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NATIONAL ASSEMBLY
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 50/2005/QH11
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Hanoi, November 29, 2005
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LAW
ON
INTELLECTUAL PROPERTY
National Assembly of the Socialist
Republic of Vietnam Legislature XI, Session 8
(From 18 October until 29 November 2005)
Pursuant to the 1992 Constitution of the Socialist Republic
of Vietnam as amended by Resolution 51/2001/QH10 passed by Legislature X of the
National Assembly at its 10th Session on 25 December 2001;
This Law regulates intellectual property.
PART I
GENERAL PROVISIONS
Article 1. Governing scope
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Article 2. Applicable entities
This Law shall apply to Vietnamese organizations and
individuals and to foreign organizations and individuals who satisfy the
conditions stipulated in this Law and in any international treaty of which the
Socialist Republic of Vietnam is a member.
Article 3. Subject matter of
intellectual property rights
1. The subject matter of copyright shall comprise literary,
artistic and scientific works; the subject matter of copyright related rights
shall comprise performances, audio and visual fixation, broadcasts and
satellite signals carrying coded programmes.
2. The subject matter of industrial property rights shall
comprise inventions, industrial designs, designs of semi-conducting closed
circuits, trade secrets, marks, trade names and geographical indications.
3. The subject matter of rights to plant varieties shall
comprise plant varieties and reproductive materials.
Article 4. Interpretation of terms
In this Law, the following terms shall be construed as
follows:
1. Intellectual property rights means rights of an
organization or individual to intellectual assets comprising copyright and
copyright related rights, industrial property rights and rights to plant
varieties.
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3. Copyright related rights (hereinafter referred to
as related rights) means rights of an organization or individual to
performances, audio and visual fixation, and broadcasts and satellite signals
carrying coded programmes.
4. Industrial property rights means rights of an
organization or individual to inventions, industrial designs, designs of
semi-conducting closed circuits, trade secrets, marks, trade names and
geographical indications which such organization or individual created or owns,
and the right to prevent unfair competition.
5. Rights to plant varieties means rights of an
organization or individual to new plant varieties which such organization or individual
has selected and created, discovered and developed, or which they own.
6. Intellectual property right holder means an owner
of intellectual property rights or an organization or individual to whom
intellectual property rights are assigned by the owner.
7. Work means a creation of the mind in the literary,
artistic or scientific sector, expressed in any mode or form.
8. Derivative work means a work translated from one
language into another; or an adapted, modified, transformed, compiled,
annotated or selected work.
9. Published work, audio and visual fixation means a
work or audio and visual fixation which has been published with the permission
of the copyright holder or related right holder in order to distribute it to
the public in a reasonable amount of copies.
10. Reproduction means the making of one or more
copies of a work, audio and visual fixation by whatever mode or in whatever
form, including permanent or provisional backup of the work in electronic form.
11. Broadcasting means the transmission of sound or
image or both sound and image of a work, performance, audio and visual fixation
or broadcast to the public by wireless or landline means including satellite
transmission, in such a way that the public may access such work from any place
and time the public selects.
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13. Industrial design means the outward appearance of
a product embodied in three dimensional configuration, lines, colours or a
combination of such elements.
14. Semiconductor integrated circuit means a product
in its intermediate or final form in which the elements, at least one of which
is an active element, and some or all of the interconnections, are integrally
formed in or on a piece of semiconductor material and which is intended to
perform an electronic function. Integrated circuit is synonymous with IC, chip
and micro-electronic circuit.
15. Design of semi-conducting closed circuits
(hereinafter referred to as layout design) means a three dimensional
disposition of circuit elements and their interconnections in a semi-conducting
closed circuit.
16. Mark means any sign used to distinguish goods or
services of different organizations or individuals.
17. Collective mark means a mark used to distinguish
goods or services of members of an organization which is the owner of such mark
from marks of non-members of such organization.
18. Certification mark means a mark which is
authorized by its owner to be used by another organization or individual on the
latter's goods or services in order to certify the origin, raw materials,
materials, mode of manufacture of goods or manner of provision of services, and
the quality, accuracy, safety or other characteristic of goods or services
bearing such mark.
19. Integrated marks means identical or similar marks
registered by the same entity and intended for use on products or services
which are of the same, similar or interrelated type.
20. Well known mark means a mark widely known by
consumers throughout the territory of Vietnam.
21. Trade name means the designation of an
organization or individual used in business activities in order to distinguish
the business entity bearing such trade name from other business entities in the
same business sector and area.
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22. Geographical indication means the sign used to
identify a product as originating from a specific region, locality, territory
or country.
23. Trade secret means information obtained from
activities of financial or intellectual investment, which has not yet been
disclosed and which is able to be used in business.
24. Plant variety means a plant grouping within a
single botanical taxon of the lowest known rank, which is morphologically
uniform and suitable for being propagated unchanged, and can be defined by the
expression of phenotypes resulting from a genotype or a combination of given
genotypes, and distinguished from any other plant grouping by the expression of
at least one inheritable phenotype.
25. Protection title means a document granted by the
competent State body to an organization or individual in order to establish
industrial property rights to an invention, industrial design, layout design,
mark or geographical indication; or in order to establish rights to a plant
variety.
Article 5. Application of laws
1. The provisions of the Civil Code shall apply to
intellectual property related civil matters which are not regulated by this
Law.
2. Where there are any differences between the provisions on
intellectual property in this Law and the provisions in other laws, the provisions
in this Law shall apply.
3. Where an international treaty of which the Socialist
Republic of Vietnam is a member contains provisions different from those in
this Law, such international treaty shall apply.
Article 6. Grounds for the
generation and establishment of intellectual property rights
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2. Related rights shall arise at the moment a performance,
audio and visual fixation, broadcast or satellite signal carrying coded
programmes is fixed or displayed without causing loss or damage to copyright.
3. Industrial property rights shall be established as
follows:
(a) Industrial property rights to an invention,
industrial design, layout design, mark or geographical indication shall be
established on the basis of a decision of the competent State body to grant a
protection title in accordance with the registration procedures stipulated in
this Law or the recognition of international registration pursuant to an
international treaty of which the Socialist Republic of Vietnam is a member. In
the case of a well known mark, industrial property rights shall be established
on the basis of use and shall not be dependent on registration procedures;
(b) Industrial property rights to a trade name shall
be established on the basis of lawful use thereof;
(c) Industrial property rights to a trade secret shall
be established on the basis of lawful acquirement of the trade secret and
maintaining confidentiality thereof;
(d) The right to prevent unfair competition shall be
established on the basis of competitive activities in business.
4. Rights to a plant variety shall be established on the
basis of a decision of the competent State body to grant a plant variety
protection title in accordance with the registration procedures stipulated in
this Law.
Article 7. Limitations on
intellectual property rights
1. Intellectual property right holders shall only be
permitted to exercise their rights within the scope and term of protection
provided for in this Law.
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3. In order to assure objectives of national defence and
security, the people's livelihood and other interests of the State and society
stipulated in this Law, the State may prohibit or restrict the exercise of
intellectual property rights by the holders thereof or may compel such holders
to license one or more of their rights to other organizations or individuals on
appropriate terms.
Article 8. Policies of the State on
intellectual property
1. To recognize and protect intellectual property rights of
organizations and individuals on the basis of harmonizing the interests of
intellectual property right holders and the public interest; not to protect
intellectual property objects which are contrary to social ethics and public
order or which harm national defence and security.
2. To encourage and promote activities of creation and
utilization of intellectual assets aimed at contributing to socio-economic
development and improving the people's material and spiritual life.
3. To provide financial support for the receipt and use of
transferred intellectual property rights servicing the public interest; to
encourage Vietnamese and foreign organizations and individuals to provide
financial aid for creative activities and for the protection of intellectual
property rights.
4. To prioritize investment in training and fostering senior
officials, public servants and other relevant subjects engaged in the work of
protecting intellectual property rights and to prioritize research into and
application of science and techniques for the protection of intellectual
property rights.
Article 9. Right and responsibility
of organizations and individuals in the protection of intellectual property
rights
Organizations and individuals shall have the right to
themselves take measures permitted by law to protect their intellectual
property rights, and shall be obliged to respect the intellectual property
rights of other organizations and individuals in accordance with the provisions
of this Law and other relevant laws.
Article 10. Contents of State
administration of intellectual property
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2. Promulgating and organizing the implementation of legal
instruments on intellectual property.
3. Organizing an administrative apparatus for intellectual
property; training and fostering staff to administer intellectual property.
4. Granting and carrying out other procedures related to
registered copyright certificates, registered related rights certificates,
protection titles for industrial property objects and plant variety protection
titles.
5. Inspecting and examining compliance with the law on
intellectual property; settling complaints and denunciations, and dealing with
breaches of the law on intellectual property.
6. Organizing information and statistics on intellectual
property.
7. Organizing and administering intellectual property
assessment activities.
8. Educating, and communicating and disseminating knowledge
about intellectual property and the law on intellectual property.
9. Conducting international co-operation on intellectual
property.
Article 11. Responsibility for State
administration of intellectual property
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2. The Ministry of Science and Technology shall be
responsible before the Government to preside over co-operation with the
Ministry of Culture and Information and the Ministry of Agriculture and Rural
Development to carry out State administration of intellectual property and of
industrial property rights.
The Ministry of Culture and Information shall, within the
scope of its duties and powers, carry out State administration of copyright and
related rights.
The Ministry of Agriculture and Rural Development shall,
within the scope of its duties and powers, carry out State administration of
rights to plant varieties.
3. Ministries and ministerial equivalent bodies shall,
within the scope of their respective duties and powers, co-ordinate with the
Ministry of Science and Technology, the Ministry of Culture and Information and
the Ministry of Agriculture and Rural Development to carry out State
administration of industrial property.
4. People's committees at all levels shall, within the scope
of their authority, carry out State administration of industrial property
within their respective localities.
5. The Government shall provide specific regulations on the
powers and responsibilities for State administration of industrial property of
the Ministry of Science and Technology, the Ministry of Culture and Information,
the Ministry of Agriculture and Rural Development Science and of people's
committees at all levels.
Article 12. intellectual property
fees and charges
Organizations and individuals shall be required to pay fees
and charges when carrying out procedures related to intellectual property
rights in accordance with the provisions of this Law and other related laws.
PART II
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Chapter I
CONDITIONS FOR
PROTECTION OF COPYRIGHT AND RELATED RIGHTS
Section 1. CONDITIONS FOR PROTECTION
OF COPYRIGHT
Article 13. Authors and copyright
holders with works which are protected by copyright
1. Organizations and individuals with works which are
protected by copyright comprise persons who directly create such works and
copyright holders stipulated in articles 37 to 42 inclusive of this Law.
2. Authors and copyright holders stipulated in clause 1 of
this article shall comprise Vietnamese organizations and individuals; foreign
organizations and individuals with works published for the first time in
Vietnam and not yet published in any other country, or with works also
published in Vietnam within thirty days after publication for the first time in
another country; and foreign organizations and individuals with works which are
protected in Vietnam pursuant to an international treaty on copyright of which
the Socialist Republic of Vietnam is a member.
Article 14. Types of works which are
protected by copyright
1. Literary, artistic and scientific works which are
protected by copyright comprise:
(a) Literary works, scientific works, textbooks,
teaching courses and other works expressed in written language or other
characters;
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(c) Press works;
(d) Musical works;
(dd) Stage works;
(e) Cinematographic works and works created by a
process analogous to cinematography (hereinafter all referred to as
cinematographic works);
(g) Plastic art works and applied art works;
(h) Photographic works;
(i) Architectural works;
(k) Sketches, plans, maps and drawings related to
topography or scientific works;
(l) Folklore and folk art works;
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2. Derivative works shall only be protected pursuant to the
provisions of clause 1 of this article if such protection is not prejudicial to
the copyright in the works used to create such derivative works.
3. Protected works as stipulated in clauses 1 and 2 of this
article must be created personally by authors through their intellectual labour
and without copying the works of others.
4. The Government shall provide detailed guidelines on the
types of works stipulated in clause 1 of this article.
Article 15. Subject matter outside
the category of copyright protection
1. News of the day as mere items of information.
2. Legal instruments, administrative and other documents in
the judicial domain, and official translations of such documents.
3. Processes, systems, operational methods, concepts,
principles and data.
Section 2. CONDITIONS FOR PROTECTION
OF RELATED RIGHTS
Article 16. Organizations and
individuals eligible for protection of related rights
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2. Organizations and individuals who own performances
defined in clause 1 of article 44 of this Law.
3. Organizations and individuals who fix for the first time
the sounds and images of performances or other sounds and images (hereinafter
all referred to as producers of audio and visual fixation).
4. Organizations which initiate and carry out broadcasting
(hereinafter referred to as broadcasting organizations).
Article 17. Subject matter of
related rights eligible for protection
1. Performances shall be protected if they fall into one of
the following categories:
(a) They are made by Vietnamese citizens in Vietnam or
abroad;
(b) They are made by foreigners in Vietnam;
(c) They are fixed on audio and visual fixation and
protected pursuant to the provisions of article 30 of this Law;
(d) They have not yet been fixed on audio and visual
fixation but have already been broadcast and are protected pursuant to the
provisions of article 31 of this Law;
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2. Audio and visual fixation shall be protected if it falls
into one of the following categories:
(a) It belongs to audio and visual fixation producers
bearing Vietnamese nationality;
(b) It belongs to audio and visual fixation producers
protected pursuant to an international treaty of which the Socialist Republic
of Vietnam is a member.
3. Broadcasts and satellite signals carrying coded
programmes shall be protected if they fall into one of the following
categories:
(a) They belong to broadcasting organizations bearing
Vietnamese nationality;
(b) They belong to broadcasting organizations
protected pursuant to an international treaty of which the Socialist Republic
of Vietnam is a member.
4. Performances, audio and visual fixation, broadcasts and
satellite signals carrying coded programmes shall only be protected pursuant to
the provisions of clauses 1, 2 and 3 of this article on the condition that they
are not prejudicial to copyright.
Chapter II
CONTENTS OF,
LIMITATIONS ON AND TERM OF PROTECTION OF COPYRIGHT AND RELATED RIGHTS
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Article 18. Copyright
Copyright in works regulated in this Law shall comprise
moral rights and economic rights.
Article 19. Moral rights
Moral rights [of authors] shall comprise the following
rights:
1. To give titles to their works.
2. To attach their real names or pseudonyms to their works;
to have their real names or pseudonyms acknowledged when their works are
published or used.
3. To publish their works or to authorize other persons to
publish their works.
4. To protect the integrity of their works; and to forbid
other persons to modify, edit or distort their works in whatever form, causing
harm to the honour and reputation of the author.
Article 20. Economic rights
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(a) To make derivative works;
(b) To display their works to the public;
(c) To reproduce their works;
(d) To distribute or import the original or copies of
their works;
(dd) To communicate their works to the public by
wireless or landline means, electronic information networks or other technical
means;
(e) To lease the original or copies of cinematographic
works and computer programs.
2. Authors or copyright holders shall exclusively exercise
the rights stipulated in clause 1 of this article or may grant other persons
the right to exercise such rights pursuant to the provisions of this Law.
3. When any organization or individual exercises one,
several or all of the rights stipulated in clause 1 of this article and in
article 19.3 of this Law, such organization or individual must ask for
permission from the copyright holder and must pay royalties, remuneration or
other material benefits to the copyright holder.
Article 21. Copyright in
cinematographic works and dramatic works
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Persons who act as directors, playwrights, choreographers,
music composers, art designers, stage sound designers, lighting and art stage
designers, stage props and technical effects designers, and persons engaged in
other creative jobs in making stage works shall have the rights stipulated in
clauses 1, 2 and 4 of article 19 of this Law and other rights as agreed.
2. Organizations and individuals who invest finance or
material and technical facilities in the production of cinematographic works
and stage works shall be holders of the rights stipulated in article 19.3 and
article 20 of this Law.
3. The organizations and individuals stipulated in clause 2
of this article shall be obliged to pay royalties, remuneration or other
material benefits as agreed with the persons stipulated in clause 1 of this
article.
Article 22. Copyright in computer
programs and data collections
1. Computer program means a set of instructions expressed in
the form of commands, codes, diagrams and other forms which, when incorporated
in a device readable by a computer, are capable of enabling such computer to
perform a job or achieve a specific result.
Computer programs shall be protected the same as literary
works, irrespective of whether the computer programs are expressed in the form
of source codes or machine codes.
2. Data collection means a set of data selected or arranged
in a creative way and expressed in electronic or other forms.
Copyright protection of data collections shall not extend to
protection of the data itself, and must not be prejudicial to copyright in the
data itself.
Article 23. Copyright in folklore
and folk art works
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(a) Folk tales, lyrics and riddles;
(b) Folk songs and melodies;
(c) Folk dances, plays, rites and games;
(d) Folk art products including graphics, paintings,
sculpture, musical instruments, architectural models and other artistic
expressions in any material form.
2. Organizations and individuals using folklore and folk art
works must cite the origins of the folklore and folk art works, and must ensure
that the authentic value of such folklore and folk art works is preserved.
Article 24. Copyright in literary,
artistic and scientific works
The Government shall issue specific regulations governing
the protection of copyright in the literary, artistic and scientific works
stipulated in article 14.1 of this Law.
Article 25. Cases when published
works may be used without having to seek permission or pay royalties or
remuneration
1. Published works may be used without having to seek
permission or pay royalties or remuneration in the following cases:
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(b) Reasonable quoting from a work in order to comment
on or illustrate one's own works, without misrepresenting the author's views;
(c) Quoting from a work in order to write an article
published in a newspaper or periodical, in a radio or television broadcast or
in a documentary, without misrepresenting the author's views;
(d) Quoting from a work in school or university for
lecturing purposes without misrepresenting the author's views and not for
commercial purposes;
(dd) Copying of a work by a library for archival and
research purposes;
(e) Performing a stage work or other art work in mass
cultural, communication or mobilization activities without collecting fees in
any form;
(g) Audio-visual recording of a performance in order
to report current events or for teaching purposes;
(h) Photographing or televising plastic art; or an
architectural, photographic, or applied art work displayed at a public place in
order to present images of such work;
(i) Transcribing a work into braille or into
characters of other languages for the blind;
(k) Importing copies of another's work for personal
use.
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3. The use of works in the cases stipulated in clause 1 of
this article shall not apply to architectural works, plastic works and computer
programs.
Article 26. Cases when published
works may be used without having to seek permission but royalties or
remuneration must be paid
1. A broadcasting organization which uses a published work
to make a broadcast which is sponsored, contains an advertisement or which
collects fees in any form shall not be required to seek permission but must pay
royalties or remuneration to the copyright holder in accordance with
regulations of the Government.
2. Organizations and individuals who use works stipulated in
clause 1 of this article must neither affect the normal use of such works nor
cause prejudice to the rights of the author or copyright holder, and must
provide information being the author's name and the source and origin of the
work.
3. The use of works in the cases stipulated in clause 1 of
this article shall not apply to cinematographic works.
Article 27. Term of copyright
protection
1. The moral rights stipulated in clauses 1, 2 and 4 of
article 19 of this Law shall be protected for an indefinite term.
