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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence
- Freedom - Happiness
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No.
105/2006/ND-CP
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Hanoi,
September 22, 2006
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DECREE
DETAILING
AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON
INTELLECTUAL PROPERTY ON PROTECTION OF INTELLECTUAL PROPERTY RIGHTS AND ON
STATE MANAGEMENT OF INTELLECTUAL PROPERTY
THE
GOVERNMENT
Pursuant to the December 25, 2001 Law on Organization
of the Government;
Pursuant to the November 11, 2005 Law on Intellectual Property;
At the proposal of the Minister of Science and Technology,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Scope of regulation
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Article 2.- Subjects of application
This Decree applies to Vietnamese organizations and
individuals and foreign organizations and individuals that have their
intellectual property rights protected or commit acts of infringement of
intellectual property rights under the Law on Intellectual Property.
Article 3.- Interpretation of
terms
In this Decree, the terms below are construed as follows:
1. Act of infringement means an act of infringement of
intellectual property rights.
2. Handling of an act of infringement means handling of an
act of infringement of intellectual property rights.
3. Infringer means an organization or individual that
commits an act of infringement of intellectual property rights.
4. Element means a product, a process or a part or a
component of a product or a process.
5. Infringing element means an element created from an act
of infringement.
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7. Examined subject matter means a subject matter that is
suspected and examined to conclude whether it is an infringing object or not.
8. Petition for handling of infringement means a written
request for application of measures to handle an act of infringement.
Article 4.- Application of civil,
administrative and criminal measures to protect intellectual property rights
Depending on their nature and severity, acts of
infringement may be handled by civil, administrative or criminal measures in
accordance with the provisions of Part Five (Protection of Intellectual
Property Rights) of the Law on Intellectual Property and the following
provisions:
1. Civil measures are applied to handle acts of
infringement at the request of intellectual property right holders,
organizations or individuals that suffer from the damage caused by those acts,
even when those acts have been or are being handled by administrative or
criminal measures.
The procedures for request for application of civil
measures and the competence, order and procedures for application of civil
measures shall comply with the provisions of law on civil procedures.
2. Administrative measures are applied to handle acts of
infringement falling into one of the cases specified in Article 211 of the Law
on Intellectual Property, at the request of intellectual property right
holders, organizations or individuals that suffer from the damage caused by
those acts, organizations or individuals that detect those acts, or when those
acts are detected by competent bodies.
The sanctioning forms and levels, the competence and
procedures for sanctioning acts of infringement and remedies shall comply with
the provisions of the Law on Intellectual Property and the law on sanctioning
of administrative violations in the domain of copyright and related rights,
industrial property rights and rights to plant varieties.
3. Criminal measures are applied to handle acts of
infringement that contain criminal elements in accordance with the provisions
of the Penal Code.
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Chapter II
DETERMINATION OF ACTS, NATURE AND EXTENT OF
INFRINGEMENT,
DETERMINATION OF DAMAGE
Section I.
Bases for determination of acts, nature
and extent of infringement
Article 5.- Determination of acts
of infringement
An examined act shall be regarded as an act of
infringement of intellectual property rights specified in Articles 28, 35, 126,
127, 129 and 188 of the Law on Intellectual Property when all the following
bases exist:
1. The examined subject matter is a protected one.
2. The examined subject matter contains an infringing
element.
3. The person that takes the examined act is neither the
intellectual property right holder nor any person permitted by law or a
competent agency under Articles 25, 26, 32, 33, Clauses 2 and 3 of Article 125,
Article 133, Article 134, Clause 2 of Article 137, Articles 145, 190 and 195 of
the Law on Intellectual Property.
4. The examined act takes place in Vietnam.
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Article 6.- Bases for
determination of protected subject matters
1. The determination of a protected subject matter shall
be based on the examination of documents and evidence proving the bases for
emergence and establishment of the rights specified in Article 6 of the Law on
Intellectual Property.
2. For intellectual property rights that have been
registered with competent agencies, the protected subject matters shall be
determined on the basis of the registration certificates, protection titles and
other documents accompanying such certificates and protection titles.
3. For copyright and rights of performers, rights of
producers of phonograms or video recordings, rights of broadcasting
organizations that are not registered with competent agencies, these rights
shall be determined on the basis of the original exemplar of the work, the
first fixation of the performance, phonogram, video recording, broadcast and
relevant documents, if any.
When the original exemplar of the work, the first fixation
of the performance, phonogram, video recording, broadcast and relevant
documents no longer exist, copyright or rights of performers, of producers of
phonograms or video recordings or of broadcasting organizations shall be deemed
to be true on the basis of information that is usually shown on lawfully
published copies on authors, performers, producers of phonograms or video
recordings or broadcasting organizations and on the subject matters of
copyright or related rights.
