) An
application for the revocation of an industrial property assessor’s card
submitted to the industrial property right authority shall include a set of the
following documents:
a1) Application for the revocation of the industrial
property assessor’s card;
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d) The
procedure for revoking the industrial property assessor’s card shall be
performed as follows:
d1) If an organization or individual
requests the revocation of the industrial property assessor’s card according to
Point c of this Clause, within 1 month from the date of receipt of the request,
the industrial property right authority shall provide a written notification of
such a request for the person with the issued assessor's card and impose a
1-month time limit from the notification date for him/her to provide any
suggestion. The industrial property right authority
shall, based on the suggestions of concerned parties, issue a decision to
revoke the industrial property assessor’s card or refuse the revocation of the
industrial property assessor’s card and send it to the concerned parties;
d2) If there are grounds confirming that the
person with the issued industrial property assessor's card no longer satisfies
the requirements prescribed in Clause 2 Article 201 of the Law on Intellectual
Property, the industrial property right authority shall issue a written
notification of the intended revocation of the industrial property assessor’s
card to the person with the issued industrial property assessor's card and
impose a 1-month time limit from the notification date for him/her to provide
any suggestion. The industrial property right authority
shall, based on the suggestions of the person with the issued industrial
property assessor’s card, issue a decision to revoke the industrial property
assessor’s card to him/her or provide a notification of not revoking the
industrial property assessor’s card for him/her;
d3) In case of a decision to revoke the
industrial property assessor’s card of a competent authority, within 1 month
from the receipt date of the mentioned decision, the industrial property right
authority shall issue a decision to revoke the industrial property assessor's
card;
d4) The industrial property right authority shall record the decision on
the revocation of the industrial property assessor's card to the National
Industrial Property Assessment Register and disclose it on the Industrial
Property Official Gazette and its web portal within 2 months from the decision
issuance date.
5. The
preparation and disclosure of the list of industrial property assessors shall
be performed as follows:
a) The
industrial property right authority shall prepare the list of industrial
property assessors, including the information recorded according to decisions
on issuance, re-issuance, and revocation of industrial property assessor's card
and disclose or update it on its web portal annually;
b) The
industrial property right authority shall notify the local industrial property
right authority of information on changes concerning assessor's cards of
assessors working for the corresponding local industrial property assessment
organizations to serve the issuance, re-issuance, or revocation of certificates
of local assessment organizations within 2 months from the decision issuance
date.
1.
Competence in issuing, re-issuing, and revoking certificates of industrial
property assessment organizations is as follows:
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b) Local
industrial property right authorities are competent to issue, re-issue, and
revoke certificates of industrial property assessment organizations for
organizations prescribed in Clause 2 Article 201 of the Law on Intellectual
Property registering for business and operations at local competent authorities
according to Clauses 2, 3, 4, and 5 of this Article.
2. The
issuance of certificates of industrial property assessment organizations shall
be performed as follows:
a) Local
industrial property right authorities and industrial property right authorities
shall issue certificates of industrial property assessment organizations to
organizations meeting the requirements prescribed in Clause 2 Article 201 of
the Law on Intellectual Property if such organizations apply for the issuance
and pay the prescribed fees.
b) An
application for the issuance of a certificate of industrial property assessment
organization submitted to the industrial property right authority or the local
industrial property right authority shall include a set of the following
documents:
b1)
Statement on the request for the issuance of the certificate of industrial property
assessment organization following Form No. 05 Appendix VI of this Decree;
b2) Copies
of the recruitment decision or labor contract between the organization and its
industrial property assessor (the original shall be presented for comparison,
excluding cases of certified copies);
b3) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the authority competent to
settle this procedure).
c) Within 1
month after receiving the application, the industrial property right authority
or the local industrial property right authority shall assess the application
according to the following regulations:
c1) If the
application is valid, the industrial property right authority or the local
industrial property right authority shall issue a decision on the issuance of
the certificate of assessment organization, specifying the full name, business
name, address, and code of the organization and its assessment specialty
corresponding to the assessment specialty of its assessors and the list of
industrial property assessors that are its members; record the issuance to the
National Industrial Property Assessment Register and disclose the information
on the Industrial Property Official Gazette and its web portal within 2 months
from the decision issuance date;
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c3) The
certificate of industrial property assessment organization shall be made
following Form No. 07 Appendix VI of this Decree.