2. The moral rights stipulated in article 19.3 and the
economic rights stipulated in article 20 of this Law shall enjoy the following
terms of protection:
(a) Cinematographic works, photographic works, stage
works, applied art works and anonymous works shall have a term of protection of
fifty (50) years as from the date of first publication. If a cinematographic
work or stage work has not been published within fifty (50) years from the date
of its formulation, the term of protection shall be calculated from the date of
its formulation. When information on the author of an anonymous work appears,
the term of protection of such work shall be calculated pursuant to sub-clause
(b) below;
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(c) The term of protection stipulated in sub-clauses
(a) and (b) of this clause shall expire at 24:00 hours on 31 December of the
year of expiration of the copyright protection term.
Article 28. Conduct constituting
infringement of copyright
1. Appropriating copyright in a literary, artistic or
scientific work.
2. Impersonating an author.
3. Publishing or distributing a work without permission from
the author.
4. Publishing or distributing a work of joint authors
without permission from the co-authors.
5. Modifying, editing or distorting a work in any way which
prejudices the honour and reputation of the author.
6. Copying a work without permission from the author or
copyright holder, except in the cases stipulated in sub-clauses (a) and (dd) of
article 25.1 of this Law.
7. Making a derivative work without permission from the
author or copyright holder of the work used for making such derivative work,
except in the case stipulated in sub-clause (i) of article 25.1 of this Law.
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9. Leasing out a work without paying royalties, remuneration
or other material benefits to the author or copyright holder.
10. Duplicating, producing copies of, distributing,
displaying or communicating a work to the public via a communications network
or digital means without permission from the copyright holder.
11. Publishing a work without permission from the copyright
holder.
12. Deliberately destroying or de-activating the technical
solutions applied by the copyright holder to protect copyright in his or her
work.
13. Deliberately deleting or modifying electronic
information in a work regarding management of the rights to such work.
14. Manufacturing, assembling, transforming, distributing,
importing, exporting, selling or leasing out equipment when knowing, or having
grounds to know, that such equipment may de-activate technical solutions
applied by the copyright holder to protect copyright in his or her work.
15. Making and selling a work with a forged signature of the
author of such work.
16. Importing, exporting or distributing copies of a work
without permission from the copyright holder.
Section 2. CONTENTS OF, LIMITATIONS
ON AND TERM OF PROTECTION OF RELATED RIGHTS
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1. Performers who are also the investors shall have the
moral rights and economic rights to their performances. Where performers are
not also the investors, the performers shall have the moral rights and the investors
shall have the economic rights to performances.
2. Moral rights shall comprise the following rights:
(a) To have the name acknowledged when performing,
when distributing audio and visual fixation or when broadcasting performances;
(b) To protect the integrity of the imagery of the
performance, and to prevent others from modifying, editing or distorting the
work in any way prejudicial to the honour and reputation of the performer.
3. Economic rights shall include the exclusive right to
exercise or to authorize others to exercise the following rights:
(a) To formulate a live performance on audio and
visual fixation;
(b) To directly or indirectly reproduce a performance
which has been formulated on audio and visual fixation;
(c) To broadcast or to communicate to the public in
other ways an unformulated performance so that it may be accessed by the
public, except where such performance is intended to be broadcast;
(d) To distribute to the public an original
performance and copies thereof by sale, rental or distribution by whatever
technical means which are accessible by the public.
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Article 30. Rights of producers of
audio and visual fixation
1. Producers of audio and visual fixation shall have the
exclusive right to exercise, or to authorize others to exercise, the following
rights:
(a) To directly or indirectly copy their audio and
visual fixation;
(b) To distribute to the public their original audio
and visual fixation and copies thereof by sale, rent or distribution by
whatever technical means which are accessible by the public.
2. Producers of audio and visual fixation shall be entitled
to material benefits when such recording is distributed to the public.
Article 31. Rights of broadcasting
organizations
1. Broadcasting organizations shall have the exclusive right
to exercise, or to authorize others to exercise, the following rights:
(a) To broadcast or re-broadcast their broadcasts;
(b) To distribute their broadcasts to the public;
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(d) To reproduce formulated broadcasts.
2. Broadcasting organizations shall be entitled to material
benefits when their broadcasts are recorded and distributed to the public.
Article 32. Cases when related
rights may be exercised without having to seek permission or pay royalties or
remuneration
1. Related rights may be exercised without having to seek
permission or pay royalties or remuneration in the following cases:
(a) Making one copy of a work for personal scientific
research purposes;
(b) Making one copy of a work for teaching purposes,
except for performances, audio and visual fixation or broadcasts which have
been published for teaching purposes;
(c) Reasonable quoting from a work in order to provide
information;
(d) Making of provisional copies of a work by a
broadcasting organization for broadcasting purposes when such organization has
the broadcasting right.
2. Organizations and individuals who use works stipulated in
clause 1 of this article must neither affect the normal use of performances,
audio and visual fixation or broadcasts; nor cause prejudice to the rights of
performers, producers of audio and visual fixation, or broadcasting
organizations.
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1. Organizations and individuals who exercise related rights
in the following cases shall not be required to seek permission but must pay
agreed royalties or remuneration to performers, producers of audio and visual
fixation, or to broadcasting organizations:
(a) They directly or indirectly use published audio
and visual fixation for commercial purposes in making broadcasts which are
sponsored, contain advertisements or which collect fees in any form;
(b) They use published audio and visual fixation in
business or commercial activities.
2. Organizations and individuals who use works stipulated in
clause 1 of this article must neither affect the normal use of performances,
audio and visual fixation or broadcasts; nor cause prejudice to the rights of
performers, producers of audio and visual fixation or broadcasting
organizations.
Article 34. Term of protection of
related rights
1. The rights of performers shall be protected for fifty
(50) years calculated from the year following the year of formulation [into a
fixed form] of a performance.
2. The rights of producers of audio and visual fixation
shall be protected for fifty (50) years calculated from the year following the
year of publication, or fifty (50) years calculated from the year following the
year of formulation of any unpublished audio and visual fixation.
3. The rights of broadcasting organizations shall be
protected for fifty (50) years calculated from the year following the year of
the making of a broadcast.
4. The terms of protection stipulated in clauses 1, 2 and 3
of this article shall expire at 24:00 hrs on 31 December of the year of
expiration of the term of protection of the related rights.
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1. Appropriating the rights of a performer, producer of
audio and visual fixation, or of a broadcasting organization.
2. Impersonating a performer, producer of audio and visual
fixation, or a broadcasting organization.
3. Publishing, producing and distributing a formulated
performance, audio and visual fixation or a broadcast without permission from
the performer, producer of the audio and visual fixation or from the
broadcasting organization.
4. Modifying, editing or distorting a performance in any way
which prejudices the honour and reputation of the performer.
5. Copying or reciting from a formulated performance, audio
and visual fixation or a broadcast without permission from the performer,
producer of the audio and visual fixation or from the broadcasting
organization.
6. Deliberately deleting or modifying electronic information
regarding management of rights without permission from the related right
holder.
7. Deliberately destroying or de-activating the technical
solutions applied by the related right holder to protect his or her rights.
8. Publishing, distributing or importing for public
distribution performances, copies of a fixed performance or audio and visual
fixation knowing, or having grounds to know, that electronic information
regarding management of rights has been deleted or modified without permission
from the related right holder.
9. Manufacturing, assembling, transforming, distributing,
importing, exporting, selling or leasing out equipment knowing, or having
grounds to know, that such equipment helps to illegally decode satellite
signals carrying coded programmes.
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Chapter III
COPYRIGHT HOLDERS, AND
RELATED RIGHTS HOLDERS
Article 36. Copyright holders
Copyright holder means an organization or individual who
holds one, several or all of the economic rights stipulated in article 20 of
this Law.
Article 37. Copyright holders being
authors
Authors who use their own time, finance and material or
technical facilities to create works shall have the moral rights stipulated in
article 19 and the economic rights stipulated in article 20 of this Law.
Article 38. Copyright holders being
co-authors
1. Co-authors who use their time, finance and material or
technical facilities to jointly create works shall share the rights to such
works stipulated in articles 19 and 20 of this Law.
2. A co-author as defined in clause 1 of this article who
has jointly created a work, a separate part of which is detachable for
independent use without prejudice to the parts of the work of the other co-
authors, shall have the rights to such separate part stipulated in articles 19
and 20 of this Law.
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1. Any organization which assigns the task of creating a
work to an author who belongs to such organization shall be the holder of the
rights stipulated in articles 19.3 and 20 of this Law, unless otherwise agreed.
2. Any organization or individual who enters into a contract
with an author for the creation of a work shall be the holder of the rights stipulated
in articles 19.3 and 20 of this Law, unless otherwise agreed.
Article 40. Copyright holders being
heirs
Any organization or individual who inherits copyright in
accordance with the law on inheritance shall be the holder of the rights
stipulated in articles 19.3 and 20 of this Law.
Article 41. Copyright holders being
assignees of rights
Any organization or individual who is contractually assigned
one, several or all of the rights stipulated in articles 19.3 and 20 of this
Law shall be the copyright holder.
Article 42. Copyright holders being
the State
1. The State shall be the holder of copyright in the
following works:
(a) Anonymous works;
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(c) Works for which the ownership right was assigned
to the State by the copyright holder.
2. The Government shall issue detailed regulations governing
the use of works under State ownership.
Article 43. Works belonging to the
public
1. Any work whose term of protection has expired pursuant to
article 27 of this Law shall belong to the public.
2. All organizations and individuals shall be entitled to
use the works stipulated in clause 1 of this article but must respect the moral
rights of authors stipulated in article 19 of this Law.
3. The Government shall issue detailed regulations governing
the use of works belonging to the public.
Article 44. Related right holders
1. Organizations and individuals who use their time and make
a financial investment in or use their material and technical facilities to
give a performance shall be the owners of such performance unless otherwise
agreed with the parties concerned.
2. Organizations and individuals who use their time and make
a financial investment in or use their material and technical facilities to
produce audio and visual fixation shall be the owners of such audio and visual
fixation unless otherwise agreed with the parties concerned.
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Chapter IV
TRANSFER OF COPYRIGHT
AND RELATED RIGHTS
Section 1. ASSIGNMENT OF COPYRIGHT
AND RELATED RIGHTS
Article 45. General provisions on
assignment of copyright and related rights
1. Assignment of copyright and related rights means the
transfer by copyright holders or related right holders of the ownership of the
rights stipulated in articles 19,3, 20, 29.3, 30 and 31 of this Law to other
organizations and individuals pursuant to a contract or in accordance with a
relevant provision of law.
2. Authors shall not be permitted to assign the moral rights
stipulated in article 19 of this Law, except for the right of publication.
Performers shall not be permitted to assign the moral rights stipulated in
article 29.2 of this Law.
3. Where a work, performance, audio and visual fixation or
broadcast is under joint ownership, the assignment thereof must be agreed upon
by all co-owners. In a case of joint ownership of a work, performance, audio
and visual fixation or broadcast which is composed of separate parts detachable
for independent use, copyright holders or related right holders may assign
their copyright or related rights in their separate parts to other
organizations or individuals.
Article 46. Contracts for the
assignment of copyright or related rights
1. A contract for the assignment of copyright or related
rights must be made in writing and include the following principal contents:
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(b) Grounds for the assignment;
(c) Price and method of payment;
(d) Rights and obligations of the parties;
(dd) Liability for contractual breach.
2. The performance, amendment, termination or cancellation
of a contract for the assignment of copyright or related rights must comply
with the provisions of the Civil Code.
Section 2. LICENSING OF COPYRIGHT
AND RELATED RIGHTS
Article 47. General provisions on
licensing of copyright and related rights
1. Licensing of copyright and related rights means the grant
of permission by the copyright holder or related right holder for another
organization or individual to use for a definite term one, several or all of
the rights stipulated in articles 19,3, 20, 29.3, 30 and 31 of this Law.
2. Authors shall not be permitted to license the moral
rights stipulated in article 19 of this Law, except
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3. Where a work, performance, audio and visual fixation or
broadcast is under joint ownership, the licensing of copyright or related
rights therein must be agreed upon by all co-owners. In a case of joint
ownership of a work, performance, audio and visual fixation or broadcast which
is composed of separate parts detachable for independent use, copyright holders
or related right holders may license their copyright or related rights in their
separate parts to other organizations or individuals.
4. Any organization or individual to whom copyright or
related rights are licensed shall be permitted to license other organizations
and individuals after obtaining permission from the copyright holder or related
right holder.
Article 48. Contracts for the
licensing of copyright or related rights
1. A contract for the licensing of copyright or related
rights must be made in writing and include the following principal contents:
(a) Full names and addresses of the licensor and the
licensee;
(b) Grounds for the licence;
(c) Scope of the licence;
(d) Price and method of payment;
(dd) Rights and obligations of the parties;
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2. The performance, amendment, termination or cancellation
of a contract for the licensing of copyright or related rights must comply with
the provisions of the Civil Code.
Chapter V
CERTIFICATES OF
REGISTERED COPYRIGHT AND RELATED RIGHTS
Article 49. Registration of
copyright and related rights
1. Registration of copyright and related rights means the
filing of an application with a file enclosed (hereinafter referred to as
application) by an author, copyright holder or related rights holder with the
competent State body in order to record information on the author, the work,
the copyright holder and the related rights holder.
2. The filing of an application for grant of a certificate
of registered copyright or a certificate of registered related rights shall not
be a compulsory pre-requisite for entitlement to copyright or related rights in
accordance with the provisions of this Law.
3. Organizations and individuals who are granted
certificates of registered copyright or certificates of registered related
rights shall not bear the burden of proving such copyright or related rights in
a dispute, unless contrary proof is tendered.
Article 50. Applications for
registration of copyright or related rights
1. Authors, copyright holders and related rights holders may
directly file, or may authorize other organizations or individuals to file,
applications for registration of copyright or related rights.
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(a) A declaration for registration of copyright or
related rights.
A declaration must be made in Vietnamese and signed by the
author, copyright holder, related rights holder or person authorized to file
the application; and must include complete information on the applicant,
author, copyright holder or related rights holder; the summarized content of
the work, performance, audio and visual fixation or broadcast; the name of the
author, and the title of the work used to make the derivative work if the work to
be registered is a derivative work; the date, place and form of publication;
and an undertaking accepting liability for the information set out in the
application.
The Ministry of Culture and Information shall regulate the
sample form of a declaration for registration of copyright or related rights.
(b) Two copies of the work the subject of the
application for copyright registration, or two copies of the formulated object
the subject of the application for related rights registration;
(c) A letter of authorization where the applicant is
an authorized person;
(d) Documents proving the right to file the
application where the applicant acquires such right by way of inheritance,
succession or assignment;
(dd) Written consent of the co-authors in the case of
a work under joint authorship;
(e) Written consent of the co-owners if the copyright
or related rights are jointly owned.
3. The documents stipulated in sub-clauses (c), (d), (dd)
and (e) of clause 2 of this article must be written in Vietnamese. Documents in
a foreign language must be translated into Vietnamese.
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1. The State administrative body for copyright and related
rights shall have the right to grant registered copyright certificates and
registered related rights certificates.
2. The State administrative body authorized to grant
registered copyright certificates and registered related rights certificates
shall have the right to re-grant, renew or cancel such certificates.
3. The Government shall issue regulations governing the
conditions, order and procedures for re- granting, renewal or cancellation of
registered copyright certificates and registered related rights certificates.
4. The Ministry of Culture and Information shall regulate
the sample forms of registered copyright certificates and registered related
rights certificates.
Article 52. Time-limit for granting
registered copyright certificates and registered related rights certificates
The State administrative body for copyright and related
rights shall be responsible to grant a registered copyright certificate or
registered related rights certificate to the applicant, or shall notify the
applicant in writing in a case of refusal to grant a certificate, within a
time-limit of fifteen (15) working days from the date of receipt of a valid
application.
Article 53. Validity of registered
copyright certificates and registered related rights certificates
1. Registered copyright certificates and registered related
rights certificates shall be valid throughout the entire territory of Vietnam.
2. Any registered copyright certificate or registered
related rights certificate which was granted by the State administrative body
for copyright and related rights before the effective date of this Law, shall
continue to be valid.
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1. Registered copyright certificates and registered related
rights certificates shall be officially recorded in the National Register of
Copyright and Related Rights.
2. Decisions on the grant, re-grant, renewal and
cancellation of effectiveness of registered copyright certificates and
registered related rights certificates shall be published in the Official
Gazette on copyright and related rights.
Article 55. Re-grant, renewal and
cancellation of effectiveness of registered copyright certificates and
registered related rights certificates
1. Where a registered copyright certificate or registered
related rights certificate is lost or damaged, or where the copyright holder or
related rights holder is changed, the competent State body stipulated in
article 51.2 of this Law shall conduct procedures for the re-grant or renewal
of such certificate.
2. Where the grantee of a registered copyright certificate
or registered related rights certificate is not the author, copyright holder or
related rights holder; or where the registered work, audio and visual fixation
or broadcast is ineligible for protection, the competent State body stipulated
in article 51.2 of this Law shall cancel the effectiveness of such certificate.
3. Any organization or individual who discovers that the
grant of a registered copyright certificate or registered related rights
certificate was contrary to law shall be entitled to request the State
administrative body for copyright and related rights to cancel the
effectiveness of such certificate.
Chapter VI
REPRESENTATION,
CONSULTANCY AND SERVICES REGARDING COPYRIGHT AND RELATED RIGHTS
Article 56. Organizations acting as
collective representatives of copyright or related rights
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2. An organization acting as the collective representative
of copyright or related rights may conduct the following activities pursuant to
authorization from authors, copyright holders or related right holders:
(a) Manage copyright or related rights; conduct
negotiations for licensing; and collect and distribute royalties, remuneration
and other material benefits from the permitted exercise of authorized rights;
(b) Protect the legitimate rights and interests of its
members; organize a conciliation if a dispute arises.
3. An organization acting as the collective representative
of copyright or related rights shall have the following rights and duties:
(a) To encourage creative and other social activities;
(b) To co-operate with counterparts in international
and national organizations on the protection of copyright and related rights;
(c) To make periodic and one-off reports to competent
State bodies on its collective representative activities;
(d) Other rights and duties stipulated by law.
Article 57. Consultancy and service
organizations regarding copyright and related rights
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2. A consultancy and service organizations regarding
copyright and related rights may conduct the following activities at the
request of authors, copyright holders and related right holders:
(a) Provide consultancy on issues related to the law
on copyright and related rights;
(b) Carry out, on behalf of and pursuant to
authorization from copyright holders and related right holders, procedures for
filing applications for registration of copyright and related rights;
(c) Participate pursuant to authorization in other
legal relationships on copyright, related rights and protection of legitimate
rights and interests of authors, copyright holders and related right holders.
PART III
INDUSTRIAL PROPERTY
RIGHTS
Chapter VII
CONDITIONS FOR
PROTECTION OF INDUSTRIAL PROPERTY RIGHTS
Section 1. CONDITIONS FOR PROTECTION
OF INVENTIONS
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1. An invention shall be eligible for protection in the form
of the grant of an invention patent when it satisfies the following conditions:
(a) It is novel;
(b) It is of an inventive nature;
(c) It is susceptible of industrial application.
2. Unless an invention is common knowledge, it shall be
protected in the form of the grant of a utility solution patent when it
satisfies the following conditions:
(a) It is novel;
(b) It is susceptible of industrial application.
Article 59. Objects ineligible for
protection as inventions
The following objects shall be ineligible for protection as
inventions:
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2. Schemes, plans, rules and methods for performing mental
acts, training domestic animals, playing games and doing business; computer
programs.
3. Presentations of information.
4. Solutions of aesthetic characteristics only.
5. Plant varieties, animal breeds.
7. Processes of plant or animal production which are
principally of a biological nature, other than microbiological processes.