4. For trade names, the protected subject matters shall be
determined on the basis of their using process and the sector and territory in
which such trade names are used.
5. For business secrets, the protected subject matters
shall be determined on the basis of documents expressing the contents and
nature of the business secrets and explanations and descriptions of relevant
measures to keep them secret.
6. For well-known marks, the protected subject matters
shall be determined on the basis of documents and evidence expressing the
reputation of the marks according to the criteria defined in Article 75 of the
Law on Intellectual Property.
Article 7.- Infringing elements of
copyright and related rights
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a/ Illegally made copy of a work;
b/ Illegally made derivative work;
c/ Work with the forged name and signature of the author,
impersonation of the author or appropriation of copyright;
d/ Illegally recited, duplicated or incorporated part of a
work;
e/ Product with an illegally deactivated technical device
used for copyright protection.
Products containing an infringing element defined in this
Clause shall be regarded as copyright-infringing products.
2. An infringing element of related rights may take one of
the following forms:
a/ Illegally made first fixation of a performance;
b/ Illegally made copy of the fixation of a performance,
illegally made copy of a phonogram, video recording or broadcast;
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d/ Product with an illegally deactivated technical device
used for related rights protection; the fixation of a performance from which
related rights management information has been illegally disengaged or
modified.
Products containing an infringing element defined in this
Clause shall be regarded as related rights-infringing products.
3. The basis for determination of an infringing element of
copyright shall be the scope of copyright protection determined according to
the forms of expression of the original work. For determination of infringing
elements of derivative works, the basis shall be the characters, images; ways
of expression of characters’ personalities, images and circumstances of the original
work.
4. The basis for determining an infringing element of
related rights shall be the scope of related rights protection already
determined according to the forms of expression of the first fixation of the
performance, phonogram, video recording or broadcast.
5. In order to determine whether a copy or a work (or the
fixation of a performance, phonogram, video recording or broadcast) constitutes
an infringing element of copyright or related rights, it is required to compare
the copy or work with the original exemplar of the work (the first fixation of
a performance, phonogram, video recording or broadcast) or the original work.
A copy of a work or the fixation of a performance,
phonogram, video recording or broadcast shall be regarded as an infringing
element in the following cases:
a/ The copy is a duplicate of part or the whole of a
protected work, the first fixation of a protected performance, phonogram, video
recording or broadcast of another person;
b/ The work (part of the work) is part or the whole of a
protected work, the first fixation of a protected performance, phonogram, video
recording or broadcast of another person;
c/ The work or part of the work contains a character,
image, way of expression of the personality of a character or image or
circumstances of a protected work of another person.
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Article 8.- Infringing elements of
inventions
1. An infringing element of an invention may take one of
the following forms:
a/ Product or part (component) of a product that is
identical or similar to a product or part (component) of a product being
protected as an invention;
b/ Process that is identical or similar to a process being
protected as an invention;
c/ A product or part (component) of the product produced
through a process that is identical or similar to a process being protected as
an invention.
2. The basis for determination of an infringing element of
an invention is the scope of invention protection stated in the invention or
utility solution patent.
Article 9.- Infringing elements of
layout designs of semiconductor integrated circuits
1. An infringing element of a layout design
of a semiconductor integrated circuit may take one of the following forms:
a/ Layout design created through illegally copying a
protected layout design;
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c/ Product or part (component) of a product in which a
semiconductor integrated circuit defined at Point b of this Clause is
incorporated.
2. The basis for determination of an infringing element of
a lay-out design of semiconductor integrated circuit is the scope of protection
of rights to lay-out designs stated in the certificates of registration of the
lay-out designs of semiconductor integrated circuits.
Article 10.- Infringing elements
of industrial designs
1. An infringing element of an industrial design is a
product or part of a product of which the external appearance is
insignificantly different from that of a protected industrial design.
2. The basis for determination of an infringing element of
an industrial design is the scope of protection of the industrial design stated
in the industrial design patent.
3. A product or part of a product shall be regarded as an
infringing element of an industrial design in the following cases:
a/ The examined product or part of the examined product,
even with an industrial design patent, contains a combination of design
features that create an overall combination being a copy or in substance a copy
(with virtually indistinguishable difference) of a protected industrial design
of another owner with the permission of such owner;
b/ The examined product or part of the examined product
contains a combination of design features that create an overall combination
being a copy or in substance a copy of the protected industrial design or at
least one product within a set of products of another person.
4. The industrial design of a product (part of a product)
shall only be regarded as insignificantly different from a protected one
defined in Clause 1 of this Article when it is a copy or in substance a copy of
the protected one.