3. The
re-issuance of certificates of industrial property assessment organizations
shall be performed as follows:
a) In the
following cases, the industrial property right authority or the local
industrial property right authority shall decide to re-issue certificates of
industrial property assessment organizations if the organizations submit
requests and pay the fees and charges according to regulations:
a1) The
certificate of industrial property assessment organization is lost, defective,
or damaged (torn, dirty, faded, etc.) to the point of being unusable;
a2) The
information in the certificate of industrial property assessment organization
prescribed in Point c1 Clause 2 of this Article has been changed.
b) The
industrial property assessment organization shall perform the procedure for
requesting the authority that has issued the certificate of industrial property
assessment organization to re-issue the certificate for the recording of
changes prescribed in Point c1 Clause 2 of this Article;
c) An application for the re-issuance of a certificate of
industrial property assessment organization submitted to the industrial
property right authority or the local industrial property right authority shall
include a set of the following documents:
c1) Statement on the request for the re-issuance of the
certificate of industrial property assessment organization following Form No.
06 Appendix VI of this Decree;
c2) Copies of the amended certificate of business
registration or amended certificate of operation registration of the industrial
property assessment organization in the case of changing the information on the
organization (the original shall be presented for comparison, excluding cases
of certified copies), excluding the case where the enterprise identification
number is declared in the statement on request for the re-issuance of the
certificate of industrial property assessment organization;
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c4) Copies
of payment invoices of fees and charges (in cases of paying fees and charges
via postal services or directly to the account of the authority competent to
settle this procedure).
d) The
processing of the application for the re-issuance of the certificate of
industrial property assessment organization shall be performed as follows:
d1) Within
20 days after receiving the application for the re-issuance of the certificate
of industrial property assessment organization, the industrial property right
authority or the local industrial property right authority shall assess the
application following a procedure similar to the procedure for issuing the
certificate of industrial property assessment organization prescribed in Point
c Clause 2 of this Article;
d2) If the
certificate industrial property assessment organization is defective due to an
error of the industrial property right authority or the local industrial
property right authority, the mentioned authority shall re-issue the
certificate within 5 working days from the date of receipt of the request of
the industrial property assessment organization without charging any fee.
4. The revocation of certificates of industrial property
assessment organizations shall be performed as follows:
a) A
certificate of industrial property assessment organization shall be revoked in
the following cases:
a1) There is
evidence confirming that the certificate of industrial property assessment
organization has been issued contrary to laws;
a2) The
organization no longer meets the requirements prescribed in Clause 2 Article
201 of the Law on Intellectual Property;
a3) The
industrial property assessment organization terminates its assessment
operations;
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b) The
industrial property right authority or the local industrial property right
authority shall proactively or upon a request of an organization or individual
revoke the certificate of industrial property assessment organization if there
are grounds confirming that the concerned industrial property assessment
organization falls into one of the cases prescribed in Point a of this Clause;
c) An
application for the revocation of a certificate of industrial property
assessment organization submitted to the authority that issued such certificate
shall include a set of the following documents:
c1)
Application for the revocation of the certificate of industrial property
assessment organization;
c2) Evidence
backing up the grounds to request for the revocation of the certificate of
industrial property assessment organization;
d) The
procedure for revoking the certificate of industrial property assessment
organization shall be performed as follows:
d1) If an organization or individual
requests the revocation of the certificate of industrial property assessment
organization according to Point c of this Clause, within 1 month from the date
of receipt of the request, the certificate issuance authority shall provide a
written notification of such a request for the organization with the issued
certificate of industrial property assessment organization and impose a 1-month
time limit from the notification date for the organization to provide any
suggestion. The certificate issuance authority shall,
based on the suggestions of concerned parties, issue a decision to revoke the
certificate of industrial property assessment organization or refuse the
revocation of the certificate of industrial property assessment organization
and send it to the concerned parties;
d2) If there are grounds confirming that the
organization with the issued certificate of industrial property assessment
organization no longer satisfies the requirements prescribed in Clause 2
Article 201 of the Law on Intellectual Property, the certificate issuance
authority shall issue a written notification of the intended revocation of the
certificate of industrial property assessment organization to the mentioned
organization and impose a 1-month time limit from the notification date for it
to provide any suggestion. The certificate issuance authority shall,
based on the suggestions of the organization with the issued certificate, issue
a decision to revoke the certificate or a notification of not revoking the
certificate to the organization;
d3) In case of a decision to revoke the
certificate of industrial property assessment organization of a competent
authority, within 1 month from the receipt date of the mentioned decision, the
certificate issuance authority shall issue a decision to revoke the certificate;
d4) The industrial property right authority shall record the decision on
the revocation of the certificate of industrial property assessment
organization to the National Industrial Property Assessment Register and
disclose it on the Industrial Property Official Gazette and its web portal
within 2 months from the decision issuance date.