8. Human and animal disease prevention methods, diagnostic
and treatment methods.
Article 60. Novelty of inventions
1. An invention shall be deemed novel if it has not yet been
publicly disclosed by use or by means of a written description or any other
form either inside or outside Vietnam before the filing date or the priority
date, as applicable, of the invention registration application.
2. An invention shall be deemed not yet publicly disclosed
if it is known to only a limited number of persons who are obliged to keep it
secret.
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(a) It is published by another person without
permission from the person having the right to register it as defined in
article 86 of this Law;
(b) It is published in the form of a scientific
presentation by the person having the right to register it as defined in
article 86 of this Law;
(c) It is displayed at a national exhibition of
Vietnam or at an official or officially recognized international exhibition by
the person having the right to register it as defined in article 86 of this
Law.
Article 61. Inventive nature of
inventions
An invention shall be deemed to be of an inventive nature
if, based on technical solutions already publicly disclosed by use or by means
of a written description or any other form either inside or outside Vietnam
prior to the filing date or the priority date as applicable of the application
for registration of the invention, the invention constitutes inventive progress
and cannot be easily created by a person with average knowledge in the art.
Article 62. Inventions which are
susceptible of industrial application
An invention shall be deemed to be susceptible of industrial
application if it is possible to realize mass manufacture or production of
products or repeated application of the process which is the subject matter of
the invention, and to achieve stable results.
Section 2. CONDITIONS FOR PROTECTION
OF INDUSTRIAL DESIGNS
Article 63. General conditions for
industrial designs to be eligible for protection
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(a) It is novel;
(b) It is of a creative nature;
(c) It is susceptible of industrial application.
Article 64. Objects ineligible for
protection as industrial designs
The following items shall be ineligible for protection as
industrial designs:
1. Outward appearance of a product which is necessarily due
to the technical features of the product.
2. Outward appearance of civil or industrial construction
works.
3. Shape of a product which is invisible during the use of
the product.
Article 65. Novelty of industrial
designs
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2. Two industrial designs shall not be deemed to be
significantly different from each other if they are only different in features
of appearance which are not easily noticeable and memorable and which cannot be
used to distinguish such industrial designs overall.
3. An industrial design shall be deemed not yet publicly
disclosed if it is known to only a limited number of persons who are obliged to
keep it secret.
4. An industrial design shall be deemed not to have lost its
novelty if it is published in the following cases, provided that the
application for registration of the industrial design is filed within six (6)
months from the date of publication:
(a) It is published by another person without
permission from the person having the right to register it as defined in
article 86 of this Law;
(b) It is published in the form of a scientific
presentation by the person having the right to register it as defined in
article 86 of this Law;
(c) It is displayed at a national exhibition of
Vietnam or at an official or officially recognized international exhibition by
the person having the right to register it as defined in article 86 of this
Law.
Article 66. Creativity of industrial
designs
An industrial design shall be deemed to be creative if,
based on industrial designs already publicly disclosed through use or by means
of written descriptions or in any other form either inside or outside Vietnam
before the filing date or the priority date, as applicable, of the application
for registration of the industrial design, the industrial design cannot be
easily created by a person with average knowledge in the art.
Article 67. Industrial designs which
are susceptible of industrial application
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Section 3. CONDITIONS FOR PROTECTION
OF LAYOUT DESIGNS
Article 68 General conditions for
layout designs to be eligible for protection
A layout design shall be eligible for protection when it
satisfies the following conditions:
1. It is original.
2. It is commercially novel.
Article 69. Objects ineligible for
protection as layout designs
The following items shall be ineligible for protection as
layout designs:
1. Principles, processes, systems and methods operated by
semiconductor integrated circuits.
2. Information or software contained in semiconductor
integrated circuits.
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1. A layout design shall be deemed to be original if it
satisfies the following conditions:
(a) It is the result of its author's creative labour;
(b) It was not widely known among creators of layout
designs or manufacturers of semi- conducting closed circuits at the time of its
creation.
2. A layout design which is a combination of elements and
common interconnections shall be deemed to be original only if such combination,
taken overall, is original pursuant to the provisions of clause 1 of this
article.
Article 71. Commercial novelty of
layout designs
1. A layout design shall be deemed to be commercially novel
if it has not yet been commercially exploited anywhere in the world prior to
the filing date of the application for registration.
2. A layout design shall not be deemed to have lost its
commercial novelty if the application for registration of the layout design is
filed within two years from the date it was commercially exploited for the
first time anywhere in the world by the person who has the right to register it
as defined in article 86 of this Law or by his or her licensee.
3. Commercial exploitation of a layout design as stipulated
in clause 2 of this article means any act of public distribution for commercial
purposes of a semiconductor integrated circuit produced by incorporation of
such layout design, or of a commodity containing such semiconductor integrated
circuit.
Section 4. CONDITIONS FOR PROTECTION
OF MARKS
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A mark shall be eligible for protection when it satisfies
the following conditions:
1. It is a visible sign in the form of letters, words,
drawings or images including holograms, or a combination thereof, represented
in one or more colours.
2. It is capable of distinguishing goods or services of the
mark owner from those of other subjects.
Article 73. Signs ineligible for
protection as marks
The following signs shall be ineligible for protection as
marks:
1. Signs identical with or confusingly similar to national
flags or national emblems.
2. Signs identical with or confusingly similar to emblems,
flags, armorial bearings, abbreviated names or full names of Vietnamese State
bodies, political organizations, socio-political organizations, socio-
politico-professional organizations, social organizations or socio-professional
organizations or with international organizations, unless permitted by such
bodies or organizations.
3. Signs identical with or confusingly similar to real
names, aliases, pseudonyms or images of leaders, national heroes or famous
personalities of Vietnam or foreign countries.
4. Signs identical with or confusingly similar to certification
seals, check seals or warranty seals of international organizations which
require that their signs must not be used, unless such seals are registered as
certification marks by such organizations.
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Article 74. Distinctiveness of marks
1. A mark shall be deemed to be distinctive if it consists
of one or more easily noticeable and memorable elements, or of many elements
forming an easily noticeable and memorable combination, and does not fall into
the cases stipulated in clause 2 of this article.
2. A mark shall be deemed to be indistinctive if it is a
sign falling into one of the following categories:
(a) Simple shapes and geometric figures, numerals,
letters or scripts of uncommon languages, except where such sign has been
widely used and recognized as a mark;
(b) Conventional signs or symbols, pictures or common
names in any language of goods or services that have been widely and regularly
used and known to many people;
(c) Signs indicating time, place and method of
production; category, quantity, quality, properties, ingredients, use, value or
other characteristics descriptive of goods or services, except where such sign
has acquired distinctiveness by use before the filing of the application for
registration of the mark;
(d) Signs describing the legal status and business
sector of business entities;
(dd) Signs indicating the geographical origin of goods
or services, except where such sign has been widely used and recognized as a
mark or registered as a collective mark or certification mark as stipulated in
this Law;
(e) Signs other than integrated marks which are
identical with or confusingly similar to registered marks of identical or
similar goods or services on the basis of applications for registration with
earlier filing dates or priority dates, as applicable, including applications for
registration of marks filed pursuant to a treaty of which the Socialist
Republic of Vietnam is a member;
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(h) Signs identical with or confusingly similar to
another person's mark which has been registered for identical or similar goods
or services, the registration certificate of which has been invalidated for no
more than five years, except where the ground for such invalidation was non-use
of the mark pursuant to sub-clause (d) of article 95.1 of this Law;
(i) Signs identical with or confusingly similar to
another person's mark recognized as a well known mark which has been registered
for goods or services which are identical with or similar to those bearing such
well known mark, or for dissimilar goods or services if the use of such mark
may affect the distinctiveness of the well known mark or the mark registration
was aimed at taking advantage of the reputation of the well known mark;
(k) Signs identical with or similar to another
person's trade name currently in use if the use of such sign may cause
confusion to consumers as to the origin of goods or services;
(l) Signs identical with or similar to a protected
geographical indication if the use of such sign may mislead consumers as to the
geographical origin of goods;
(m) Signs identical with, containing or being
translated or transcribed from protected geographical indications for wines or
spirits if such sign has been registered for use with respect to wines and
spirits not originating from the geographical areas bearing such geographical
indications;
(n) Signs identical with or insignificantly different
from another person's industrial design which has been protected on the basis
of an application for registration of an industrial design with a filing date
or priority date earlier than that of the application for registration of the mark.
Article 75. Criteria for evaluation
of whether or not a mark is well known
The following criteria shall be taken into account when
considering whether or not a mark is well known:
1. The number of relevant consumers who were aware of the
mark by purchase or use of goods or services bearing the mark, or from
advertising.
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3. Turnover of the sale of goods or provision of services
bearing the mark or the quantity of goods sold or services provided.
4. Duration of continuous use of the mark.
5. Wide reputation of goods or services bearing the mark.
6. Number of countries protecting the mark.
7. Number of countries recognizing the mark as a well known
mark.
8. Assignment price, licensing price, or investment capital
contribution value of the mark.
Section 5. CONDITIONS FOR PROTECTION
OF TRADE NAMES
Article 76. General conditions for
trade names to be eligible for protection
A trade name shall be protected when it is capable of
distinguishing the business entity bearing it from other business entities
operating in the same business sector and locality.
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Names of State bodies, political organizations, socio-political
organizations, socio-politico-professional organizations, social organizations,
socio-professional organizations and other entities not involved in business
activities shall not be protected as trade names.
Article 78. Distinctiveness of trade
names
A trade name shall be deemed to be distinctive when it
satisfies the following conditions:
1. It consists of a proper name, except where the proper
name was widely known by use.
2. It is not identical with or confusingly similar to a
trade name which was used earlier by another person in the same business sector
and locality.
3. It is not identical with or confusingly similar to
another person's mark or a geographical indication which was protected before
the date of use of such trade name.
Section 6. CONDITIONS FOR PROTECTION
OF GEOGRAPHICAL INDICATIONS
Article 79. General conditions for
geographical indications to be eligible for protection
A geographical indication shall be eligible for protection
when it satisfies the following conditions:
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2. The product bearing the geographical indication has a
reputation, quality or characteristics mainly attributable to geographical
conditions of the area, locality, territory or country corresponding to such
geographical indication.
Article 80. Objects ineligible for
protection as geographical indications
The following objects shall be ineligible for protection as
geographical indications:
1. Names or indications which have become generic names of
goods in Vietnam.
2. Geographical indications of foreign countries where they
are not, or no longer, protected or used.
3. Geographical indications identical with or similar to a
protected mark, where the use of such geographical indication is likely to
cause confusion as to the origin of products.
4. Geographical indications which mislead consumers as to
the true geographical origin of products bearing such geographical indications.
Article 81. Reputation, quality and
characteristics of products bearing geographical indications
1. Reputation of products bearing a geographical indication
shall be determined on the basis of the trust of consumers in such products to
the extent such products are widely known to and selected by consumers.
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Article 82. Geographical conditions
relevant to geographical indications
1. Geographical conditions relevant to a geographical
indication means natural and human factors decisive to reputation, quality and
characteristics of products bearing such geographical indication.
2. Natural factors shall include climatic, hydrological,
geological, topographical and ecological factors and other natural conditions.
3. Human factors shall include skills and expertise of
producers, and traditional production processes of localities.
Article 83. Geographical areas
bearing geographical indications
Geographical areas bearing geographical indications must
have their boundaries accurately determined by words and by maps.
Section 7. CONDITIONS FOR PROTECTION
OF TRADE SECRETS
Article 84. General conditions for
trade secrets to be eligible for protection
A trade secret shall be eligible for protection when it
satisfies the following conditions:
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2. When used in business activities, the trade secret will
create for its holder advantages over those who do not hold or use it.
3. The owner of the trade secret maintains its secrecy by
necessary means so that the secret will not be disclosed nor be easily
accessible.
Article 85. Objects ineligible for
protection as trade secrets
The following confidential information shall be ineligible
for protection as trade secrets:
1. Personal identification secrets.
2. State management secrets.
3. National defence and security secrets.
4. Other confidential information unrelated to business.
Chapter VIII
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Section 1. REGISTRATION OF
INVENTIONS, INDUSTRIAL DESIGNS, LAYOUT DESIGNS, MARKS AND GEOGRAPHICAL
INDICATIONS
Article 86. Right to register
inventions, industrial designs and layout designs
1. The following organizations and individuals shall have
the right to register inventions, industrial designs and layout designs:
(a) Authors who have created inventions, industrial
designs or layout designs by their own labour and at their own expense;
(b) Organizations or individuals who have supplied
funds and material facilities to authors in the form of job assignment or
hiring, unless otherwise agreed by the parties involved and provided that such
agreements are not contrary to the provisions of clause 2 of this article.
2. The Government shall provide regulations on the right to
register inventions, industrial designs and layout designs created by using
material and technical facilities and funds from the State Budget.
3. Where a number of organizations and individuals have
jointly created or invested in the creation of an invention, industrial design
or layout design, such organizations and individuals shall all have the
registration right which may only be exercised with the consensus of all.
4. A person who has the registration right as stipulated in
this article may assign such right to other organizations or individuals by a
written contract, bequest or inheritance in accordance with law, even where a
registration application has already been filed.
Article 87. Right to register marks
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2. Any organization or individual lawfully engaged in
commercial activities shall have the right to register a mark for a product
which the latter puts onto the market but which was manufactured by others,
provided that the manufacturer does not use such mark for a product and does
not object to such registration.
3. Lawfully established collective organizations shall have
the right to register collective marks to be used by the members of the
collective organization pursuant to the regulations of the collective
organization on use of collective marks. For signs indicating geographical
origins of goods or services, an organization with the right to register means
a local collective organization of [other] organizations or individuals engaged
in production or trading in the relevant locality.
4. Organizations with the function of controlling and
certifying quality, properties, origin or other relevant criteria of goods or
services shall have the right to register certification marks, provided that
such organizations are not engaged in production or trading of such goods or
services.
5. Two or more organizations or individuals shall have the
right to jointly register a mark in order to become its co-owners on the
following conditions:
(a) Such mark is used in the names of all co-owners or
used for goods or services which are produced or traded with the participation
of all co-owners;
(b) The use of such mark does not cause confusion to
consumers as to the origin of goods or services.
6. Persons with the registration right stipulated in clauses
1, 2, 3, 4 and 5 of this article, including those who have already filed
registration applications, may assign the registration right to other
organizations or individuals by a written contract, bequest or inheritance in accordance
with law, provided that the assignee satisfies the conditions applicable to
persons with the registration right.
7. For a mark protected in a country being a contracting
party to a treaty of which the Socialist Republic of Vietnam is a member, which
treaty prohibits the representative or agent of a mark owner from registering
such mark, the representative or agent shall not be permitted to register such
mark without agreement from the mark owner unless there is a justifiable
reason.
Article 88. Right to register
geographical indications
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The State shall permit organizations and individuals
producing products bearing geographical indications, collective organizations
representing such organizations or individuals, and administrative bodies of
localities to which such geographical indications pertain, to exercise the
right to register geographical indications. Persons who exercise the right to
register geographical indications shall not become owners of such geographical
indications.
Article 89. Methods of filing an
application for registration of establishment of industrial property rights
1. Vietnamese organizations and individuals, foreign
individuals permanently residing in Vietnam, and foreign organizations and
individuals having production or business establishments in Vietnam shall file
applications for registration of establishment of industrial property rights
either directly or through their lawful representatives in Vietnam.
2. Foreign individuals not permanently residing in Vietnam
and foreign organizations and individuals without production or business
establishments in Vietnam shall file applications for registration of
establishment of industrial property rights through their lawful
representatives in Vietnam.
Article 90. "First to
file" principle
1. Where two or more applications for registration are filed
by different parties for the same invention, for registration of industrial
designs identical with or insignificantly different from each other, for
registration of marks identical with or confusingly similar to each other, or
for identical or similar goods or services, a protection title may only be granted
to the valid application with the earliest priority or filing date amongst
applications which satisfy all conditions for the grant of a protection title.
2. Where there are two or more applications satisfying all
the conditions for the grant of a protection title and having the same earliest
priority or filing date, a protection title may only be granted to a single
application from such applications with agreement from all applicants. Without
such an agreement, all such applications shall be refused the grant of a
protection title.
Article 91. Priority principle
1. An applicant for registration of an invention, industrial
design or mark may claim priority on the basis of the first application for
registration of protection of the subject matter if the following conditions
are fully satisfied:
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(b) The applicant is a citizen of Vietnam or of a
country defined in sub-clause (a) of this clause, who resides or has a
production or business establishment in Vietnam or in a country defined in
sub-clause (a) of this clause;
(c) The claim for the priority right is clearly stated
in the application and a copy of the first application certified by the
receiving office is enclosed;
(d) The application is filed within the time-limit
provided for in a treaty of which Vietnam is a member.
2. In an application for registration of an invention,
industrial design or mark, the applicant may claim the priority right on the
basis of different earlier filed applications, provided that the similarity
between the contents of such earlier applications and the present application
are indicated.
3. An application for registration of industrial property
which enjoys priority right shall bear the priority date being the filing date
of the first application.
Article 92. Protection titles
1. A protection title shall recognize the owner of the
invention, industrial design, layout design or mark (hereinafter all referred
to as protection title owners); the author of the invention, industrial design
or layout design; and the subject matter, scope and term of protection.
2. A protection title of a geographical indication shall
record the organization managing such geographical indication, the organization
or individual having the right to use such geographical indication, the
protected geographical indication, the particular characteristics of products
bearing such geographical indication, and the particular characteristics of
geographical conditions and geographical areas bearing such geographical
indication.
3. Protections title shall include an invention patent,
utility solution patent, industrial design patent, certificate of registered
design of semi-conducting closed circuits, certificate of registered mark and
certificate of registered geographical indication.
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1. Protection titles shall be valid throughout the entire
territory of Vietnam.
2. An invention patent shall be valid from the grant date
until the end of twenty (20) years after the filing date.
3. A utility solution patent shall be valid from the grant
date until the end of ten (10) years after the filing date.
4. An industrial design patent shall be valid from the grant
date until the end of five (5) years after the filing date and may be renewed
for two consecutive terms, each of five (5) years.
5. A certificate of registered design of semi-conducting
closed circuits shall be valid from the grant date until the earliest date
among the following:
(a) The end of ten (10) years after the filing date;
(b) The end of ten (10) years after the date the
layout design was first commercially exploited anywhere in the world by a
persons with the registration right or his or her licensee;
(c) The end of fifteen (15) years after the date of
creation of the layout design.
6. A certificate of registered mark shall be valid from the
grant date until the end of ten (10) years after the filing date and may be
renewed for many consecutive terms, each of ten (10) years.
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Article 94. Maintenance and
extension of validity of protection titles
1. In order to maintain the validity of an invention patent
or a utility solution patent, the owner must pay a validity maintenance fee.
2. In order to have the validity of an industrial design
patent or a certificate of registered mark extended, the owner must pay a
validity extension fee.
3. Fee rates and procedures for maintaining or extending
validity of protection titles shall be stipulated by the Government.