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1. An infringing element of a mark is a sign affixed on
goods, their packages, means of services, transaction documents, signboards,
means of advertising or other means of business that is identical or
confusingly similar to the protected mark.
2. The basis for determination of an infringing element of
a mark is the scope of protection of the mark including the mark specimen and a
list of goods and services in the mark registration certificate or the
certificate of protection in Vietnam
of internationally registered mark.
3. In order to determine whether a suspected sign is an
infringing element of a mark, it is required to compare such sign to the mark
and at the same time to compare goods or services bearing such sign to the
protected products or services. An infringing element can only be confirmed if
the following two conditions are fully met:
a/ The suspected sign is identical or confusingly similar
to the mark within the scope of protection; where a sign is regarded as
identical to a protected mark if it has the same composition and method of
presentation (including the colors); a sign is regarded as confusingly similar
to a protected mark if it has several features identical or similar to those of
the protected mark to such an extent that it is not easy to distinguish between
them in terms of composition, the way of pronunciation, the way of phonetic
transcription of signs, letters, meaning, the method of presentation and
colors, thereby causing confusion to consumers in selecting goods or services
bearing the mark;
b/ Goods or services bearing the suspected sign that is
identical or similar in substance to, have a relationship in terms of functions
and utility with, and have the same distribution channel with, the protected
goods or services.
4. For well-known marks, a suspected sign shall be
regarded as an infringing element if:
a/ The suspected sign meets the condition specified at
Point a, Clause 3 of this Article;
b/ Goods or services bearing the suspected sign meet the
condition specified at Point b, Clause 3 of this Article or goods or services
are not identical, similar or related to the goods or services bearing the
well-known mark but are capable of misleading customers as to the origin of
services or goods or create wrong impressions about the relationship between
the producer or trader of such goods or services and the owner of the well-known
mark.
5. When a product or service bears a sign that is
identical to or is insignificantly different in terms of overall composition
and method of presentation from the protected mark of a product or service of
the same type within the scope of protection, it shall be regarded as a
counterfeit mark goods as provided for in Article 213 of the Law on
Intellectual Property.
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1. An infringing element of a geographical indication is
expressed in the form of a sign affixed on goods, their packages, means of
services, transaction documents, signboards, means of advertising and other
means of business, which is identical or confusingly similar to the protected
geographical indication.
2. The basis for determination of an infringing element of
a geographical indication is the scope of protection of the geographical
indication stated in the decision on registration of the geographical
indication.
3. In order to determine whether a suspected sign is an
infringing element of a geographical indication, it is required to compare such
sign to the geographical indication and to compare products bearing such sign
to products bearing the protected geographical indication on the bases:
a/ The suspected sign is identical or confusingly similar
to the geographical indication under the scope of protection; where a sign is
regarded as identical to a protected geographical indication if it has the same
composition of words, including the way of pronunciation, the way of phonetic
transcription of letters, meaning, image and symbol within the scope of
protection of the geographical indication; a sign is regarded as confusingly
similar to a protected geographical indication if it is confusingly similar to
the protected geographical indication in terms of word composition, the way of
pronunciation, the way of phonetic transcription of letters, meaning, image and
symbol within the scope of protection of the geographical indication;
b/ Products bearing the suspected sign are identical or
similar to those bearing the protected geographical indication, where a product
is regarded as identical or similar if it is identical or similar in terms of
substance, functions, utility and distribution channel to another product;
c/ For wine and spirits, apart from the provisions of
Point a and Point b of this Clause, a sign that is identical to a protected
geographical indication, including its expression in the form of translation or
phonetic transcription or accompanied by parts of speech, types, forms,
adaptations or similar words that are used for products not originated from the
geographical area bearing the protected geographical indication, shall also be
regarded as an infringing element of the rights to the geographical indication.
4. When a product bears a sign that is identical to or is
insignificantly different in terms of overall composition and the method of
presentation from the protected geographical indication of a product of the
same type within the scope of protection, it shall be regarded as a counterfeit
geographical indication goods as provided for in Article 213 of the Law on
Intellectual Property.
Article 13.- Infringing elements
of trade names
1. An infringing element of a trade name is expressed in
the form of a sign affixed on goods, their packages, means of services,
transaction documents, signboards, means of advertising or other means of
business that is identical or confusingly similar to the protected trade name.
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3. In order to determine whether a suspected sign is an
infringing element of a trade name, it is required to compare the sign to the
protected trade name and to compare goods or services bearing this sign to the
protected products or services on the following bases:
a/ The suspected sign is identical or confusingly similar
to the protected trade name; where a sign is regarded as identical to a
protected trade name if it has the same composition, including the way of
pronunciation, the way of phonetic transcription of letters; a sign is regarded
as similar to a protected trade name if it similar in terms of composition, the
way of pronunciation, the way of phonetic transcription of letters, thereby
misleading consumers as to the business owner, business establishment or
business activities bearing the protected trade name;
b/ Goods or services bearing the suspected sign shall be
regarded as identical or similar to those bearing the protected trade name if they
are identical or similar in terms of substance, functions, utility and
distribution channel.