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a) The industrial
property right authority shall prepare the list of industrial property
assessment organizations, including the information recorded according to decisions
on issuance, re-issuance, and revocation of certificates of industrial property
assessment organizations and disclose or update it on its web portal annually;
b) The local industrial
property right authority shall notify the industrial property right authority
of information on the issuance, re-issuance, and revocation of certificates of
industrial property assessment organizations within 1 month from the decision
issuance date to serve the preparation of the list of industrial property
assessment organizations prescribed in this Clause.
1. The
professional inspection of the assessment of rights to plant varieties shall be
performed to assess the capacity for using knowledge and specialty to assess
and conclude matters concerning rights to plant varieties.
2. The
organization of the professional inspection of the assessment of rights to
plant varieties shall be performed as follows:
a) Plant
variety right authority is the authority competent to organize the professional
inspection of the assessment of rights to plant varieties;
b) The plant
variety right authority shall disclose notifications on its information portal,
specifying the conditions for participating in the inspection, application
submission procedures, inspection content, and expected time and location of
the inspection;
c) The
inspection shall be organized within 3 months from the date when at least 5
participants have their applications approved according to Clause 3 of this
Article;
d) The
results of the inspection shall be notified to the participants by the plant
variety right authority. Participants may request the plant variety right
authority to re-examine the results of the inspection;
dd) The
results of the inspection shall have a validity of 5 years for requesting the
People’s Committee of the province or centrally affiliated city to issue plant
variety right assessor’s cards.
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Registration
for participation in the professional inspection of assessment of rights to
plant varieties shall be performed as follows:
a)
Individuals meeting the following requirements shall be eligible for
registering for participation in the inspection according to this Article:
a1) Being
Vietnamese citizens with sufficient legal capacity;
a2) Residing
in Vietnam;
a3) Having
good moral qualities;
a4) Having
at least bachelor's degrees with majors suitable for the field registered for
inspection;
a5) Having
professionally worked in the field registered for inspection for at least 5
years.
b) An
application for participation in the professional inspection of assessment of
rights to plant varieties submitted to the plant variety right authority shall
include a set of the following documents:
b1)
Statement on registration for participation in the professional inspection of
assessment of rights to plant varieties, following Form No. 08 Appendix VI of
this Decree;
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b3)
Certified copies of the recruitment decision, labor contract, or other
documents proving the actual professional operations;
b4) 2 photos
sized 3 x 4 (cm);
b5) Payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the authority competent to settle this
procedure).
c) Within 15
days after receiving the application, the plant variety right authority shall
process the application according to the following regulations:
c1) If the
application is valid, the plant variety right authority shall issue a
notification of application acceptance, stating whether the inspection plan has
been set or has not been set due to an insufficient number of participants
according to Clause 2 of this Article;
c2) If the
application has deficiencies, the plant variety right authority shall issue a
notification of the intended refusal of the acceptance of the application,
specifying the reasons and imposing a 1-month time limit from the notification
date for the applicant to amend the deficiencies or object to the refusal.
After the imposed time limit, if the applicant fails to amend deficiencies or
provides inadequate amendments, does not have any objection or provides
inadequate objections, the plant variety right authority shall issue a decision
to refuse the acceptance of the application, specifying the reasons.
1. People's
Committees of provinces and centrally affiliated cities are competent to issue,
re-issue, and revoke plant variety right assessor's cards according to the
procedures prescribed in Clauses 2, 3, and 4 of this Article.
2. The
issuance of plant variety right assessor’s cards shall be performed as follows:
a) People’s Committees
of the provinces or centrally affiliated cities shall issue plant variety right
assessor’s cards to persons meeting the requirements prescribed in Clause 3
Article 201 of the Law on Intellectual Property if such persons apply for the
issuance and pay the prescribed fees. Requirements for eligibility for issuance
of plant variety right assessor’s cards prescribed in Clause 3 Article 201 of
the Law on Intellectual Property shall be understood as follows:
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a2) “Having
good moral qualities” shall be understood as not being subject to any
administrative fine for violations of plant variety right laws, not committing
acts of violating professional ethics, not being subject to criminal
prosecution, or having unspent convictions;
a3) “Having
at least bachelor's degrees with specialties suitable for the field requested
for issuance of assessor’s cards” shall be understood as having bachelor’s
degrees or post-university degrees in horticulture, agronomy, plant science, or
any major concerning plant varieties;
a4) “Having
professionally worked in the field requested for issuance of assessor’s cards
for at least 5 years” shall be understood as having directly engaged in the
compilation of drafts and guidelines on the implementation of legislative
documents on plant varieties, settlement of disputes, complaints,
denunciations, and inspections of plant varieties at plant variety right authorities,
plant variety study and teaching at research or training organizations
established and operated legally, or counseling about plant variety protection
laws on behalf of representatives of rights to plant varieties.