Article 95. Termination of validity
of protection titles
1. The validity of a protection title shall be terminated in
the following cases:
(a) The owner fails to pay the stipulated validity
maintenance or extension fee;
(b) The owner declares relinquishment of the
industrial property rights;
(c) The owner no longer exists, or the owner of a
certificate of registered mark is no longer engaged in business activities and
does not have a lawful heir;
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(dd) The owner of a certificate of registered
collective mark fails to supervise or ineffectively supervises the
implementation of the regulations on use of the collective mark;
(e) The owner of a certificate of registered
certification mark violates the regulations on use of the certification mark or
fails to supervise or ineffectively supervises the implementation of such
regulations;
(g) The geographical conditions decisive to
reputation, quality or special characteristics of products bearing a geographical
indication have changed resulting in the loss of such reputation, quality or
characteristics of products.
2. Where the owner of an invention protection title fails to
pay the validity maintenance fee before the stipulated time-limit, the validity
of such protection title shall, upon the expiration of such time-limit,
automatically terminate as from the first day of the first valid year for which
the validity maintenance fee has not been paid. The State administrative body
for industrial property rights shall record such termination in the National
Register of Industrial Property and publish it in the Official Gazette of
Industrial Property.
3. Where the owner of a protection title declares
relinquishment of the industrial property right as stipulated in sub-clause (b)
of clause 1 of this article, the State administrative body for industrial
property rights shall decide to terminate the validity of such protection title
from the date of receipt of the owner's declaration.
4. Organizations and individuals shall have the right to
request the State administrative body for industrial property rights to
terminate the validity of protection titles in cases specified in sub-clauses
(c), (d), (dd), (e) and (g) of clause 1 of this article, provided that such
organization or individual pays fees and charges. Based on the result of the
examination of a request for termination of validity of a protection title and
the opinions of the parties involved, the State administrative body for
industrial property rights shall issue a decision on termination of validity of
a protection title or notify refusal to terminate the validity of the
protection title.
5. The provisions of clauses 1, 3 and 4 of this article
shall also apply to the termination of validity of international registrations
of marks.
Article 96. Cancellation of
effectiveness of protection titles
1. A protection title shall be entirely invalidated in the
following cases:
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(b) The industrial property object failed to satisfy
the protection conditions at the time the protection title was granted.
2. A protection title shall be partly invalidated as to the
part which failed to satisfy the protection conditions.
3. Any organization or individual may request the State administrative
body for industrial property rights to invalidate a protection title in the
cases specified in clauses 1 and 2 of this article, provided that such
applicant pays fees and charges. The statute of limitations for exercising the
right to request invalidation of a protection title shall be the whole term of
protection of the protection title. For marks, such statute of limitations
shall be five (5) years from the grant date, except where the protection title
was granted as a result of dishonesty of the applicant.
4. Based on the result of the examination of a request for
invalidation of a protection title and the opinions of the parties involved,
the State administrative body for industrial property rights shall issue a
decision on entire or partial invalidation of the protection title or shall
notify refusal to invalidate.
5. The provisions of clauses 1, 2, 3 and 4 of this article
shall also apply to the invalidation of international registrations of marks.
Article 97. Amendments to protection
titles
1. The owner of a protection title may request the State
administrative body for industrial property rights to make amendments to the
following information in such protection title, provided that the prescribed
fees and charge are paid:
(a) Changes of, and corrections of errors to the name
and address of the author or the protection title owner;
(b) Amendments to the description of particular
characteristics, quality or geographical area bearing a geographical
indication; amendments to the regulations on use of collective marks or the
regulations on use of a certification mark.
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3. The owner of a protection title may request the State
administrative body for industrial property rights to narrow the scope of
industrial property rights. In such a case, the corresponding industrial
property registration application shall be substantively re-examined and the
requesting party shall pay a fee for substantive examination.
Article 98. National Register of
Industrial Property
1. The National Register of Industrial Property means the
document recording the establishment, change and transfer of industrial
property rights to inventions, industrial designs, layout designs, marks and
geographical indications pursuant to this Law.
2. Decisions on grant of protection titles, principal
contents of protection titles and decisions on amendment to, termination of
validity or cancellation of validity of protection titles, and decisions on
registration of industrial property right transfer contracts shall all be recorded
in the National Register of Industrial Property.
3. The National Register of Industrial Property shall be
compiled and kept by the State administrative body for industrial property
rights.
Article 99. Publication of decisions
relating to protection titles
Decisions on the grant, termination of validity,
cancellation of validity or amendment of protection titles for industrial
property rights shall be published by the State administrative body for
industrial property rights in the Official Gazette of Industrial Property
within sixty (60) days as from the date of issuance of such decision.
Section 2. APPLICATIONS FOR
REGISTRATION OF INDUSTRIAL PROPERTY
Article 100. General requirements
applicable to applications for registration of industrial property
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(a) Declaration for registration, made on the
stipulated form;
(b) Documents, samples and information identifying the
industrial property object registered for protection as specified in articles
102 to 106 inclusive of this Law;
(c) Power of attorney, if the application is filed
through a representative;
(d) Documents evidencing the registration right, if
such right is acquired by the applicant from another person;
(dd) Documents evidencing the priority right, if such
right is claimed;
(e) Receipt for payment of fees and charges.
2. Industrial property registration applications and source
documents of transactions between an applicant and the State administrative
body for industrial property rights shall be made in Vietnamese, except for the
following documents which may be made in another language but shall be
translated into Vietnamese at the request of the State administrative body for
industrial property rights:
(a) Power of attorney;
(b) Documents evidencing the registration right;
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(d) Other documents supporting the application.
3. Documents evidencing the priority right in an industrial
property registration application shall include:
(a) A copy of the first application(s) certified by
the receiving office;
(b) Deed of assignment of priority right if such right
is acquired from another person.
Article 101. Requirements on the
uniformity of an application for registration of industrial property
1. Each industrial property registration application shall
request the grant of only one protection title for a single industrial property
object, except for the cases specified in clauses 2, 3 and 4 of this article.
2. Each registration application may request the grant of
one invention patent or one utility solution patent for a group of inventions
that are technically linked to form a single common inventive idea.
3. Each registration application may request the grant of
one industrial design patent for several industrial designs in the following
cases:
(a) Industrial designs of a set of products consisting
of numerous items expressing a single common inventive idea and used together
or for a common purpose;
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4. Each registration application may request the grant of
one certificate of registered mark for one mark to be used for one or more
different goods or services.
Article 102. Requirements on
applications for registration of inventions
1. Documents identifying an invention registered for
protection in an application for invention registration shall include a
description of the invention and an abstract of the invention. The invention
description shall contain a descriptive section and the scope of protection of
the invention.
2. The description of an invention must satisfy the
following conditions:
(a) Fully and clearly disclose the nature of the
invention to the extent that such invention may be realized by a person with
average knowledge in the art;
(b) Briefly explain accompanying drawings, if it is
required to further clarify the nature of the invention;
(c) Clarify the novelty, inventive step and
susceptibility of industrial application of the invention.
3. The scope of protection of an invention shall be
expressed in the form of a combination of technical specifications which are
necessary and sufficient to identify the scope of the rights to such invention,
compatible with the description of invention and drawings.
4. An abstract of an invention must disclose principal
features of the nature of such invention.
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1. Documents identifying an industrial design which needs to
be protected in an application for registration of an industrial design shall
include a description and a set of photos or drawings of such industrial
design. The industrial design description shall consist of a descriptive
section and a section on scope of protection of such industrial design.
2. The descriptive section of an industrial design must
satisfy the following conditions:
(a) Fully disclose all features expressing the nature
of the industrial design and clearly identify features which are new, different
from the least different known industrial design, and consistent with the set
of photos or drawings;
(b) Where the application for registration of the
industrial design consists of variants, the descriptive section must fully show
these variants and clearly identify distinctions between the principal variant
and other variants;
(c) Where the industrial design stated in the
registration application is that of a set of products, the descriptive section
must fully show features of each product of the set.
3. The section on scope of protection of an industrial
design must clearly define features which need to be protected, including
features which are new and different from similar known industrial designs.
4. The set of photos and drawings must fully define the
features of the industrial design.
Article 104. Requirements on
applications for registration of layout designs
Documents, samples and information identifying a layout
design which needs to be registered for protection in an application for
registration of a layout design shall include:
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2. Information on the functions and structure of
semi-conducting closed circuits produced under the layout design.
3. Samples of semi-conducting closed circuits produced under
the layout design, if such layout design has been commercially exploited.
Article 105. Requirements on
applications for registration of marks
1. Documents, samples and information identifying a mark
which needs to be registered for protection in an application for registration
of a mark shall include:
(a) A sample of the mark and a list of goods or
services bearing the mark;
(b) Regulations on use of collective marks or
regulations on use of certification marks.
2. The sample of the mark must be described in order to
clarify elements of the mark and the comprehensive meaning of the mark, if any;
where the mark consists of words or phrases of hieroglyphic languages, such
words or phrases must be transcribed; where the mark consists of words or
phrases in a foreign language, such words or phrases must be translated into
Vietnamese.
3. Goods or services listed in an application for
registration of a mark must be classified into appropriate groups in accordance
with the Classification List under the Nice Agreement on International
Classification of Goods and Services for the purpose of mark registration, and
published by the State administrative body for industrial property rights.
4. The regulations on use of collective marks shall contain
the following principal contents:
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(b) Criteria for becoming a member of the collective
organization;
(c) List of organizations and individuals permitted to
use the mark;
(d) Conditions for use of the mark;
(dd) Measures for dealing with breaches of regulations
on use of the mark.
5. The regulations on use of certification marks shall
contain the following principal contents:
(a) The organization or individual being the mark
owner;
(b) Conditions for using the mark;
(c) Characteristics of goods or services certified by
the mark;
(d) Methods of evaluating characteristics of goods or
services and methods of controlling the use
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(dd) Expenses to be paid by the mark user for
certification and protection of the mark, if any.
Article 106. Requirements on
applications for registration of geographical indications
1. Documents, samples and information identifying a
geographical indication which needs to be registered for protection in an
application for registration of a geographical indication shall include:
(a) The name or sign being the geographical
indication;
(b) The product bearing the geographical indication;
(c) Description of peculiar characteristics and
quality, or reputation of the product bearing the geographical indication and
particular elements of natural conditions decisive to the peculiar
characteristics and quality, or reputation of the product (hereinafter referred
to as the description of peculiar characteristics);
(d) Map of the geographical area bearing the
geographical indication;
(dd) Documents evidencing that the geographical
indication is under protection in the country of origin in the case of a
foreign geographical origin.
2. The description of peculiar characteristics must contain
the following principal contents:
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(b) Method of identification of the geographical area
bearing the geographical indication;
(c) Evidence proving that the product originates from
such geographical area within the meaning stipulated in article 79 of this Law;
(d) Description of local and stable methods of
production and processing;
(dd) Information on relationship between the peculiar
characteristics and quality, or reputation of the product and the geographical
conditions as stipulated in article 79 of this Law;
(e) Information on the mechanism of self-control of
the peculiar characteristics or quality of the product.
Article 107 Authorized
representation in procedures related to industrial property rights
1. Authorization for carrying out procedures related to the
establishment, maintenance, extension, amendment, termination and invalidation
of protection titles must be made in writing in the form of a power of
attorney.
2. A power of attorney must contain the following principal
contents:
(a) Full name and address of the principal and of the
attorney;
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(c) Valid term of authorization;
(d) Date of making the power of attorney;
(dd) Signature and seal (if any) of the principal.
3. A power of attorney without any valid term shall be
considered valid indefinitely, and validity shall be terminated only when the
principal declares termination of validity.
Section 3. PROCEDURES FOR PROCESSING
APPLICATIONS FOR REGISTRATION OF INDUSTRIAL PROPERTY AND FOR GRANTING
PROTECTION TITLES
Article 108. Receipt of applications
for registration of industrial property, and filing dates
1. An application for registration of industrial property
shall only be received by the competent State administrative body for
industrial property rights if the application consists of at least the
following documents and information:
(a) A declaration for registration of an invention,
industrial design, layout design, mark or geographical indication, which
includes sufficient information to identify the applicant and in the case of a
mark a sample of the mark and a list of goods or services bearing the mark;
(b) Description, including the scope of protection, in
the case of an application for registration of an invention; a set of photos
and drawings and a description in the case of an application for registration
of an industrial design; and a description of peculiar characteristics of a
product bearing a geographical indication, in the case of an application for
registration of a geographical indication;
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2. The filing date shall be the date on which the
application is received by the competent State administrative body for
industrial property rights, or the international filing date in the case of an
application filed pursuant to an international treaty.
Article 109. Formal
examination of applications for registration of industrial property
1. Applications for registration of industrial property
shall be subject to formal examination for evaluation of their validity.
2. An application for registration of industrial property
shall be considered invalid in the following cases:
(a) It does not fulfil the formal requirements;
(b) The subject matter stated in the application is
ineligible for protection;
(c) The applicant does not have the registration
right, including where the registration right belongs to more than one
organization or individual but one or more of them do not agree to the filing;
(d) The application is filed in contravention of
regulations on the filing method stipulated in article 89 of this Law;
(dd) The applicant fails to pay fees and charges.
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(a) Issue a notice of intended refusal to accept the
invalid application, clearly stating reasons and setting a time-limit for the
applicant to correct errors or to object to such intended refusal;
(b) Issue a notice of refusal to accept the invalid
application if the applicant fails to correct errors, improperly corrects
errors or fails to make a justifiable objection to such intended refusal
stipulated in sub-clause (a) of this clause;
(c) Issue a notice of refusal to grant a certificate
of registered design of semi-conducting closed circuits in case of a closed
circuit registration application;
(d) Carry out procedures specified in clause 4 of this
article if the applicant properly corrects errors or makes a justifiable
objection to the intended refusal to accept the invalid application stipulated
in sub-clause (a) of this clause.
4. For industrial property registration applications not
falling into a case stipulated in clause 2 of this article, or in a case
stipulated in sub-clause (d) of clause 3 of this article, the State
administrative body for industrial property rights shall issue a notice of
acceptance of the valid application or carry out procedures for granting a
protection title and recording it in the National Register of Industrial
Property as stipulated for in article 118 of this Law, applicable to layout
design registration applications.
5. Mark registration applications rejected according to the
provisions of clause 3 of this article shall be deemed not to have been filed,
except where they serve as grounds for claims for priority right.
Article 110. Publication of
applications for registration of industrial property
1. Applications for registration of industrial property which
have been accepted as being valid by the State administrative body for
industrial property rights shall be published in the Official Gazette of
Industrial Property in accordance with the provisions of this article.
2. Applications for registration of inventions shall be
published in the 19th month as from the filing date or the priority date, as
applicable, or at an earlier time at the request of the applicant.
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4. Applications for registration of layout designs shall be
published by mode of permitting direct access at the competent State
administrative body for industrial property rights, provided that reproduction
shall not be permitted. Access to confidential information in an application
shall only be permitted to competent authorities and parties involved in the
process of carrying out procedures for invalidating protection titles or the
process of carrying out procedures for dealing with infringement of rights.
Principal information on an application for registration of a layout design and
the protection title for a layout design shall be published within two months as
from the date of grant of such protection title.
Article 111. Confidentiality of
applications for registration of inventions and industrial designs prior to
publication thereof
1. Before applications for registration of inventions and
industrial designs are published in the Official Gazette of Industrial
Property, the State administrative body for industrial property rights must
keep information therein confidential.
2. State employees of the State administrative body for
industrial property rights who disclose information in applications for
registration of inventions and industrial designs shall be disciplined; if the
information disclosed causes loss and damage to applicants, such employees must
pay compensation therefor in accordance with law.
Article 112. Third party opinions on
the grant of protection titles
As from the date an application for registration of
industrial property is published in the Official Gazette of Industrial Property
up until prior to the date of issuance of a decision on grant of a protection
title, any third party shall have the right to express an opinion to the
competent State administrative body for industrial property rights on the grant
or refusal to grant a protection title for such application. Such opinions must
be made in writing and be accompanied by documents or must quote the source of
information.
Article 113. Request for substantive
examination of applications for registration of inventions
1. Within forty two (42) months after the filing date or the
priority date, as applicable, an applicant or any third party may request the
competent State administrative body for industrial property rights to
substantively examine an application [for registration of an invention],
provided that the substantive examination fee is paid.
2. The time-limit for making a request for substantive
examination of an application for registration of an invention involving a
request for a utility solution patent shall be thirty six (36) months from the
filing date or the priority date, as applicable.
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Article 114. Substantive examination
of applications for registration of industrial property
1. The following applications for registration of industrial
property shall be substantively examined for evaluation of the eligibility for
grant of protection titles for subject matter stated in such applications under
protection conditions and for determination of the respective scope of
protection:
(a) Applications for registration of inventions which
have already been accepted as being valid and involve requests for substantive
examination filed according to regulations;
(b) Applications for registration of industrial
designs, marks and geographical indications which have been accepted as being
valid.
2. Applications for registration of layout designs shall not
be substantively examined.
Article 115. Amendment,
supplementation, division and conversion of applications for registration of
industrial property
1. An applicant shall have the following rights before the
competent State administrative body for industrial property rights notifies a
refusal or decides to grant a protection title:
(a) To amend or supplement the application;
(b) To divide the application;
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(d) To request the recording of change of the
applicant as a result of application transfer under a contract, bequest or
inheritance, or under a decision of a competent agency;
(dd) To convert an application for registration of an invention
involving a request for an invention patent into an application for
registration of an invention involving a request for a utility solution patent,
and vice versa.
2. The applicants for completion of the procedures
stipulated in clause 1 of this article must pay fees and charges.
3. Any amendment or supplementation of an application for
registration of industrial property must not expand the scope of the subject
matter already disclosed or stated in such application, and must not change the
nature of the subject matter subject to registration stated in the application
and must ensure the uniformity of the application.
4. In a case of division of an application, the filing date
of the divided application shall be deemed to be the filing date of the original
application.
Article 116. Withdrawal of
applications for registration of industrial property
1. Before the competent State administrative body for
industrial property rights decides or refuses to grant a protection title, the
applicant shall have the right to make a written declaration on the withdrawal
of the application for registration of industrial property in his or her own
name or through an industrial property representation service organization,
provided that a power of attorney clearly states authorization for withdrawal
of the application.
2. As from the time an applicant declares withdrawal of the
application, all further procedures related to such application shall cease;
fees and charges already paid in relation to the procedures which have not yet
been commenced shall be refunded to the applicant at his or her request.
3. All applications for registration of industrial designs
which have been withdrawn or are deemed to have been withdrawn before their
publication and all applications for registration of marks which have been
withdrawn shall be deemed not to have been filed, except where they serve as
grounds for claims for priority right.
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1. The grant of a protection title as the result of an
application for registration of an invention, industrial design, mark or
geographical indication shall be refused in the following cases:
(a) There are grounds to affirm that the subject
matter stated in the application does not fully satisfy the conditions for
protection;
(b) The application satisfies the conditions for the grant
of a protection title but does not have the earliest filing date or priority
date as in the case stipulated in clause 1 of article 90 of this Law;
(c) The application falls into a case stipulated in
clause 2 of article 90 of this Law but fails to have the consensus of all
applicants.
2. The grant of a protection title for an application for
registration of a layout design which does not fulfil the formal requirements
stipulated in article 109 of this Law shall be refused.
3. Where an application for registration of industrial
property falls into the cases stipulated in clauses 1 and 2 of this article,
the competent State administrative body for industrial property rights shall carry
out the following procedures:
(a) Notify an intended refusal to grant a protection
title, clearly stating the reasons therefor and setting a time-limit for the
applicant to make an objection to such intended refusal;
(b) Notify the refusal to grant a protection title if
the applicant makes no objection or makes unjustifiable objection to such
intended refusal stipulated in sub-clause (a) of this clause;
(c) Grant a protection title and record it in the
National Register of Industrial Property according to the provisions of article
118 of this Law if the applicant has made a justifiable objection to the
intended refusal stipulated in sub-clause (a) of this clause.
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Article 118. Grant of protection
titles, entry into the register
Where an application for registration of industrial property
does not fall into the cases of refusal to grant protection titles stipulated
in clauses 1, 2 and 3(b) of article 117 of this Law and the applicant has paid
the fee, the State administrative body for industrial property rights shall decide
to grant a protection title and enter it in the National Register of Industrial
Property.
Article 119. Time-limit for
processing applications for registration of industrial property
1. An application for registration of industrial property
shall have its form examined within one month from the filing date.
2. An application for registration of industrial property
shall be substantively examined within the following time-limits:
(a) For an invention, twelve (12) months from the date
of its publication if a request for substantive examination is filed before the
date of publication of the application, or from the date of receipt of a
request for substantive examination if such request is filed after the date of
publication of the application;
(b) For an industrial design, a mark or a geographical
indication, six (6) months from the date of publication of the application.
3. The time-limit for re-examination of an application for
registration of industrial property shall be equal to two-thirds of the time-limit
for the initial examination, and may, in complicated cases, be extended but
must not exceed the time-limit for the initial examination.
4. The duration for amendment or supplementation of
applications shall not be included in the time- limits specified in clauses 1,
2 and 3 of this article.
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Article 120. International
applications and processing of international applications
1. Applications for registration of industrial property
filed pursuant to a treaty of which the Socialist Republic of Vietnam is a
member shall be collectively referred to as international applications.
2. International applications and processing thereof shall
comply with the relevant treaties.
3. The Government shall guide the implementation of
provisions in relevant treaties on international applications, and the order
and procedure for processing thereof in compliance with the principles
stipulated in this Chapter.
Chapter IX
OWNERS OF INDUSTRIAL
PROPERTY RIGHTS, CONTENTS OF INDUSTRIAL PROPERTY RIGHTS, AND LIMITATIONS ON
INDUSTRIAL PROPERTY RIGHTS
Section 1. OWNERS OF INDUSTRIAL
PROPERTY RIGHTS, CONTENTS OF INDUSTRIAL PROPERTY RIGHTS
Article 121. Owners of industrial
property objects
1. The owner of an invention, industrial design or layout
design means an organization or individual who is granted a protection title
for the respective industrial property object by the competent body.
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2. Owner of a trade name means an organization or individual
who lawfully uses such trade name in business activities.
3. Owner of a trade secret means an organization or
individual who has lawfully acquired such trade secret and kept it secret. A
trade secret acquired by an employee or a performer of an assigned task during
the performance of the hired job or assigned task shall be owned by the
employer or the task assignor, unless otherwise agreed by the parties.
4. The State is the owner of geographical indications of
Vietnam.
The State shall grant the right to use geographical
indications to organizations or individuals who manufacture products bearing
such geographical indications in relevant localities and put such products on
the market. The State shall directly exercise the right to manage geographical
indications or grant that right to organizations representing the interests of
all organizations or individuals granted the right to use geographical
indications.
Article 122. Authors of inventions,
industrial designs and layout designs and their rights
1. The author of an invention, industrial design or layout
design means the person who has personally created such industrial property
object. Where two or more persons have jointly created an industrial property
object, they shall be co-authors of it.
2. Moral rights of authors of inventions, industrial designs
and layout designs shall include the following rights:
(a) To be named as authors in invention patents,
utility solution patents, industrial design patents or certificates of
registered design of semi-conducting closed circuits;
(b) To be acknowledged as authors in documents in
which inventions, industrial designs or layout designs are published or
introduced.
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Article 123. Rights of owners of
industrial property objects
1. Owners of industrial property objects shall have the
following economic rights:
(a) To use or authorize others to use industrial
property objects according to the provisions of article 124 and Chapter X of
this Law;
(b) To prevent others from using industrial property
objects according to the provisions of article 125 of this Law;
(c) To dispose of industrial property objects
according to the provisions of Chapter X of this Law.
2. Organizations and individuals who are granted by the
State the right to use or the right to manage geographical indications
according to the provisions of clause 4 of article 121 of this Law shall have
the following rights:
(a) Organizations which are granted the right to
manage geographical indications may permit other persons to use such
geographical indications according to the provisions of clause 1(a) of this
article;
(b) Organizations and individuals who are granted the
right to use or organizations which are granted the right to manage
geographical indications may prevent other persons from using such geographical
indications according to the provisions of clause 1(b) of this article.
Article 124. Use of industrial property
objects
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(a) Manufacturing the protected product;
(b) Applying the protected process;
(c) Exploiting utilities of the protected product or
the product manufactured under the protected process;
(d) Circulating, advertising, offering or stocking for
circulation the products stipulated in sub-clause (c) of this clause;
(dd) Importing the products stipulated in sub-clause
(c) of this clause.
2. Use of an industrial design means the performance of the
following acts:
(a) Manufacturing products with an appearance
embodying the protected industrial design;
(b) Circulating, advertising, offering or stocking for
circulation products stipulated in sub-clause (c) of this clause;
(c) Importing products stipulated in sub-clause (c) of
this clause.
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(a) Reproducing the layout design; manufacturing
semi-conducting closed circuits under the protected layout design;
(b) Selling, leasing, advertising, offering or
stocking copies of the protected layout design, semi- conducting closed
circuits manufactured under the protected layout design or articles containing
such semi-conducting closed circuits;
(c) Importing copies of the protected layout design,
semi-conducting closed circuits manufactured under the protected layout-design
or articles containing such semi-conducting closed circuits.
4. Use of a trade secret means the performance of the
following acts:
(a) Applying the trade secret to the manufacture of
products, provision of services or trade in goods;
(b) Selling, advertising for sale, stocking for sale
or importing products manufactured with the application of the trade secret.
5. Use of a mark means the performance of the following
acts:
(a) Affixing the protected mark on goods, goods
packages, business facilities, means of service provision or transaction
documents in business activities;
(b) Circulating, offering, advertising for sale or
stocking for sale goods bearing the protected mark;
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6. Use of a trade name means the performance of acts for
commercial purposes by using the trade name to name oneself in business
activities, or expressing the trade name in or on transaction documents,
signboards, products, goods, goods packages and means of service provision or
advertisement.
7. Use of a geographical indication means the performance of
the following acts:
(a) Affixing the protected geographical indication in
or on goods or goods packages, business facilities, and transaction documents
in business activities;
(b) Circulating, offering, advertising for sale or
stocking for sale goods bearing the protected geographical indication;
(c) Importing goods bearing the protected geographical
indication.
Article 125. Right to prevent others
from using industrial property objects
1. Owners of industrial property objects as well as organizations
and individuals granted the right to use or the right to manage geographical
indications shall have the right to prevent others from using such industrial
property objects unless such use falls into the cases stipulated in clauses 2
and 3 of this article.
2. Owners of industrial property objects as well as
organizations and individuals granted the right to use or the right to manage
geographical indications shall not have the right to prevent others from
performing the following acts:
(a) Using inventions, industrial designs or layout
designs in service of their personal needs or for non-commercial purposes, or
for purposes of evaluation, analysis, research, teaching, testing, trial
production or information collection for carrying out procedures of application
for licences for production, importation or circulation of products;
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(c) Using inventions, industrial designs or layout
designs only for the purpose of maintaining the operation of foreign means of
transport in transit or temporarily staying in the territory of Vietnam;
(d) Using inventions or industrial designs by persons
with the prior use right according to the provisions of article 134 of this
Law;
(dd) Using inventions by persons authorized by
competent State bodies according to the provisions of articles 145 and 146 of
this Law;
(e) Using layout designs without knowing or having the
obligation to know that such layout designs are under protection;
(g) Using marks identical with or similar to protected
geographical indications where such marks have acquired protection in an honest
manner before the date of filing the application for registration of such
geographical indication;
(h) Using in an honest manner people's names,
descriptive marks of type, quantity, quality, utility, value, geographical
origin and other properties of goods or services.
3. Owners of trade secrets shall not have the right to
prevent others from performing the following acts:
(a) Disclosing or using trade secrets acquired without
knowing or having the obligation to know that they were unlawfully acquired by
others;
(b) Disclosing secret data in order to protect the
public according to the provisions of clause 1 of article 128 of this Law;
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(d) Disclosing or using trade secrets obtained
independently;
(dd) Disclosing or using trade secrets obtained by
analyzing or evaluating lawfully distributed products, unless otherwise agreed
upon by analyzers or evaluators and owners of such trade secrets or sellers of
such products.
Article 126. Acts of infringement of
rights to inventions, industrial designs and layout designs
The following acts shall be regarded as infringements of
rights of owners of inventions, industrial designs and layout designs:
1. Using protected inventions, protected industrial designs
or industrial designs insignificantly different from protected industrial
designs, or protected layout designs or any original part thereof within the
valid term of a protection title without permission from the owners.
2. Using inventions, industrial designs and layout designs
without paying compensation according to the provisions on provisional rights
in article 131 of this Law.
Article 127. Acts of infringement of
the right to trade secrets
1. The following acts shall be deemed infringements of the
right to trade secrets:
(a) Accessing or acquiring information pertaining to a
trade secret by taking acts against secrecy- keeping measures applied by lawful
controllers of such trade secret;
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(c) Breaching secrecy-keeping contracts or deceiving,
inducing, buying off, forcing, seducing or abusing the trust of persons in
charge of secrecy-keeping in order to access, acquire or disclose a trade
secret;
(d) Accessing or acquiring information pertaining to
the trade secret of an applicant for a licence for trading in or circulating
products by taking acts against secrecy-keeping measures applied by competent
bodies;
(dd) Using or disclosing trade secrets, while knowing
or having the obligation to know that they have been acquired by others engaged
in one of the acts stipulated in sub-clauses (a), (b), (c) or (d) of this
clause;
(e) Failing to perform the secrecy-keeping obligation
stipulated in article 128 of this Law.
2. Lawful controllers of trade secrets defined in clause 1
of this Article include owners of trade secrets, their lawful licensees and
managers of trade secrets.
Article 128. Obligation to maintain
secrecy of test data
1. Where the law requires applicants for licences for
trading in or circulating pharmaceuticals or agro- chemical products to supply
test results or any other data being trade secrets obtained by investment of
considerable effort, and where applicants request such data to be kept secret,
the competent licensing body shall be obliged to apply necessary measures so
that such data is neither used for unfair commercial purposes nor disclosed,
except where the disclosure is necessary to protect the public.
2. From the time of submission of secret data in
applications to the competent body stipulated in clause 1 of this article to
the end of a five year period as from the date the applicant is granted a licence,
such body must not grant licences to any subsequent applicants in whose
applications the said secret data is used without the consent of submitters of
such data, except for the cases stipulated in clause 3(d) of article 125 of
this Law.
Article 129. Acts of infringement of
rights to marks, trade names and geographical indications
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(a) Using signs identical with protected marks for
goods or services identical with goods or services on the list registered
together with such mark;
(b) Using signs identical with protected marks for
goods or services similar or related to those goods or services on the list
registered together with such mark, if such use is likely to cause confusion as
to the origin of the goods or services;
(c) Using signs similar to protected marks for goods
or services identical with, similar to or related to goods or services on the
list registered together with such mark, if such use is likely to cause
confusion as to the origin of the goods or services;
(d) Using signs identical with, or similar to, well
known marks, or signs in the form of translations or transcriptions of well
known marks for any goods or services, including those not identical with,
dissimilar or unrelated to goods or services on the lists of those bearing well
known marks, if such use is likely to cause confusion as to the origin of the
goods or services or misleading impressions as to the relationship between
users of such signs and well known mark owners.
2. All acts of using commercial indications identical with,
or similar to, trade names of others which were used earlier for the same or
similar type of goods or services, which cause confusion as to business
entities, establishments or activities under such trade names shall be deemed
to be infringements of the right to the trade name.
3. The following acts shall be deemed to be infringements of
the right to protected geographical indications:
(a) Using protected geographical indications for
products which do not satisfy the criteria of peculiar characteristics and
quality of products bearing geographical indications, although such products
originate from geographical areas bearing such geographical indication;
(b) Using protected geographical indications for
products similar to products bearing geographical indications for the purpose
of taking advantage of their reputation and popularity;
(c) Using any sign identical with, or similar to, a
protected geographical indication for products not originating from
geographical areas bearing such geographical indication, and therefore
misleading consumers into believing such products originate from such geographical
areas;
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Article 130. Acts of unfair
competition
1. The following acts shall be deemed to be acts of unfair
competition:
(a) Using commercial indications to cause confusion as
to business entities, business activities or commercial origin of goods or
services;
(b) Using commercial indications to cause confusion as
to the origin, production method, utilities, quality, quantity or other
characteristics of goods or services; or as to the conditions for provision of
goods or services;
(c) Using marks protected in a country which is a
contracting party to a treaty of which the Socialist Republic of Vietnam is a
member and under which representatives or agents of owners of such marks are
prohibited from using such marks, if users are representatives or agents of the
mark owners and such use is neither consented to by the mark owners nor
justified;
(d) Registering or possessing the right to use or
using domain names identical with, or confusingly similar to, protected trade
names or marks of others, or geographical indications without having the right
to use, for the purpose of possessing such domain name, benefiting from or
prejudicing the reputation and popularity of the respective mark, trade name or
geographical indication.
2. Commercial indications stipulated in clause 1 of this
article mean signs and information serving as guidelines to trading of goods or
services including marks, trade names, business symbols, business slogans,
geographical indications, designs of packages and/or labels of goods.
3. Acts of using commercial indications stipulated in clause
1 of this article include acts of affixing such commercial indications on
goods, goods packages, means of service provision, business transaction
documents or advertising means; and selling, advertising for sale, stocking for
sale and importing goods affixed with such commercial indications.
Article 131. Provisional rights to
inventions, industrial designs and layout designs
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2. For a layout design which has, before the grant date of
the certificate of registered design of semi- conducting closed circuits, been
commercially exploited by the person with the registration right or his or her
licensee, if such person knows that such layout design is being used by another
person for commercial purposes, then he or she may notify in writing the user
of his or her registration right so that the user may either terminate or
continue such use.
3. Where the person notified of contents stipulated in
clauses 1 and 2 of this article continues using such invention, industrial
design or layout design, then as soon as an invention patent, utility solution
patent, industrial design patent or certificate of registered design of
semi-conducting closed circuits is granted, the owner of the object shall have
the right to request the user to pay compensation equivalent to the price for
licensing of such invention, industrial design or layout design within the
corresponding scope and duration of use.
Section 2. LIMITATIONS ON INDUSTRIAL
PROPERTY RIGHTS
Article 132. Factors limiting
industrial property rights
Industrial property rights may be limited pursuant to this
Law by the following factors:
1. Right of prior users to inventions or industrial designs.
2. Obligations of owners, including:
(a) To pay remuneration to the authors of inventions,
industrial designs or layout designs;
(b) To use inventions or marks.
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Article 133. Right to use inventions
on behalf of the State
1. Ministries and ministerial equivalent bodies shall have
the right, on behalf of the State, to use or permit other organizations or
individuals to use inventions in domains under their respective management for
public and non-commercial purposes, national defence and security, disease
prevention, and treatment and nutrition of the people, and to meet other urgent
social needs without having to obtain permission of invention owners or their
licensees under exclusive contracts (hereinafter referred to as holders of the
exclusive right to use inventions) in accordance with articles 145 and 146 of
this Law.
2. The use of inventions pursuant to clause 1 of this article
shall be limited within the scope of and under the conditions for licensing
provided for in clause 1 of article 146 of this Law, except where such
inventions are created by using material and technical facilities and funds
from the State Budget.
Article 134. Right of prior use of
inventions and industrial designs
1. Where a person has, before the publication date of an
application for registration of an invention or industrial design, used or
prepared necessary conditions for use of an invention or industrial design
identical with the protected invention or industrial design stated in such
application for registration, but created independently (hereinafter referred
to as the prior use right holder), then after a protection title is granted,
such person shall be entitled to continue using such invention or industrial
design within the scope and volume of use or use preparations without having to
obtain permission or paying compensation to the owner of the protected
invention or industrial design. The exercise of the right of prior users of
inventions or industrial designs shall not be deemed an infringement of the
right of the owner of the invention or industrial design.
2. Prior use right holders to inventions or industrial
designs must not assign such right to others, except where such right is
assigned together with the transfer of a business or production establishment
which has used or has prepared to use the invention or industrial design. Prior
use right holders must not expand the use scope and volume unless it is so
permitted by the owner of the invention or industrial design.
Article 135. Obligation to pay
remuneration to authors of inventions, industrial designs and layout designs
1. Owners of inventions, industrial designs and layout
designs shall be obliged to pay remuneration to the authors of such inventions,
industrial designs and layout designs in accordance with the provisions of
clauses 2 and 3 of this article, unless otherwise agreed upon by the parties.
2. The minimum level of remuneration payable by an owner to
an author shall be regulated as follows:
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(b) Fifteen (15) per cent of the total amount received
by the owner in each payment for licensing of the invention, industrial design
or layout design.
3. Where an invention, industrial design or layout design is
jointly created by more than one author, the remuneration level provided for in
clause 2 of this article shall be applicable to all co-authors. The co- authors
shall agree between themselves on the division of the remuneration paid by the
owner.
4. The obligation to pay remuneration to authors of
inventions, industrial designs and layout designs shall exist throughout the
term of protection of such invention, industrial design or layout design.
Article 136. Obligation to use
inventions and marks
1. Owners of inventions shall be obliged to manufacture
protected products or apply protected processes to satisfy the requirements of
national defence and security, disease prevention, and treatment and nutrition
of the people or to meet other social urgent needs. When the needs stipulated
in this clause arise but an invention owner fails to perform such obligation,
the competent State body may license such invention to others without
permission from the invention owner in accordance with the provisions of
articles 145 and 146 of this Law.
2. Owners of marks shall be obliged to use such marks
continuously. Where a mark has not been used for five consecutive years or
more, the ownership right to such mark shall be invalidated in accordance with
the provisions of article 95 of this Law.
Article 137. Obligation to authorize
the use of principal inventions for the purpose of using dependent inventions
1. A dependent invention means an invention created based on
another invention (hereinafter referred to as the principal invention) and may
only be used on condition that the principal invention is also used.
2. Where the owner of a dependent invention can prove that
his or her invention makes an important technical advance as compared with the
principal invention and has great economic significance, he or she may request
the owner of the principal invention to license such principal invention at a
reasonably commercial price and conditions.
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Chapter X
TRANSFER OF INDUSTRIAL
PROPERTY RIGHTS
Section 1. ASSIGNMENT OF INDUSTRIAL
PROPERTY RIGHTS
Article 138. General provisions on
assignment of industrial property rights
1. Assignment of an industrial property right means the
transfer of ownership right by the owner of such industrial property right to
another organization or individual.
2. An assignment of an industrial property right must be
established in the form of a written contract (hereinafter referred to as an
industrial property right assignment contract).
Article 139. Restrictions on
assignment of industrial property rights
1. Industrial property right owners may only assign their
rights within the scope of protection.
2. Rights to geographical indications shall not be
assignable.
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4. The assignment of the rights to marks must not cause
confusion as to properties or origins of goods or services bearing such marks.
5. Rights to marks may only be assigned to organizations or
individuals who satisfy conditions for persons having the right to register
such marks.