b) An
application for the issuance of a plant variety right assessor's card shall
include a set of the following documents:
b1)
Statement on request for the issuance of the assessor's card, following Form
No. 09 Appendix VI of this Decree;
b2) Original
or certified copies of the qualification certificate of professional inspection
of assessment of rights to plant varieties;
b3) Copies
of the bachelor's degree or post-university degree in horticulture, agronomy,
or any major concerning plant varieties;
b4)
Documents proving that the applicant has directly engaged in the specialty
concerning plant varieties for at least 5 years with confirmation of a
competent authority;
b5) 2 photos
sized 3 x 4 (cm);
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c) Within 1
month from the date of receipt of the application, the People’s Committee of
the province or centrally affiliated city shall assess the application according
to the following regulations:
c1) If the
application is valid, the People’s Committee of the province or centrally
affiliated city shall issue a decision to issue the assessor’s card, specifying
the name, permanent address, citizen ID number, and assessment specialty of the
person with the issued card;
c2) If the
application is invalid, the People’s Committee of the province or centrally
affiliated city shall issue a notification of the intended refusal of the
acceptance of the application, specifying the reasons and imposing a 1-month
time limit from the notification date for the applicant to amend the
deficiencies or object to the refusal. After the imposed time limit, if the
applicant fails to amend deficiencies or provides inadequate amendments, does
not have any objection or provides inadequate objections, the People’s
Committee of the province or centrally affiliated city shall issue a decision
to refuse the issuance of the assessor's card, specifying the reasons.
c3) The
plant variety right assessor’s card shall be made following Form No. 10
Appendix VI of this Decree.
3. The
re-issuance of plant variety right assessor’s cards shall be performed as
follows:
a) In the
following cases, the People’s Committee of the province or centrally affiliated
city shall issue a decision to re-issue the plant variety right assessor's card
if the assessor applies for the re-issuance and pays the prescribed fees:
a1) The
plant variety right assessor’s card is lost, defective, or damaged (torn,
dirty, faded, etc.) to the point of being unusable;
a2) The
information in the plant variety right assessor’s card prescribed in Point c1
Clause 2 of this Article has been changed.
b) The
assessor shall request the People’s Committee of the province or centrally
affiliated city to re-issue the plant variety right assessor's card for the
recording of changes prescribed in Point a2 of this Clause.
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c1)
Statement on request for the re-issuance of the assessor's card, following Form
No. 09 Appendix VI of this Decree;
c2) 2 photos
sized 3 x 4 (cm);
c3) Payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the authority competent to settle this
procedure).
d) The
processing of the application for the re-issuance of the plant variety right
assessor’s card shall be performed as follows:
d1) Within
15 days after receiving the application for the re-issuance of the plant
variety assessor’s card, the People’s Committee of the province or centrally
affiliated city shall assess the application following the procedure similar to
the procedure for issuing the plant variety right assessor's card prescribed in
Point c Clause 2 of this Article;
d2) If the
plant variety right assessor's card is defective due to an error of the
People’s Committee of the province or centrally affiliated city, the mentioned
authority shall re-issue the plant variety right assessor’s card within 5
working days from the date of receipt of the request of the person with the
issued card without charging any fee.
4. The
revocation of plant variety right assessor’s cards shall be performed as
follows:
a) A plant
variety right assessor’s card shall be revoked in the following cases:
a1) There is
evidence confirming that the assessor's card has been issued contrary to laws;
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a3) The
person with the issued assessor's card no longer engages in the assessment
operations;
a4) The
person with the issued assessor’s card is subject to the disciplinary
revocation of the assessor’s card under a decision of the competent authority.
b) The
People’s Committee of the province or centrally affiliated city proactively or
upon a request of an organization or individual revokes the assessor’s card if
there are grounds confirming that the person with the issued card falls into
one of the cases prescribed in Point a of this Clause;
c) An
application for the revocation of a plant variety right assessor's card shall
include a set of the following documents:
c1)
Application for the revocation of the plant variety right assessor’s card;
c2) Evidence
backing up the grounds to request the revocation of the plant variety right
assessor’s card.