Article 140. Contents of industrial
property right assignment contracts
An industrial property right assignment contract must
contain the following principal contents:
1. Full names and addresses of the assignor and of the
assignee.
2. Grounds for the assignment.
3. Assignment price.
4. Rights and obligations of the assignor and the assignee.
Section 2. LICENSING OF INDUSTRIAL
PROPERTY RIGHTS
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1. Licensing of an industrial property object means
permission by the owner of such industrial property object for another
organization or individual to use the industrial property object within the
scope of the owner's right.
2. Licensing of industrial property objects must be
established in the form of a written contract (hereinafter referred to as
industrial property object licence contract).
Article 142. Restrictions on
licensing of industrial property objects
1. The right to use geographical indications or trade names
shall not be licensable.
2. The right to use collective marks must not be licensed to
organizations or individuals other than members of the owners of such
collective marks.
3. The licensee must not enter into a sub-licence contract
with a third party, unless it is so permitted by the licensor.
4. Mark licensees shall be obliged to indicate on goods and
goods packages that such goods have been manufactured under mark licence
contracts.
5. Invention licensees under exclusive contracts shall be
obliged to use such inventions in the same manner as the invention owners
according to the provisions of clause 1 of article 136 of this Law.
Article 143. Types of industrial
property object licence contracts
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1. Exclusive contract means a contract under which, within
the licensing scope and term, the licensee shall have the exclusive right to
use the licensed industrial property object while the licensor may neither
enter into any industrial property object licence contract with any third party
nor, without permission from the licensee, use such industrial property object.
2. Non-exclusive contract means a contract under which,
within the licensing scope and term, the licensor shall still have the right to
use the industrial property object and to enter into a non-exclusive industrial
property object licence contract with others.
3. Industrial property object sub-licence contract means a
contract under which the licensor is a licensee of the right to use such
industrial property object pursuant to another contract.
Article 144. Contents of industrial
property object licence contracts
1. An industrial property object licence contract must
contain the following principal contents:
(a) Full names and addresses of the licensor and of
the licensee;
(b) Grounds for licensing;
(c) Contract type;
(d) Licensing scope including limitations on use right
and territorial limitations;
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(e) Licensing price;
(g) Rights and obligations of the licensor and of the
licensee.
2. An industrial property object licence contract must not
have provisions which unreasonably restrict the right of the licensee, and in
particular the following provisions which do not derive from the rights
of the licensor:
(a) Prohibiting the licensee from improving the
industrial property object other than marks; compelling the licensee to
transfer free of charge to the licensor improvements of the industrial property
object made by the licensee or the right of industrial property registration or
industrial property rights to such improvements;
(b) Directly or indirectly restricting the licensee
from exporting goods produced or services provided under the industrial
property object licence contract to the territories where the licensor neither
holds the respective industrial property right nor has the exclusive right to
import such goods;
(c) Compelling the licensee to buy all or a certain
percentage of raw materials, components or equipment from the licensor or a
third party designated by the licensor not for the purpose of ensuring the
quality of goods produced or services provided by the licensee;
(d) Prohibiting the licensee from complaining about or
initiating lawsuits with regard to the validity of the industrial property
rights or the licensor's right to license.
3. Any clauses in a contract falling into the cases
stipulated in clause 2 of this article shall be automatically invalid.
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Article 145. Grounds for compulsory
licensing of inventions
1. In the following cases, the right to use an invention may
be licensed to another organization or individual pursuant to a decision of the
competent State body defined in clause 1 of article 147 of this Law without
permission from the holder of the exclusive right to use such invention:
(a) Where the use of such invention is for public and
non-commercial purposes or in service of national defence and security, disease
prevention, and treatment and nutrition of people or other urgent needs of
society;
(b) Where the holder of the exclusive right to use
such invention fails to fulfil the obligations to use such invention stipulated
in clause 1 of article 136 and clause 5 of article 142 of this Law upon the
expiration of four years as from the date of filing the application for
registration of the invention, or the expiration of three years as from the
date of granting the invention patent;
(c) Where a person who wishes to use the invention
fails to reach an agreement with the holder of the exclusive right to use such
invention or on entry into an invention licence contract in spite of efforts
made within a reasonable time for negotiating a satisfactory commercial price
and conditions;
(d) Where the holder of the exclusive right to use
such invention is deemed to have performed anti-competitive practices
prohibited by the law on competition.
2. The holder of the exclusive right to use an invention may
request termination of the use right when the grounds for licensing stipulated
in clause 1 of this article no longer exist and are unlikely to recur, provided
that such termination shall not be prejudicial to the licensee of the
invention.
Article 146. Conditions limiting the
right to use inventions compulsorily licensed pursuant to a decision
1. The right to use an invention licensed pursuant to a
decision of a competent State body must comply with the following conditions:
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(b) Such licensed use right is only limited to a scope
and duration sufficient to achieve the licensing objectives, and largely for
the domestic market, except for the case stipulated in clause 1(d) of article
145 of this Law. For an invention in semi-conducting technology, licensing
shall be only for public and non-commercial purposes or for dealing with
anti-competitive practices prohibited by the law on competition;
(c) The licensee must neither assign nor sub-license
such right to others, except where the assignment is effected together with the
transfer of the licensee's establishment;
(d) The licensee must pay the holder of the exclusive
right to use the invention satisfactory compensation depending on the economic
value of such use right in each specific case, and compliant with the
compensation framework stipulated by the Government.
2. Apart from the conditions stipulated in clause 1 of this
article, the right to use an invention licensed in any of the cases stipulated
in clause 2 of article 137 of this Law must also satisfy the following
conditions:
(a) The holder of the exclusive right to use the
principal invention shall also be licensed to use dependent inventions on
reasonable terms;
(b) The licensee of the right to use the principal
invention must not assign such right, except where the assignment is effected
together with all rights to the dependent inventions.
Article 147. Authority and
procedures for compulsorily licensing of an invention pursuant to a decision
1. The Ministry of Science and Technology shall issue
decisions on licensing of inventions based on a consideration of requests for
licensing in the cases stipulated in sub-clauses (b), (c) and (d) of article
145.1 of this Law.
Ministries and ministerial equivalent bodies shall, after
consulting the opinion of the Ministry of Science and Technology, issue
decisions on licensing of inventions in domains under their respective
management in the case stipulated in sub-clause (a) of article 145.1 of this
Law.
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3. The State body competent to decide on licensing of an
invention must promptly notify its decision to the holder of the exclusive
right to use such invention.
4. A decision on licensing of an invention or on refusal to
license an invention may be subject to a complaint or lawsuit in accordance
with law.
5. The Government shall provide specific regulations on
licensing of inventions pursuant to this article.
Section 4. REGISTRATION OF CONTRACTS
FOR TRANSFER OF INDUSTRIAL PROPERTY RIGHTS
Article 148. Validity of contracts
for transfer of industrial property rights
1. For the industrial property rights established on the
basis of registration according to the provisions of clause 3(a) of article 6
of this Law, an industrial property right assignment contract shall be valid
upon its registration with the State administrative body for industrial
property rights.
2. For the industrial property rights established on the
basis of registration according to the provisions of clause 3(a) of article 6
of this Law, an industrial property object licence contract shall be valid as
agreed upon by the parties involved but shall be legally effective as against a
third party upon registration with the State administrative body for industrial
property rights.
3. Validity of an industrial property object licence
contract shall be automatically terminated upon the termination of the
licensor's industrial property rights.
Article 149. Application file for
registration of a contract for transfer of industrial property rights
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1. A declaration for registration, made according to the
sample form.
2. The original or a valid copy of the contract.
3. The original of the protection title in the case of an
industrial property right assignment.
4. The co-owners' written consent, or a written explanation
of the reason for disagreement of any co- owner with the right assignment where
the industrial property right is under joint ownership.
5. Receipt for payment of fees and charges.
6. A power of attorney, if the application file is filed by
a representative.
Article 150. Processing application
files for registration of contracts for transfer of industrial property rights
The Government shall provide regulations on the order and
procedures for receiving and processing application files for registration of
industrial property object licence contracts and of industrial property right
assignment contracts.
Chapter XI
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Article 151. Industrial property
representation services
1. Industrial property representation services shall
comprise:
(a) Representing organizations or individuals before
competent State bodes in the establishment and enforcement of industrial
property rights;
(b) Providing consultancy on issues related to
procedures for the establishment and enforcement of industrial property rights;
(c) Other services related to procedures for the
establishment and enforcement of industrial property rights.
2. Industrial property representatives shall comprise
organizations providing industrial property representation services
(hereinafter referred to as industrial property representation service
organizations) and individuals practicing industrial property representation
within such organizations (hereinafter referred to as industrial property
agents).
Article 152. Scope of rights of
industrial property representatives
1. Industrial property representation service organizations
shall only provide services within the scope of authorization and may
re-authorize other industrial property representation service organizations
when they obtain written consent from the authorizing parties.
2. Industrial property representation service organizations
may voluntarily waive their industrial property representation service business
after having lawfully transferred all incomplete representation jobs to other
industrial property representation service organizations.
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(a) Concurrently represent different parties in
dispute over industrial property rights;
(b) Withdraw applications for protection titles,
declare waiver of protection or withdraw appeals against the establishment of
industrial property rights without consent from the authorizing parties;
(c) Deceive their clients regarding contracts for
industrial property representation services or force their clients to enter
into and perform such contracts.
Article 153. Responsibilities of
industrial property representatives
1. Industrial property representatives shall have the
following responsibilities:
(a) To clearly notify fee and charge amounts and rates
related to procedures for establishment and enforcement of industrial property
rights, and service charge amounts and rates according to the service charge
tariff registered at the State administrative body for industrial property
rights;
(b) To keep confidential information and documents
related to cases in which they act as representatives;
(c) To truthfully and fully inform represented parties
of all notices and requests from the State body competent to establish and enforce
industrial property rights; to deliver on time to the represented parties
protection titles and other decisions;
(d) To protect the rights and legitimate interests of
represented parties by promptly satisfying all requests regarding represented
parties from the State body competent to establish and enforce industrial
property rights;
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2. Industrial property representation service organizations
shall be civilly liable to the represented parties for representation performed
by industrial property agents on behalf of such service organizations.
Article 154. Conditions applicable
to industrial property representation service business
Organizations which satisfy the following conditions shall
be permitted to provide industrial property representation services as
industrial property representation service organizations:
1. Being a business or organization which practises law, or
a scientific and technological service organization lawfully established and
operating.
2. Having the function of providing industrial property
representation services, which is stated in its business registration
certificate or operation registration certificate (hereinafter both referred to
as business registration certificate).
3. The head of such organization or person authorized by the
head must satisfy the conditions for industrial property representation service
practice stipulated in clause 1 of article 155 of this Law.
Article 155. Conditions applicable
to industrial property representation service practices
1. An individual who satisfies the following conditions shall
be permitted to practice industrial property representation service:
(a) Having an industrial property representation
service practising certificate;
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2. Any individual who satisfies the following conditions
shall be granted an industrial property representation service practising
certificate:
(a) Being a Vietnamese citizen with full capacity for
civil acts;
(b) Residing permanently in Vietnam;
(c) Having a university degree;
(d) Having been engaged personally in the domain of
industrial property law for five consecutive years or more, or in the
examination of assorted industrial property registration applications at
national or international industrial property offices for five consecutive
years or more, or having graduated from a training course on industrial
property law recognized by the competent body;
(dd) Not being a civil servant working in the State
body competent to establish and enforce industrial property rights;
(e) Having passed an examination on the industrial
property representation profession organized by the competent body.
3. The Government shall provide detailed programs on
industrial property law training and on examinations for the industrial property
representation profession, and on the grant of industrial property
representation service practising certificates.
Article 156. Recording and deleting
names of industrial property representation service organizations; withdrawal
of industrial property representation service practising certificates
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2. Where there are grounds to confirm that an industrial
property representative no longer satisfies the business or practising
conditions stipulated in articles 154 and 155 of this Law, the State
administrative body for industrial property rights shall delete the name of
such industrial property representative in the National Register of Industrial
Property and publish such deletion in the Official Gazette of Industrial
Property.
3. Industrial property representation service organizations
which breach the provisions of clause 3 of article 152 and article 153 of this
Law shall be dealt with in accordance with law.
4. Industrial property agents who make professional mistakes
while practising or who breach the provisions of clause 3(c) of article 152 and
clause 1(a) of article 153 of this Law shall, depending on the nature and
seriousness of their mistake or breach, be subject to a caution, monetary fine
or withdrawal of their industrial property representation service practising
certificate.
PART IV
RIGHTS TO PLANT
VARIETIES
Chapter XII
CONDITIONS FOR
PROTECTION OF RIGHTS TO PLANT VARIETIES
Article 157. Organizations and
individuals whose rights to plant varieties are eligible for protection
1. Organizations and individuals whose rights to plant
varieties are eligible for protection means those who select and breed or
discover and develop plant varieties or who invest in the selection and
breeding or the discovery and development of plant varieties or to whom rights
to plant varieties are transferred.
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Article 158. General conditions for
plant varieties to be eligible for protection
Plant varieties eligible for protection means plant
varieties which have been selected and bred or discovered and developed, are on
the list of State protected plant species promulgated by the Ministry of
Agriculture and Rural Development; and are new, distinct, uniform, stable and designated
by proper denominations.
Article 159. Novelty of a plant
variety
A plant variety shall be deemed new if reproductive
materials or harvested materials of such variety have not yet been sold or
otherwise distributed for the purpose of exploitation in the territory of
Vietnam by the registration right holder defined in article 164 of this Law or
his or her licensee one (1) year before the filing date of the application for
registration, or for exploitation outside the territory of Vietnam six (6) years
before the filing date of the application for registration for timber trees or
vines, or four (4) years for other plant varieties.
Article 160. Distinctness of a plant
variety
1. A plant variety shall be deemed to be distinct if it is
clearly distinguishable from any other variety whose existence is a matter of
common knowledge at the time of filing the application or on the priority date,
as the case may be.
2. Plant varieties whose existence is a matter of common
knowledge defined in clause 1 of this article mean those falling into one of
the following cases:
(a) Their reproductive materials or harvested
materials have been widely used in the market of any country at the time of
filing of the application for registration for protection;
(b) They have been protected or registered on the list
of plant species in any country;
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(d) Their detailed description has been published.
Article 161. Uniformity of a plant
variety
A plant variety shall be deemed uniform if, subject to
variation which may be expected from the particular features of its
propagation, it is sufficiently uniform in its relevant characteristics.
Article 162. Stability of a plant
variety
A plant variety shall be deemed stable if its relevant
originally described characteristics remain unchanged after repeated
propagation or, in the case of a particular cycle of propagation, at the end of
each cycle.
Article 163. Denominations of plant
varieties
1. The registrant must designate a proper denomination for a
plant variety which must be the same as the denomination registered in any
country where and when an application for registration for protection was
filed.
2. The denomination of a plant variety shall be deemed
proper if it is distinguishable from those of other plant varieties of common
knowledge within the same or similar species.
3. Denominations of plant varieties shall be deemed improper
in the following cases:
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(b) They violate social ethics;
(c) They may easily mislead as to features or
characteristics of such variety;
(d) They may easily mislead as to identification of
the breeder;
(dd) They are identical or confusingly similar to
marks, trade names or geographical indications protected before the date of
publication of the application for registration for protection of such plant
variety;
(e) They are identical or similar to the denomination
of a harvested material of such plant variety;
(g) They affect prior rights of other organizations or
individuals.
4. Organizations and individuals who offer for sale or bring
onto the market reproductive materials of plant varieties must use the
denominations of such plant varieties as stated in protection titles even after
the expiration of the protection terms.
5. When denominations of plant varieties are combined with
marks, trade names or indications similar to denominations of plant varieties
already registered for offer for sale or brought onto the market, such
denominations must still be distinguishable.
Chapter XIII
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Section 1. ESTABLISHMENT OF RIGHTS
TO PLANT VARIETIES
Article 164. Registration of rights
to plant varieties
1. In order to obtain protection of rights to plant
varieties, an organization or individual must file an application for
registration for protection with the State administrative body for rights to
plant varieties.
2. Organizations and individuals having the right to
register plant varieties for protection (hereinafter referred to as
registrants) shall include:
(a) Breeders who have personally selected and bred or
discovered and developed the plant variety by their own efforts and at their
own expense;
(b) Organizations and individuals who fund breeders to
select and breed or discover and develop the plant variety by job assignment or
hiring, unless otherwise agreed;
(c) Organizations and individuals to whom are
transferred, or who inherit the right to register for protection of the plant
variety.
3. For plant varieties which are selected and bred or
discovered and developed with the use of State Budget funds or under projects
managed by the State, the rights to such plant varieties shall belong to the
State. The Government shall issue specific regulations governing the
registration of rights to plant varieties stipulated in this clause.
Article 165. Method of filing
applications for registration of rights to plant varieties
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2. Any foreign organization or individual without a
permanent residential address in Vietnam or without a plant variety production
or trading establishment in Vietnam may file an application for registration of
rights to a plant variety by a lawful representative in Vietnam.
Article 166. "First to
file" principle applicable to plant varieties
1. Where two or more parties independently file applications
for registration for protection on different days for the same plant variety, a
plant variety protection certificate shall only be granted to the earliest
valid registrant.
2. Where there are a number of applications for registration
for protection of the same plant variety filed on the same day, a plant variety
protection certificate shall only be granted to the registrant whose name is
used for the filing of the sole application as agreed upon by all the other
registrants. Where these registrants fail to reach agreement, the State
administrative body for rights to plant varieties shall consider a grant of a
plant variety protection certificate to the party deemed to be the first
breeder who selected and bred or discovered and developed such variety.
Article 167. Priority principle
applicable to protection registration applications
1. A registrant may claim priority right where an
application for registration for protection is filed within twelve (12) months
from the date of filing an application for registration for protection for the
same plant variety in a country which has concluded an agreement on plant
variety protection with the Socialist Republic of Vietnam. The date on which
the first filing occurred shall not be included in this time-limit.
2. In order to enjoy priority right, the registrant must
express the claim for the priority right in his or her application for
registration for protection. Within three (3) months after filing the
application, the registrant must produce copies of documents on the first
application certified by the competent body and samples or other evidence
proving that the variety in both applications was the same, and the registrant
must pay a fee. The registrant may supply necessary information, documents or
materials to the State administrative body for rights to plant varieties for
examination according to the provisions of articles 176 and 178 of this Law
within two (2) years of expiry of the duration for enjoying the priority right,
or within an appropriate duration depending on the species of the plant variety
stated in the application after a first application is rejected or withdrawn.
3. Where an application for registration for protection is
eligible for priority right, the priority date shall be the first filing date.
4. Within the time-limit stipulated in clause 1 of this
article, the filing of another application or the publication or use of the
plant variety the subject matter of the first application for registration for
protection shall not be deemed a ground for rejecting the application for
registration for protection eligible for the priority right.
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1. A protection certificate for a plant variety shall state
the denomination and species of such variety, the name of the owner of rights
to such plant variety (hereinafter referred to as the protection certificate
holder), the name of the plant variety breeder and the duration of the term of
protection of rights to the plant variety.
2. The State administrative body for rights to plant
varieties shall record the grant and contents of a protection certificate in
the National Register of Protected Plant Varieties, and shall archive such
information.
Article 169. Validity of plant
variety protection certificates
1. A plant variety protection certificate shall be valid
throughout the entire territory of Vietnam.
2. Plant variety protection certificates shall be valid from
the grant date up until the expiry of a period of twenty-five (25) years for
timber trees and vines; and of twenty (20) years for other plant varieties.