d) The
procedure for revoking the plant variety right assessor’s card is as follows:
d1) If an
organization or individual requests the revocation of the plant variety right
assessor’s card according to Point c of this Clause, within 1 month from the
date of receipt of the request, the People’s Committee of the province or
centrally affiliated city shall provide a written notification of such a
request for the person with the issued assessor's card and impose a 1-month
time limit from the notification date for the him/her to provide any
suggestion. The People’s Committee of the province or centrally affiliated city
shall, based on the suggestions of the concerned parties, issue a decision to
revoke the plant variety right assessor's card or refuse the revocation of the
plant variety assessor's card to the concerned parties;
d2) If there
are grounds confirming that the person with the issued plant variety right
assessor's card no longer satisfies the requirements prescribed in Clause 2
Article 201 of the Law on Intellectual Property, the People’s Committee of the
province or centrally affiliated city shall issue a written notification of the
intended revocation of the plant variety right assessor’s card to the person
with the issued plant variety right assessor's card and impose a 1-month time
limit from the notification date for him/her to provide any suggestion. The
People’s Committee of the province or centrally affiliated city shall, based on
the suggestions of the person with the issued plant variety assessor’s card,
issue a decision to revoke the plant variety right assessor’s card or a
notification of not revoking the plant variety assessor’s card to such a
person;
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5. The preparation and
disclosure of the list of plant variety right assessors and notification of
changes to information concerning assessor’s cards shall be performed as
follows:
a) The
People’s Committee of the province or centrally affiliated city shall prepare a
list of plant variety right assessors according to decisions on issuance,
re-issuance, and revocation of plant variety right assessor’s cards and
disclose the list on its web portal within 2 months from the decision issuance
date;
b) The
People’s Committee of the province or centrally affiliated city shall notify
the plant variety right authority of the list of assessors and the information
on changes concerning assessor’s cards of assessors working for the
corresponding local plant variety right assessment organizations to serve the
issuance, re-issuance, or revocation of certificates of local assessment
organizations.
1. People's
Committees of provinces and centrally affiliated cities are competent to issue,
re-issue, and revoke certificates of plant variety assessment organizations and
prepare and disclose the list of plant variety right assessment organizations
according to Clauses 2, 3, 4, and 5 of this Article.
2. The
issuance of certificates of plant variety right assessment organizations shall
be performed as follows:
a) People’s
Committees of the provinces or centrally affiliated cities shall issue
certificates of plant variety right assessment organizations to organizations
meeting the requirements prescribed in Clause 2 Article 201 of the Law on
Intellectual Property if such organizations apply for the issuance and pay the
prescribed fees;
b) An
application for the issuance of a certificate of plant variety right assessment
organization shall include a set of the following documents:
b1)
Statement on the request for the issuance of the certificate of plant variety
right assessment organization following Form No. 11 Appendix VI of this Decree;
b2)
Certified copies of the recruitment decision or labor contract between the
organization and its plant variety right assessor;
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c) Within 1
month from the date of receipt of the application, the People’s Committee of
the province or centrally affiliated city shall assess the application
according to the following regulations:
c1) If the
application is valid, the People’s Committee of the province or centrally
affiliated city shall issue a decision on the issuance of the certificate of
assessment organization, specifying the full name, business name, and address
of the organization and the list of plant variety right assessors that are its
members; record the information to the list of assessment organizations and
disclose it on its web portal within 5 working days from the decision issuance
date;
c2) If the
application has deficiencies, the People’s Committee of the province or
centrally affiliated city shall issue a notification of the intended refusal of
the acceptance of the application, specifying the reasons and imposing a
1-month time limit from the notification date for the applicant to amend the
deficiencies or object to the refusal. After the imposed time limit, if the
applicant fails to amend deficiencies or provides inadequate amendments, does
not have any objection or provides inadequate objections, the People’s
Committee of the province or centrally affiliated city shall issue a decision
to refuse the issuance of the certificate of plant variety right assessment
organization, specifying the reasons.
c3) The
certificate of plant variety right assessment organization shall be made
following Form No. 12 Appendix VI of this Decree.
3. The
re-issuance of certificates of plant variety right assessment organizations
shall be performed as follows:
a) In the
following cases, the People’s Committee of the province or centrally affiliated
city shall issue a decision to re-issue the certificate of plant variety right
assessment organization if the assessment organization applies for the
re-issuance and pays the prescribed fees:
a1) The
certificate of plant variety assessment organization is lost, defective, or
damaged (torn, dirty, faded, etc.) to the point of being unusable;
a2) The
information in the certificate of plant variety right assessment organization
prescribed in Point c1 Clause 2 of this Article has been changed.
b) The plant
variety right assessment organization shall perform the procedure for
requesting the authority that has issued the certificate of plant variety right
assessment organization to re-issue the certificate if it wishes to continue
its assessment operations;
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c1) Statement on the request for the re-issuance of the
certificate of plant variety right assessment organization, following Form No.
11 Appendix VI of this Decree;
c2) Certified copies of the amended certificate of business
registration or amended certificate of operation registration of the plant
variety right assessment organization in the case of changing the information
on the organization, excluding the case where the enterprise identification
number is declared in the statement on request for the re-issuance of the
certificate of plant variety right assessment organization;
c3)
Certified copies of the recruitment decision, labor contract, or decision on
the termination of the labor contract between the organization and its plant
variety right assessor in case of changes to the plant variety right assessor;
c4) Payment
invoices of fees and charges (in cases of paying fees and charges via postal
services or directly to the account of the authority competent to settle this
procedure).
d) The
processing of the application for the re-issuance of the certificate of plant variety
right assessment organization shall be performed as follows:
d1) Within
15 days after receiving the application for the re-issuance of the certificate
of plant variety right assessment organization, the People’s Committee of the
province or centrally affiliated city shall assess the application following
the procedure similar to the procedure for issuing the certificate of plant
variety right assessment organization prescribed in Point c Clause 2 of this
Article;
d2) If the
certificate of plant variety assessment organization is defective due to an
error of the People’s Committee of the province or centrally affiliated city,
the mentioned authority shall re-issue the certificate within 5 working days
from the date of receipt of the request of plant variety right assessment
organization without charging any fee.
4. The revocation of certificates of plant variety right
assessment organizations shall be performed as follows:
a) A
certificate of plant variety right assessment organization shall be revoked in
the following cases:
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a2) The
organization no longer meets the requirements prescribed in Clause 2 Article
201 of the Law on Intellectual Property;
a3) The
plant variety right assessment organization terminates its assessment
operations;
a4) There is
evidence confirming that the plant variety right assessment organization
violates the laws and is subject to a revocation of the certificate of plant
variety right assessment organization requested by the competent authority.
b) The
People’s Committee of the province or centrally affiliated city proactively or
upon a request of an organization or individual revokes the certificate of
plant variety right assessment organization if there are grounds confirming
that the plant variety right assessment organization falls into one of the
cases prescribed in Point a of this Clause;
c) An
application for the revocation of a certificate of plant variety right
assessment organization shall include a set of the following documents:
c1)
Application for the revocation of the certificate of plant variety right
assessment organization;
c2) Evidence
backing up the grounds to request the revocation of the certificate of plant
variety right assessment organization;
d) The
procedure for revoking the certificate of plant variety right assessment is as
follows:
d1) If an organization or individual
requests the revocation of the certificate of plant variety right assessment
organization according to Point c of this Clause, within 1 month from the date
of receipt of the request, the certificate issuance authority shall provide a
written notification of such a request for the organization with the issued
certificate plant variety right assessment organization and impose a 1-month
time limit from the notification date for the organization to provide any
suggestion. The certificate issuance authority shall,
based on the suggestions of concerned parties, issue a decision to revoke the
certificate of plant variety right assessment organization or refuse the
revocation of the certificate of plant variety right assessment organization
and send it to the concerned parties;
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d3) In case of a decision to revoke the
certificate of plant variety right assessment organization of a competent
authority, within 1 month from the receipt date of the mentioned decision, the
certificate issuance authority shall issue a decision to revoke the certificate;
d4) The People’s Committee of the province or centrally affiliated city
shall disclose the decision to revoke the certificate of plant variety right
assessment organization on its web portal within 2 months from the decision
issuance date.