3. Plant variety protection certificates may have their
validity terminated or they may be invalidated pursuant to the provisions of
articles 170 and 171 of this Law.
Article 170. Suspension and
restoration of validity of plant variety protection certificates
1. The validity of a plant variety protection certificate
may be suspended in the following cases:
(a) The protected plant variety no longer satisfies the
conditions of uniformity and stability as at the time of grant of the
certificate;
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(c) The protection certificate holder fails to supply
necessary documents and reproductive materials for maintaining and preserving
the plant variety according to regulations;
(d) The protection certificate holder fails to change
the denomination of the plant variety at the request of the State
administrative body for rights to plant varieties.
2. In the cases stipulated in sub-clauses (a), (c) and (d)
of clause 1 of this article, the relevant State administrative body for rights
to plant varieties shall issue a decision on suspension of validity of the
plant variety protection certificate.
3. In the case stipulated in sub-clause (b) of clause 1 of
this article, upon the expiry of the time-limit for payment of the validity
maintenance fee, the relevant State administrative body for rights to plant
varieties shall issue a decision on suspension of validity of the plant variety
protection certificate as from the first day of the next valid year for which
the validity maintenance fee was not paid.
4. In the case stipulated in sub-clause (a) of clause 1 of
this article, any organization or individual may request the State
administrative body for rights to plant varieties to suspend the validity of
the plant variety protection certificate.
Based on the results of considering the application for
suspension of a plant variety protection certificate and the opinions of
relevant parties, the relevant State administrative body for rights to plant
varieties shall either issue a decision to suspend the validity of the
certificate or shall refuse the application.
5. In the cases stipulated in clause 1 of this article, the
relevant State administrative body for rights to plant varieties shall publish
such suspension in a specialized magazine, clearly stating the reasons
therefor, and concurrently send a notice thereon to the certificate holder.
Within thirty (30) days from the date of notification, the certificate holder
may file a request for application of remedies to the reasons why validity was
suspended with the State administrative body for rights to plant varieties and
pay the fee for restoration of validity of the plant variety protection
certificate. Within ninety (90) days after the date of filing the request, the
protection certificate holder must remedy the reasons why validity was
suspended, applicable to the cases stipulated in sub-clauses (b), (c) and (d)
of clause 1 of this article. The State administrative body for rights to plant
varieties shall consider and restore the validity of the protection certificate
and publish such restoration in a specialized magazine.
In the case stipulated in sub-clause (a) of clause 1 of this
article, the validity of the plant variety protection certificate shall be
restored after its holder successfully proves that the plant variety has
satisfied the conditions of uniformity and stability and after this has been so
certified by the State administrative body for rights to plant varieties.
Article 171. Cancellation of
effectiveness of plant variety protection certificates
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(a) The application for registration for protection of
the plant variety was filed in the name of a person who did not have the
registration right, except where the right to such plant variety was assigned
to the holder of the registration right;
(b) The protected plant variety failed to satisfy the
conditions of novelty or distinctness at the time
of grant of the plant variety protection certificate;
(c) The plant variety failed to satisfy the conditions
of uniformity or stability where the plant variety protection certificate was
granted on the basis of results of technical tests conducted by the registrant.
2. During the valid term of a plant variety protection
certificate, any organization or individual may request the State
administrative body for rights to plant varieties to cancel the effectiveness
of a plant variety protection certificate.
Based on the results of the examination of a request for
cancellation of effectiveness of a plant variety protection certificate and
opinions of the relevant parties, the State administrative body for rights to
plant varieties shall either issue a notice of refusal to cancel or shall issue
a decision on cancellation of effectiveness of the plant variety protection
certificate.
3. Where a plant variety protection certificate is
cancelled, all transactions arising on the basis of the grant of the plant
variety protection certificate shall be null and void, and such null and void
transactions shall be dealt with in compliance with the Civil Code.
Article 172. Amendment and re-grant
of plant variety protection certificates
1. A protection certificate holder may request the State
administrative body for rights to plant varieties to amend or correct errors
related to the name and address of the holder, on payment of fees and charges.
Where such errors were made by the State administrative body for rights to
plant varieties, such body must correct such errors, and protection certificate
holders shall not have to pay fees and charges.
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Article 173. Publication of
decisions related to plant variety protection certificates
Decisions on the grant, re-grant, suspension, cancellation,
and amendment of plant variety protection certificates shall be published by
the State administrative body for rights to plant varieties in a specialized
magazine on plant varieties within sixty (60) days after such decisions are
issued.
Section 2. APPLICATIONS FOR
REGISTRATION FOR PROTECTION, AND PROCESSING APPLICATIONS
Article 174. Applications for
registration for protection
1. An application for registration for protection [of a
plant variety] shall contain the following documents:
(a) A declaration for registration made on the
stipulated sample form;
(b) Photos and a technical declaration made on the
stipulated sample form;
(c) Power of attorney, where the application is filed
through a representative;
(d) Documents evidencing the registration right where
the registrant is a transferee of the registration right;
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(e) Receipt for payment of fees and charges.
2. Applications for registration for protection and source
documents of transactions between an applicant for registration and the State
administrative body for rights to plant varieties shall be madein Vietnamese,
except for the following documents which may be made in another language but
shall be translated into Vietnamese at the request of the State administrative
body for rights to plant varieties:
(a) Power of attorney;
(b) Documents evidencing the registration right;
(c) Documents evidencing the priority right;
(d) Other documents supporting the application.
3. Documents evidencing the priority right of an application
for registration for protection of rights to a plant variety shall comprise:
(a) Copies of the first application(s) certified by
the receiving agency;
(b) Documents on transfer or inheritance of the
priority right if such right is acquired from another person.
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Article 175. Receipt of applications
for registration for protection, and filing dates
1. An application for registration for protection shall be
received by the relevant State administrative body for rights to plant
varieties only when the application encloses all the documents stipulated in
clause 1 of article 174 of this Law.
2. The filing date of an application shall be the date on
which such application is received by the relevant State administrative body
for rights to plant varieties.
Article 176. Formal examination of
applications for registration for protection
1. The State administrative body for rights to plant
varieties shall conduct a formal examination of an application within fifteen
(15) days of receipt of such application, in order to determine the validity of
such application.
2. An application for registration for protection shall be
deemed invalid in the following cases:
(a) It fails to satisfy the formal requirements as
stipulated;
(b) The plant variety stated in such application does
not belong to a plant species on the list of protected plant species;
(c) The application is filed by a person who does not
have the registration right, including where the registration right belongs to
many organizations or individuals but one or more of them do not agree to
register.
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(a) Notify a refusal to accept the application in the
cases stipulated in sub-clauses (b) and (c) of clause 2 of this article,
clearly stating the reasons therefor;
(b) Notify the registrant of errors for correction in
the case stipulated in sub-clause (a) of clause 2
of this article, setting a time-limit of thirty (30) days
after the receipt of the notice for the correction of such errors by the
registrant;
(c) Notify the refusal to accept the application where
the registrant fails to correct errors or where the registrant does not make a
reasonable appeal against the notice stipulated in sub-clause (b) of this
clause;
(d) Notify the acceptance of the application,
requesting the registrant to supply samples of the plant variety to the testing
institution for performance of technical tests and procedures stipulated in
article 178 of this Law where such application is valid or where the registrant
has properly corrected the errors or made a justifiable opposition to the
notice stipulated in sub- clause (b) of this clause.
Article 177. Publication of
applications for registration for protection
1. Where an application is accepted as valid, the State
administrative body for rights to plant varieties shall publish such valid
application in a specialized magazine on plant varieties within ninety (90)
days from the date of acceptance of the application.
2. The published contents of an application shall include
the serial number and filing date of the application, the representative agent
(if any), the registrant, the owner, the denomination of the plant variety, the
name of the plant species, and the date on which the application was accepted
as valid.
Article 178. Substantive examination
of contents of applications for registration for protection
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(a) Examination of the novelty and proper denomination
of the plant variety;
(b) Examination of results of technical tests of the
plant variety.
2. Technical tests means experiments conducted to determine
the distinctness, uniformity and stability of a plant variety.
The technical test shall be conducted by the competent State
body or by an organization or individual capable of testing plant varieties in
compliance with regulations of the Ministry of Agriculture and Rural
Development.
The State administrative body for rights to plant varieties
may use previously obtained technical test results.
3. The time-limit for examination of technical test results
shall be ninety (90) days from the date of receipt of such technical test
results.
Article 179. Amendment and
supplementation of applications for registration for protection
1. Before the relevant State administrative body for rights
to plant varieties notifies a refusal to grant a plant variety protection
certificate or notifies its decision on grant of a plant variety protection
certificate, the registrant shall have the following rights:
(a) To amend or supplement the application without
changing the nature of the application;
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(c) To request the recording of a change of registrant
due to assignment of the application pursuant to a contract or as a result of
inheritance or bequest.
2. The person requesting the conduct of the procedures
stipulated in clause 1 of this article must pay fees and charges.
Article 180. Withdrawal of
applications for registration for protection
1. Before the relevant State administrative body for rights
to plant varieties decides or refuses to grant a plant variety protection
certificate, the registrant may withdraw the application. A request for
withdrawal of an application must be made in writing.
2. From the moment a registrant withdraws an application for
registration for protection, all subsequent procedures related to such
application shall cease; and fees and charges already paid for procedures which
have not yet been carried out shall be refunded at the request of the
registrant.
Article 181. Opinions of third
parties on the grant of a plant variety protection certificate
As from the date of publication of an application for
registration for protection of a plant variety in a specialized magazine on
plant varieties up until before a decision on grant of a plant variety
protection certificate is issued, any third party shall be permitted to provide
an opinion to the State administrative body for rights to plant varieties
challenging the grant of such plant variety protection certificate. An opinion
must be made in writing and accompanied by documents and evidence to support
it.
Article 182. Refusal to grant a
plant variety protection certificate
An application for registration for protection shall be
rejected and the grant of a plant variety protection certificate refused where
the relevant plant variety fails to satisfy the conditions stipulated in
articles 176 and 178 of this Law. In a case of refusal to grant a plant variety
protection certificate, the State administrative body for rights to plant
varieties shall carry out the following procedures:
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2. Notify the refusal to grant a plant variety protection
certificate where the registrant fails to correct errors and makes no
opposition to the intended refusal stipulated in clause 1 of this article.
3. Carry out the procedures stipulated in article 183 of
this Law where the registrant has corrected errors or made a justifiable
opposition to the intended refusal stipulated in clause 1 of this article.
Article 183. Grant of plant variety
protection certificates
Where an application for registration for protection is not
rejected as provided for in article 182 of this Law and the registrant pays the
fee, the State administrative body for rights to plant varieties shall issue a
decision granting a plant variety protection certificate and shall record it in
the National Register of Protected Plant Varieties.
Article 184 Complaints about the grant
or the refusal to grant a plant variety protection certificate
1. The registrant and any third party shall have the right
to lodge a complaint about the decision or the refusal to grant a plant variety
protection certificate.
2. The resolution of complaints about a decision or refusal
to grant a plant variety protection certificate shall comply with the law on
complaints and denunciations.
Chapter XIV
CONTENTS OF AND
LIMITATIONS ON RIGHTS TO PLANT VARIETIES
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Article 185. Rights of breeders of plant varieties
The breeder of a plant variety shall have the following
rights:
1. To have his or her name as the breeder recorded in the
plant variety protection certificate, the National Register of Protected Plant
Varieties, and published documents on the plant variety.
2. To receive remuneration pursuant to the provisions of
clause 1(a) of article 191 of this Law.
Article 186. Rights of protection
certificate holders
1. A protection certificate holder shall have the right to
exercise or authorize others to exercise the following rights to reproductive
materials of a protected plant variety:
(a) To conduct production or propagation;
(b) To process the reproductive materials for the
purpose of propagation;
(c) To offer the reproductive materials for sale;
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(dd) To export the reproductive materials;
(e) To import the reproductive materials;
(g) To stock reproductive materials for the purposes
specified in sub-clauses (a) to (e) inclusive of this clause.
2. To prevent others from using the plant variety according
to the provisions of article 188 of this Law.
3. To bequeath or transfer the rights to the plant variety
according to the provisions of Chapter XV of this Law.
Article 187. Extension of rights of
protection certificate holders
The rights of a protection certificate holder shall be
extended to the following plant varieties:
1. Plant varieties which originate from the protected plant
variety, except where such protected plant variety itself originates from
another protected plant variety.
2. A plant variety shall be deemed to originate from a
protected plant variety if such plant variety still retains the expression of the
essential characteristics resulting from the genotype or combination of
genotypes of the protected variety, except for differences resulting from an
impact on the protected variety.
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4. Plant varieties, the production of which requires the
repeated use of the protected plant variety.
Article 188. Acts constituting an
infringement of the right to a plant variety
The following acts shall be deemed an infringement of the rights
of a protection certificate holder:
1. Exploiting or using rights of such protection certificate
holder without his or her permission.
2. Using a plant variety denomination which is identical or
similar to a denomination protected for a plant variety of the same species or
a species closely linked to the protected plant variety.
3. Using a protected plant variety without paying
remuneration in accordance with article 189 of this Law.
Article 189. Provisional rights to
plant varieties
1. Provisional rights to a plant variety means rights of the
registrant for protection of such plant variety, which arise from the date of
publication of the application for registration for protection until the date
of grant of the plant variety protection certificate. Where a plant variety
protection certificate is not granted for such plant variety, the protection
registrant shall not [no longer] have these provisional rights.
2. Where the registrant is aware of the fact that the plant
variety registered for protection is being used by another person for
commercial purposes, the plant variety protection registrant may notify in
writing such user of the fact that an application for registration for
protection of the plant variety has been filed, clearly specifying the filing
date and the date of publication of such application, so that the user may
either stop using or continue using the plant variety.
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Section 2. LIMITATIONS ON RIGHTS TO
PLANT VARIETIES
Article 190. Limitations on rights
of plant variety protection certificate holders
1. The following acts shall not be deemed an infringement of
the right to a protected plant variety:
(a) Using the plant variety for personal and
non-commercial purposes;
(b) Using the plant variety for cross-breeding for
scientific research purposes;
(c) Using the plant variety to create new plant
varieties distinct from the protected plant varieties;
(d) Using harvested materials of the protected plant
variety by an individual production household for self-propagation and
cultivation in the next season on the land area belonging to such household.
2. The right to a plant variety shall not be applicable to
acts related to materials of the protected plant variety which are sold on or
otherwise brought onto the domestic or overseas market by the protection
certificate holder or his or her licensee, except for the following acts:
(a) Acts relating to further propagation of such plant
variety;
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Article 191. Obligations of
protection certificate holders and breeders of plant varieties
1. A protection certificate holder shall have the following
obligations:
(a) To pay remuneration to the breeder of the plant
variety as agreed upon; in the absence of such agreement, the remuneration
level must comply with the provisions of law;
(b) To pay the fee for maintenance of validity of the
plant variety protection certificate in accordance with regulations;
(c) To preserve the protected plant variety, to supply
reproductive materials of the protected plant variety to the State
administrative body for rights to plant varieties, and to maintain the
stability of the protected plant variety in accordance with regulations.
2. The breeder of a plant variety shall be obliged to help
the protection certificate holder to maintain reproductive materials of the
protected plant variety.
Chapter XV
TRANSFER OF RIGHTS TO
PLANT VARIETIES
Article 192. Licensing of plant
varieties
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2. Where the right to use a plant variety is under
co-ownership, the licensing of such plant variety to another person must be
consented to by all co-owners.
3. The licensing of a plant variety must be effected in the
form of a written contract.
4. A plant variety licensing contract must not contain terms
which unreasonably restrict the rights of the licensee, particularly
restrictions neither deriving from nor aimed at protecting the rights of the
licensor to the licensed plant variety.
Article 193. Rights of parties to a
licensing contract
1. The licensor shall have the right to permit or not permit
the licensee to sub-license to a third party.
2. The licensee shall have the following rights:
(a) To license the use right to a third party if so
permitted by the licensor;
(b) To request the licensor to take necessary and
appropriate measures to prevent infringement by a third party causing loss and
damage to the licensee;
(c) To take necessary measures to prevent a third
party's infringements if, within a time-limit of three months from the date of
receipt of the request stipulated in sub-clause (b) above, the licensor fails
to act as requested.
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1. Assignment of rights to a plant variety means the
transfer by the plant variety protection certificate holder to the assignee of
all rights to such plant variety. The assignee shall become the plant variety
protection certificate holder from the date of registration of the assignment
contract with the State administrative body for rights to plant varieties in
accordance with procedures stipulated by law.
2. Where rights to a plant variety are under joint
ownership, the assignment of such rights to another person must be consented to
by all co-owners.
3. The assignment of rights to a plant variety must be
effected in the form of written contract.
Article 195. Bases and conditions
for compulsory licensing of plant varieties
1. In the following cases, the rights to use a plant variety
may be licensed to another organization or individual pursuant to a decision of
the competent State body defined in clause 1 of article 196 of this Law without
permission from the protection certificate holder or his or her exclusive
licensee (hereinafter referred to as the holder of the exclusive right to use
the plant variety):
(a) The use of such plant variety is for the public
interest and non-commercial purposes, or in service of national defence and
security, food security and nutrition of the people or to meet other urgent
social needs;
(b) The persons having the need and capacity to use such
plant variety fail to reach agreement with the holder of the exclusive right to
use such plant variety on the entry into a licensing contract though they have
made best efforts within a reasonable period of time to negotiate a
satisfactory price and commercial conditions;
(c) The holder of the exclusive right to use such
plant variety is deemed to have conducted anti- competitive practices
prohibited by the law on competition.
2. The holder of the exclusive right to use a plant variety
may request termination of the use right when the bases for licensing
stipulated in clause 1 of this article cease to exist and are unlikely to
recur, provided that termination of such use right will not be prejudicial to
the licensee.
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(a) Such licensed use right is non-exclusive;
(b) Such licensed use right is limited within a scope
and duration sufficient to attain the licensing objective, and is largely for
the domestic market except for the case stipulated in sub-clause (c) of clause
1 of this article;
(c) The licensee must not assign the use right to
another person, except where the assignment is made together with the transfer
of the business establishment of the licensee, and the licensee must not
sub-license to others;
(d) The licensee must pay adequate compensation to the
holder of the exclusive right to use the plant variety, taking into account the
economic value of such use right in each specific case and in compliance with
the compensation rate bracket promulgated by the Government.
4. The Government shall specify cases of compulsory
licensing of plant varieties and the compensation rate bracket stipulated in
sub-clause (d) of clause 3 of this article.
Article 196. Authority and
procedures for licensing of plant varieties pursuant to compulsory decisions
1. The Ministry of Agriculture and Rural Development shall
issue decisions on licensing of plant varieties in the domains over which such
Ministry exercises State management on the basis of considering licensing
requests for the cases stipulated in clause 1 of article 195 of this Law.
Ministries and ministerial equivalent bodies shall, after
consulting the opinion of the Ministry of Agriculture and Rural Development,
issue decisions on licensing of plant varieties in domains under their
respective management for the cases stipulated in clause 1 of article 195 of
this Law.
2. Plant variety licensing decisions must set the use scope
and conditions in compliance with the provisions of clause 3 of article 195 of
this Law.
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4. Decisions on licensing of plant varieties or refusal to
license plant varieties may be the subject of complaints lodged or lawsuits
instituted in accordance with law.
5. The Government shall provide detailed guidelines on the
procedures for compulsory licensing of plant varieties as stipulated in this
article.
Article 197. Rights of protection
certificate holders in cases of compulsory licensing of plant varieties
A protection certificate holder subject to compulsorily
licensing of the plant variety shall have the following rights:
1. To receive compensation corresponding to the economic
value of the licensed use right or equivalent to the licensing price under a
contract with an equivalent scope and term.
2. To request the State administrative body for rights to
plant varieties to amend, terminate validity of or invalidate the compulsory
licensing when the conditions for such compulsory licensing no longer exist and
when such amendment, termination of validity or invalidation will not cause
loss and damage to the licensees who derived their right from the compulsory
licensing.
PART V
PROTECTION OF
INTELLECTUAL PROPERTY RIGHTS
Chapter XVI
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Article 198. Right to
self-protection
1. An intellectual property right holder shall have the
right to apply the following measures to protect the intellectual property
rights of such holder:
(a) To apply technological measures to prevent acts of
infringement of its intellectual property rights;
(b) To request any organization or individual who
commits an act of infringement of the intellectual property rights of the
holder to terminate such act, make a public apology or rectification, and pay
damages;
(c) To request the competent State body to deal with
acts of infringement of its intellectual property rights in accordance with the
provisions of this Law and other relevant laws;
(d) To initiate a lawsuit at a court or a claim at an
arbitration centre to protect the legitimate rights and interests of the
holder.
2. Organizations and individuals who suffer loss and damage
caused by acts of infringement of intellectual property rights or who discover
acts of infringement of intellectual property rights which cause loss and
damage to consumers or society shall have the right to request the competent
State body to deal with such acts in accordance with the provisions of this Law
and other relevant laws.
3. Organizations and individuals who suffer loss and damage
or who are likely to suffer loss and damage caused by acts of unfair
competition shall have the right to request the competent State body to apply
the civil remedies stipulated in article 202 of this Law and the administrative
remedies stipulated in the law on competition.
Article 199. Remedies when dealing
with acts of infringement of intellectual property rights
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2. In necessary cases, the competent State body may apply
provisional urgent measures, measures to control intellectual property related
imports and exports, preventive measures and measures to secure enforcement of
an administrative penalty in accordance with the provisions of this Law and
other relevant laws.
Article 200. Authority for dealing
with acts of infringement of intellectual property rights
1. The following bodies shall, within the scope of their
respective duties and powers, have authority to deal with acts of infringement
of intellectual property rights: courts, inspectorates, market management
offices, customs offices, police offices and people's committees at all levels.
2. The application of civil and criminal remedies shall fall
within the authority of courts. In necessary cases, courts may apply
provisional urgent measures stipulated by law.
3. The application of administrative remedies shall fall
within the authority of inspectorates, police offices, market management
offices, customs offices and people's committees at all levels. In necessary
cases, such bodies may apply preventive measures stipulated by law or measures
to secure payment of administrative fines stipulated by law.
4. The application of measures to control intellectual
property related imports and exports shall fall within the authority of customs
offices.
Article 201. Intellectual property
assessment
1. Intellectual property assessment means the use by
competent organizations or individuals of their professional knowledge and
expertise to make an assessment of and conclusions on matters related to cases
of infringement of intellectual property rights.
2. A State body competent to deal with acts of infringement
of intellectual property rights shall have the right to arrange for an
intellectual property assessment while dealing with a case for which such body
has accepted jurisdiction.
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4. The Government shall provide detailed guidelines on
activities being intellectual property assessment.
Chapter XVII
APPLICATION
OF CIVIL REMEDIES IN DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS
Article 202. Civil remedies
Courts may apply the following civil remedies in dealing
with organizations and individuals who have committed acts of infringement of
intellectual property rights:
1. Compulsory termination of the infringing acts.
2. Compulsory public apology and rectification.
3. Compulsory performance of civil obligations.
4. Compulsory payment of damages for loss.
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Article 203. Burden of proof of
litigants
1. The plaintiff and the defendant to a lawsuit regarding
infringement of intellectual property rights shall bear the burden of proof
stipulated in article 79 of the Civil Procedure Code and this article.
2. The plaintiff must prove that the plaintiff is the
intellectual property right holder by leading one of the following forms of
evidence:
(a) Copies of the copyright registration certificate,
related right registration certificate or protection title; or an extract of
the National Register of Copyright and Related Rights, the National Register of
Industrial Property or the National Register of Protected Plant Varieties;
(b) Necessary evidence proving the basis for
establishment of copyright or related rights in the absence of a copyright
registration certificate, related right registration certificate; necessary
evidence proving the right to a trade secret, trade name or well known mark;
(c) Copy of the license contract for an intellectual
property object where the use right is licensed pursuant to a contract.
3. The plaintiff shall bear the burden of proving acts of
infringement of intellectual property rights or acts of unfair competition.
4. In a lawsuit regarding infringement of the right to an
invention which is a production process, the defendant shall bear the burden of
proving that the product of the defendant was produced by a process other than
the protected process in the following cases:
(a) The product made by the protected process is new;
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5. Where a party to a lawsuit regarding infringement of
intellectual property rights can prove that appropriate evidence proving such
party's claim is under the control of the other party and is therefore
inaccessible, the former party shall have the right to request the court to
compel the latter party to produce such evidence.
6. When making a claim for compensation for damages for
loss, the plaintiff must prove the plaintiff's actual loss and damage and
specify the basis for determining the amount of compensation for damages in
accordance with article 205 of this Law.
Article 204. Principles for
determining loss and damage caused by an infringement of intellectual property
rights
1. Loss and damage caused by acts of infringement of
industrial property rights shall comprise:
(a) Material loss and damage including property loss,
decrease in income and profit, loss of business opportunity, and reasonable
expenses for mitigating and remedying the material damage;
(b) Spiritual loss and damage including damage to
honour, dignity, prestige, reputation and other spiritual loss caused to
authors of literary, artistic and scientific works; to performers; to authors
of inventions, industrial designs, layout designs; and to breeders of plant
varieties.
2. The extent of damage shall be determined on the basis of
actual losses suffered by intellectual property right holders due to acts of
infringement of intellectual property rights.
Article 205. Bases for determining
amount of damages for loss and damage caused by an infringement of intellectual
property rights
1. Where the plaintiff proves that an act of infringement of
intellectual property rights has caused the plaintiff material damage, the
plaintiff shall have the right to request the court to decide the amount of damages
on one of the following bases:
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(b) The price of the licensing of an intellectual
property object on the assumption that the defendant was licensed by the
plaintiff to use that object under a license contract within a scope corresponding
to the act of infringement which was committed;
(c) Where it is impossible to determine the amount of
damages for material damage on the bases stipulated in sub-clause (a) and (b)
of this clause, such amount of damages shall be set by the court depending on
the extent of loss but must not exceed five hundred million (500,000,000) dong.
2. Where a plaintiff proves that the act of infringement of
intellectual property rights caused the plaintiff spiritual damage, the
plaintiff shall have the right to request the court to decide on the amount of
damages depending on the extent of loss, to range from five million (5,000,000)
to fifty million (50,000,000) dong.
3. In addition to the amount of damages stipulated in
clauses 1 and 2 of this article, an industrial property right holder shall also
have the right to request the court to compel the organization or individual
who have committed the act of infringement of industrial property rights to pay
reasonable costs of engaging a lawyer.
Article 206. Right to request the
court to apply provisional urgent measures
1. Upon or after the initiation of a lawsuit, an
intellectual property right holder shall have the right to request the court to
apply provisional measures in the following cases:
(a) There is a danger of irreparable damage to such
intellectual property right holder;
(b) Goods suspected of infringement of intellectual
property rights or evidence related to the act of infringement of industrial
property rights are likely to be dispersed or destroyed unless they are
protected in time.
2. A court may make a decision applying provisional urgent
measures at the request of an industrial property right holder as stipulated in
clause 1 of this article before hearing the party subject to such measures.
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1. The following provisional urgent measures may be applied
to goods suspected of infringing intellectual property rights or to raw
materials and materials, or facilities of production or trading of such goods:
(a) Retention;
(b) Seizure;
(c) Sealing; prohibiting any alteration of the
original state; prohibiting any movement;
(d) Prohibiting transfer of ownership.
2. Other provisional urgent measures may be applied in
accordance with the Civil Procedure Code.
Article 208. Obligations of
applicants for provisional urgent measures
1. Applicants for provisional urgent measures shall bear the
burden of proving their right provided for in clause 1 of article 206 of this
Law by producing the documents and evidence stipulated in clause 2 of article
203 of this Law.
2. An applicant for provisional urgent measures shall be
obliged to pay compensation for loss caused to a person subject to such
measures in a case where the latter is found not to have infringed industrial
property rights. To secure the performance of this obligation, an applicant for
provisional urgent measures shall deposit security in one of the following
forms:
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(b) A deed of guarantee issued by a bank or other
credit institution.
Article 209. Cancellation of
application of provisional urgent measures
1. The court shall issue a decision cancelling provisional
urgent measures previously applied in the case stipulated in clause 1 of
article 122 of the Civil Procedure Code or in a case where the person subject
to such measures proves that such application was not well founded.
2. In a case of cancellation of a provisional urgent
measure, the court shall consider refunding the applicant the security
stipulated in clause 2 of article 208 of this Law. Where a request for the
application of a provisional urgent measure was not well founded thus causing
loss to the person subject to such measure, the court shall compel the
applicant to pay compensation for such loss.
Article 210. Authority and procedures
for application of provisional urgent measures
The authority and procedures for application of provisional
urgent measures shall be implemented in accordance with the provisions of
Chapter VIII, Part One of the Civil Procedure Code.
Chapter XVIII
DEALING WITH
INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF ADMINISTRATIVE
AND CRIMINAL MEASURES; CONTROL OF INTELLECTUAL PROPERTY RELATED IMPORTS AND
EXPORTS
Section 1. DEALING WITH
INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF ADMINISTRATIVE
AND CRIMINAL MEASURES
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1. The following acts of infringement of industrial property
rights shall be subject to administrative penalties:
(a) Acts of infringement of intellectual property
rights which cause loss and damage to consumers or society;
(b) Failure to terminate an act of infringement of
intellectual property rights although the intellectual property right holder has
issued a written notice requesting termination of such act;
(c) Producing, importing, transporting or trading in
intellectual property counterfeit goods stipulated in article 213 of this Law,
or assigning others to do so;
(d) Producing, importing, transporting or trading in
articles bearing a mark or geographical indication which is identical or
confusingly similar to a protected mark or geographical indication, or
assigning others to do so.
2. The Government shall specify acts of infringement of intellectual
property rights which shall be subject to administrative penalties, the forms
and levels of penalties, and the procedures for applying same.
3. Any organization or individual who commits an act of
unfair competition in intellectual property shall be subject to an
administrative penalty in accordance with the law on competition.
Article 212. Acts of infringement of
industrial property rights which shall be subject to criminal penalties
Any individual who commits an act of infringement of
intellectual property rights involving a criminal element shall be criminally
prosecuted in accordance with the criminal law.
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1. Intellectual property counterfeit goods regulated in this
Law comprise goods bearing counterfeit marks and goods bearing counterfeit
geographical indications (hereinafter referred to as counterfeit mark goods)
defined in clause 2 of this article and pirated goods defined in clause 3 of
this article.
2. Counterfeit mark goods means goods or their packages
bearing a mark or sign which is identical with or indistinguishable from a mark
or geographical indication currently protected for those very goods, without
permission from the mark owner or organization managing the geographical
indication.
3. Pirated goods means copies made without permission from
the copyright holder or related right holder.
Article 214. Forms of administrative
penalty and measures for remedying consequences
Any organization or individual who commits an act of
infringement of intellectual property rights defined in clause 1 of article 211
of this Law shall be compelled to terminate such act and shall be subject to
one of the following principal penalties:
(a) A caution;
(b) A monetary fine.
2. Any organization or individual who infringes intellectual
property rights may, depending on the nature and seriousness of the
infringement, also be subject to one of the following additional penalties:
(a) Confiscation of intellectual property counterfeit
goods, raw materials and materials, and facilities used mainly for production
or trading of such intellectual property counterfeit goods;
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3. In addition to the penalties stipulated in clauses 1 and
2 of this article, any organization or individual who infringes intellectual
property rights may also be subject to one or more of the following measures
for remedying consequences:
(a) Compulsory destruction, distribution or use for
non-commercial purposes of intellectual property counterfeit goods as well as
raw materials and materials, and facilities used mainly for production or
trading of such intellectual property counterfeit goods, provided that such
destruction, distribution or use will not affect the exploitation of rights by
intellectual property right holders;
(b) Compulsory transportation out of the territory of
Vietnam of transit goods infringing intellectual property rights or compulsory
re-export of intellectual property counterfeit goods and imported materials and
raw materials, and facilities used mainly for production or trading of such
intellectual property counterfeit goods after the infringing elements have been
removed from such goods.
4. The amount of the monetary fine stipulated in sub-clause
(b) of clause 1 of this article shall be set at least equal to the value of the
detected infringing goods but shall not exceed five times such value.
The Government shall issue detailed regulations on the
method of determining the value of infringing goods.
Article 215. Preventive measures
and/or measures to secure enforcement of administrative penalties
1. In the following cases, organizations and individuals
shall have the right to request the competent body to apply preventive measures
and/or measures to secure enforcement of the administrative penalties
stipulated in clause 2 of this article:
(a) An act of infringement of intellectual property
rights is likely to cause serious loss and damage to consumers or society;
(b) Material evidence of the infringement is likely to
be dispersed or there are indications that the offender will evade
responsibility;
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2. Preventive measures and/or measures to secure enforcement
of administrative penalties which may be applied in accordance with
administrative procedures to acts of infringement of intellectual property
rights shall comprise:
(a) Temporary detention of persons;
(b) Temporary custody of infringing goods, material
evidence and facilities;
(c) Body searches;
(d) Searches of means of transport and objects;
searches of places where infringing goods, material evidence and facilities are
hidden;
(dd) Other administrative preventive measures in
accordance with the law on dealing with administrative breaches.
Section 2. CONTROL OF INTELLECTUAL
PROPERTY RELATED IMPORTS AND EXPORTS
Article 216. Measures to control
intellectual property related imports and exports
1. Measures to control intellectual property related imports
and exports shall comprise:
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(b) Inspection and supervision to detect goods showing
signs of infringing intellectual property rights.
2. Suspension of customs procedures for goods suspected of
infringing intellectual property rights means a measure taken at the request of
an intellectual property right holder in order to collect information and
evidence on the goods consignment in question so that the intellectual property
right holder may exercise the right to request that the infringing act be dealt
with and to request the application of provisional urgent measures, preventive
measures and/or measures to secure enforcement of administrative penalties.
3. Inspection and supervision to detect goods showing signs
of infringing intellectual property rights means a measure taken at the request
of an intellectual property right holder in order to collect information for
the exercise of the right to request suspension of customs procedures.
4. If any intellectual property counterfeit goods within the
meaning of article 213 of this Law are found during the course of application
of the measures stipulated in clauses 2 and 3 of this article, the customs
office shall have the right and responsibility to apply administrative remedies
to deal with such goods in accordance with articles 214 and 215 of this Law.
Article 217. Obligations of
applicants for measures to control intellectual property related imports and
exports
1. An applicant for application of a measure to control
intellectual property related imports or exports shall have the following
obligations:
(a) To prove that the applicant is an intellectual
property right holder by producing the documents and evidence stipulated in
clause 2 of article 203 of this Law;
(b) To supply information sufficient to identify goods
suspected of infringing intellectual property rights or to detect goods showing
signs of infringing intellectual property rights;
(c) To file a written request with the customs office
and to the pay fees and charges stipulated by law;
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2. In order to secure the performance of the obligation
stipulated in sub-clause (d) of clause 1 of this article, an applicant shall
deposit security in one of the following forms:
(a) A sum of money equal to twenty (20) per cent of
the value of the goods consignment subject to the application of the measure of
suspension of customs procedures, or at least twenty million (20,000,000) dong
where it is impossible to value such goods;
(b) A deed of guarantee issued by a bank or other
credit institution.
Article 218. Procedures for
application of the measure of suspension of customs procedures
1. When an applicant for the suspension of customs
procedures has fulfilled the obligations stipulated in article 217 of this Law,
the customs office shall issue a decision suspending customs procedures with
regard to the goods consignment in question.
2. The duration of suspension of customs procedures shall be
ten (10) working days from the date of issuance of the suspension decision.
Where the applicant has justifiable reasons, this duration may be extended but
must not exceed twenty (20) working days, provided that the applicant deposits
the security stipulated in clause 2 of article 217 of this Law.
3. Upon expiry of the duration stipulated in clause 2 of
this article, if the applicant does not initiate civil proceedings and the
customs office does not issue a decision accepting jurisdiction to deal with
the case in accordance with administrative procedures as an administrative
breach by the importer or exporter of the goods, then the customs office shall
have the following responsibilities:
(a) To continue customs procedures for the goods
consignment in question;
(b) To compel the applicant to compensate for all loss
and damage caused to the owner of the goods consignment due to the unreasonable
request for suspension of customs procedures, and to pay expenses for
warehousing and preservation of goods as well as other expenses incurred by the
customs office and any related body, organization or individual in accordance
with the law on customs;
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Article 219. Inspection and
supervision to detect goods showing signs of infringement of intellectual
property rights
Where an intellectual property right holder requests
inspection and supervision to detect goods showing signs of infringement of
intellectual property rights and the customs office then finds such a goods
consignment, the customs office shall promptly notify the applicant thereof. If
the applicant does not request the suspension of customs procedures with regard
to the offending goods consignment and the customs office does not issue a
decision on consideration of application of the administrative penalties
stipulated in articles 214 and 215 of this Law within three working days from
the date of notification, then the customs office must continue carrying out
customs procedures for the goods consignment in question.
PART VI
IMPLEMENTING
PROVISIONS
Article 220. Transitional provisions
1. Copyright and related rights protected pursuant to legal
instruments which were effective before the effective date of this Law shall
continue to be protected pursuant to this Law if they remain within the term of
protection on the effective date of this Law.
2. Applications for registration of copyright, related
rights, inventions, utility solutions, industrial designs, marks, appellations
of origin of goods, layout designs or plant varieties which were filed with the
competent bodies before the effective date of this Law shall continue to be processed
in accordance with the provisions of the legal instruments effective at the
time of filing of such applications.
3. All rights and obligations conferred by protection titles
granted according to the provisions of law effective before the effective date
of this Law and procedures for maintenance, renewal, amendment, licensing,
ownership assignment and settlement of disputes relating to such protection
titles shall be subject to the provisions of this Law, except for grounds for
invalidation of protection titles which shall only be subject to the provisions
of legal documents effective at the time of grant of such protection titles.
4. Trade secrets and trade names which existed and were
protected pursuant to Decree No. 54-2000- ND-CP of the Government dated 3
October 2000 on protection of industrial property rights with respect to trade
secrets, geographical instructions and trade names and protection of rights to
fight against unfair competition relating to industrial property shall continue
to be protected under this Law.
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Article 221. Effectiveness
This Law shall be of full force and effect as of 1 July
2006.
Article 222. Implementing guidelines
The Government and the Supreme People's Court shall provide
detailed regulations and guidelines for the implementation of this Law.
This Law was passed by Legislature XI of the National
Assembly of the Socialist Republic of Vietnam at its 8th session on 29 November
2005.
CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Van An