5. The
People’s Committee of the province or centrally affiliated city shall prepare a
list of plant variety right assessment organizations according to this Article
following the decisions on issuance, re-issuance, and revocation of
certificates of plant variety right assessment organizations. The list of plant
variety right assessment organizations shall be disclosed on the web portal of
the People’s Committee of the province or centrally affiliated city. The
People’s Committee of the province or centrally affiliated city shall notify
the plant variety right authority of the list of plant variety right assessment
organizations and changes concerning the corresponding local plant variety
right assessment organizations to serve the recording of information to the
National Register of List of Plant Variety Right Assessment Organization.
a)
Determining the scope of protection of subjects of industrial property rights
and rights to plant varieties;
b)
Determining if the assessment subject satisfies the requirements to be
considered elements of infringement on industrial property rights or rights to
plant varieties according to Article 74 through Article 80 of this Decree;
c)
Determining if there is any identicalness or similarity that causes confusion
or indistinguishability or copy between the assessment subject and the subject
under protection;
d)
Evaluating industrial property rights and rights to plant varieties following
the pricing methods prescribed in prices laws; evaluating damage according to
Article 204 and Article 205 of the Law on Intellectual Property.
2.
Assessment of industrial property and rights to plant varieties by the fields
prescribed in the Law on Intellectual Property includes:
a) The field
of industrial property assessment includes the following specialties:
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a2) Assessment of
industrial designs;
a3) Assessment of marks
and geographical indications;
a4)
Assessment of other industrial property rights.
b) Field of
assessment of rights to plant varieties.
a) Request
the assessment organization or the assessor to provide answers for the
assessment conclusion following his/her requested content and time limit;
b) Request
the assessment organization or the assessor the explain the assessment
conclusion;
c) Request
additional assessment or re-assessment according to Article 120 of this Decree;
d) Negotiate
the assessment service price.
2. A
petitioner for assessment of industrial property or rights to plant varieties
shall:
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b) Clearly
and specifically present issues or difficulties in content requiring assessment;
c) Pay the
agreed assessment cost or advance the assessment cost upon request from the
assessment organization or assessor;
d) Receive
the assessment subject upon request of the assessment organization or assessor.
1.
Organizations and individuals that may request the assessment of industrial
property and rights to plant varieties include:
a) Holders
of industrial property rights and rights to plant varieties;
b)
Organizations and individuals that are requested for infringement handling or
subject to complaints or denunciations of industrial property rights or rights
to plant varieties;
c) Other
organizations and individuals with benefits and rights concerning the dispute,
infringement, complaint, or denunciation of industrial property rights or
rights to plant varieties.
2.
Organizations and individuals prescribed in Clause 1 of this Article may
request the assessment organization or the assessor of industrial property or
rights to plant varieties to perform the assessment or authorize other
organizations or individuals to carry out such request.
3.
Independent assessors or assessment organizations receiving applications for
assessment shall estimate the assessment cost and negotiate and conclude
assessment contracts with the requesting organizations or individuals, except
for cases of refusing the assessment as per regulation.
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5. An
assessment service contract may include:
a) Name and
address of the organization or individual requesting the assessment;
b) Name and
address of the assessment organization or the assessor;
c) Content
requested for assessment;
d) Relevant
documents, evidence, and items;
dd) Time
limit for returning the assessment conclusion;
e) Rights
and tasks of parties;
g) Location
and time of assessment;
h)
Assessment cost and payment methods;
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k) Liability
to compensate for damage and dispute settlement methods.
If the assessment
request is enclosed with the assessment subject, the delivery, receipt, and
return of such a subject shall be made into minutes with the following
contents:
1. Time and
location of the delivery, receipt, and return of the assessment subject.
2. Names and
addresses of the delivering party and the receiving party or the
representative.
3. Name of
the assessment subject and relevant documents and items.
4. Condition
and methods of preserving the assessment subject during the delivery, receipt,
and return.
5.
Signatures of the delivering and receiving parties or the representative in
case of authorizing a third party to request the assessment.
1. The
assessment organization or assessor may collect assessment samples (specific
items that are elements of infringement and subjects of industrial property or
rights to plant varieties under protection) or request the petitioner to provide
assessment samples. The collection of assessment samples shall be made into
minutes with the witness and signatures of concerned parties.
2. The
delivery, receipt, and return of assessment samples shall be carried out
according to Article 117 of this Decree.
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2. In the
case of an individual assessment, the assessor shall perform the whole
assessment and take responsibility for his/her assessment conclusion. In the
case of a collective assessment concerning matters subject to the same
professional field, assessors shall jointly perform the assessment, sign the
document on the general assessment conclusion, and take responsibility for the
conclusion. If there are different opinions, each assessor shall write his/her
opinion on the conclusion to the minutes of the general assessment conclusion
and take responsibility for such an opinion. In the case of a collective assessment
concerning matters subject to different professional fields, each assessor
shall perform his/her part of the work and take responsibility for his/her
assessment conclusion.
1. An
additional assessment shall be performed in case the assessment conclusion is
incomplete or unclear about the content subject to assessment or in case of new
details requiring clarification. Any request for additional assessment and the
performance of such assessment shall comply with regulations on first-time
assessment.
2. A
re-assessment shall be performed in case the petitioner disagrees with the
assessment result or in case of conflicts among assessment conclusions on the
same matter subject to assessment. The re-assessment may be performed by the
assessment organization or the assessor that performed the previous assessment
or by another assessment organization or assessor following the request of the
petitioner.
3. In case
of differences among assessment conclusions or between the assessment
conclusion with the professional suggestion of an industrial property right
authority or plant variety right authority on the same matter subject to
assessment, the petitioner may continue to request the assessment organization
or the assessor to perform the re-assessment.
4. In case
of necessity, during the assessment of industrial property rights or rights to
plant varieties, the assessment organization may establish a counseling council
for assessment of industrial property rights or rights to plant varieties to
collect professional suggestions on matters subject to assessment. Matters
related to the assessment counseling council shall be handled as follows:
a) The
assessment organization shall select council members related to the assessment
specialty and issue a decision to establish the counseling council for
assessment of industrial property and rights to plant varieties. The council
for assessment of industrial property and rights to plant varieties shall
include the president and members. The number of its members shall be an odd
number consisting of at least 3 members.
b) The
counseling council for assessment of industrial property and rights to plant
varieties shall operate under democratic principles and organize public voting
on professional suggestions. Members shall jointly conduct professional
discussions, and their suggestions shall be recorded in the minutes of meetings
of the council.
c) The whole
process of assessment counseling of the counseling council for assessment of
industrial property and rights to plant varieties shall be adequately specified
under the form of working minutes. The minutes shall bear the signatures of the
president and the members of the council and be stored in the assessment
application.
1.
Conclusions of assessment of industrial property and rights to plant varieties
prescribed in Clause 5 Article 201 of the Law on Intellectual Property shall be
made in writing.
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a) Name and
address of the assessment organization or the assessor;
b) Name and
address of the organization or individual requesting the assessment;
c) Subject,
content, and scope of assessment;
d)
Assessment method;
dd)
Assessment conclusion;
e) Assessment
time, location, and completion.
3. The
independent assessor or assessment organization shall send a document on the
assessment conclusion to the organization or individual requesting the
assessment according to the agreed time limit prescribed in the assessment
contract. In the case of an independent assessment, the assessor performing the
assessment shall sign the document on the assessment conclusion and take
responsibility for his/her assessment conclusion. In case the assessment is
performed by an organization, the assessor in charge of the assessment and the
legal representative of the assessment organization shall jointly sign and
stamp the document on the assessment conclusion and take responsibility for
such a conclusion.
4. In case
the assessment needs more time, the independent assessor or the assessment
organization shall promptly notify the organization or individual requesting
the assessment of such matter in writing.
The price
for the service of assessment of industrial property or rights to plant
varieties shall be agreed on by the concerned parties.
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2. The
processing of Hague applications designating Vietnam disclosed by the
International Office before the effective date of this Decree that have yet to
have any decision to accept or refuse the protection shall comply with this
Decree and the Hague Agreement.
3. The
processing of Hague applications originating from Vietnam, submitted to
industrial property right authorities before the effective date of this Decree,
that have yet to be sent to the International Office shall comply with this
Decree and the Hague Agreement.
1. This
Decree comes into force as of August 23, 2023.
2. This
Degree replaces Decree No. 103/2006/ND-CP dated September 22, 2006 dated
September 22, 2006, regulations on the protection of rights concerning
industrial property rights, rights to plant varieties, and state management of
intellectual property prescribed in Decree No. 105/2006/ND-CP dated September
22, 2006, Decree No. 119/2010/ND-CP dated October 30, 2010, Decree No.
122/2010/ND-CP dated October 31, 2010, and Article 1 of Decree No.
154/2018/ND-CP dated November 9, 2018 and annuls several regulations on
conditions for investment and trading in the field of state management of the
Ministry of Science and Technology of Vietnam and several regulations on
specialized inspection.
Article
125. Implementation responsibilities
Ministers,
Directors of ministerial agencies, Directors of governmental agencies, and
Chairpersons of the People’s Committees of provinces, and centrally affiliated
cities shall implement this Decree.
ON BEHALF OF THE GOVERNMENT
PP. PRIME MINISTER
DEPUTY PRIME MINISTER
Tran Luu Quang
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