Article 14.- Infringing elements
of plant varieties
1. An infringing element of a plant variety may take one
of the following forms:
a/ Use of a sapling or propagative material of a protected
plant variety to commit acts specified in Clause 1, Article 186 of the Law on
Intellectual Property without the permission of the protection title holder;
b/ Use of a sapling or propagative material or any plant
variety specified in Clause 1 or Clause 2, Article 187 of the Law on
Intellectual Property;
c/ The process of producing plant varieties specified in
Clause 3, Article 187 of the Law on Intellectual Property;
d/ Use of the name of a plant variety of the same species
or a species close to the species of a protected plant variety that is
identical or confusingly similar to the name of the protected plant variety;
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2. Bases for determination of an infringing element of the
rights to a plant variety:
a/ Written description of the plant variety, with the
certification of a plant variety protection agency;
b/ Plant variety protection title.
Article 15.- Bases for
determination of the nature and extent of infringement
1. The nature of infringement provided in Clause 1,
Article 199 of the Law on Intellectual Property is determined on the following
bases:
a/ Circumstances and motive of infringement: unintentional
infringement, intentional infringement, infringement due to control or
dependency, first-time infringement, recidivism;
b/ Manners of commission of acts of infringement: isolated
infringement, infringement in an organized manner, self-commission of acts of
infringement, bribery, deception or compelling of other persons to commit acts
of infringement.
2. The extent of infringement provided in Clause 1,
Article 199 of the Law on Intellectual Property is determined on the following
bases:
a/ Scope of territory, time, volume and scale of
commission of acts of infringements;
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Section 2. Determination of damage
Article 16.- Principles for
determination of damage
1. Damage as a result of intellectual property right
infringement provided in Article 204 of the Law on Intellectual Property is
actual losses including both physical and spiritual losses directly caused to
the intellectual property right holder by acts of intellectual property right
infringement.
2. Actual losses shall be regarded as having been occurred
when all of the following bases exist:
a/ The physical or spiritual benefit is real and belongs
to the aggrieved person;
b/ The aggrieved person could achieve the benefit referred
to at Point a of this Clause;
c/ There is a decrease in or loss of the benefit of the
aggrieved person after the act of intellectual property right infringement is
committed as compared to the possibility of achieving such benefit if such act
of intellectual property right infringement would not happen and it constitutes
the direct cause of such decrease in or loss of the benefit.
3. The level of damage is determined in accordance with
the infringing elements of the intellectual property right subject matters.
The determination of the level of damage is based on the
evidence of the damage furnished by the parties, including the assessment
results and damage declarations that clearly state the bases for determination
and calculation of the level of damage.
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1. Losses in property are determined in accordance with the
level of decrease in or loss of the in-cash value of the protected intellectual
property right subject matters.
2. The in-cash value of an intellectual property right
subject matter referred to in Clause 1 of this Article is determined in
accordance with the following bases:
a/ The price of transfer of the ownership right or the
price of assignment of the use right of the intellectual property right subject
matter;
b/ The value of the business capital contributed in the
form of intellectual property rights;
c/ The ratio of the value of intellectual property rights
to the total assets of an enterprise;
d/ The value of investment in the creation and development
of the intellectual property right subject matter, including marketing,
research, advertising and labor costs, taxes and other expenses.
Article 18.- Decrease in income,
profits
1. The income, profits referred to at Point a, Clause 1 of
Article 204 of the Law on Intellectual Property include the following:
a/ The income, profits gained from directly using and
exploiting the intellectual property right subject matter;
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c/ The income, profits gained from assigning the right to
use the intellectual property right subject matter.
2. The level of decrease in income, profits is determined
on the following bases:
a/ Direct comparison between the levels of actual income,
profits before and after the acts of infringement are committed, applicable to
each type of income specified in Clause 1 of this Article;
b/ Comparison between the yields or volumes of products,
goods or services actually consumed or supplied before and after the acts of
infringement are committed;
c/ Comparison between actual sales price of the products,
goods or services on the market before and after the acts of infringement are
committed.
Article 19.- Losses in business
opportunities
1. Business opportunities specified at Point a, Clause 1
of Article 204 of the Law on Intellectual Property include the following:
a/ Actual possibility of directly using or exploiting the
intellectual property right subject matter in the business course;
b/ Actual possibility of leasing the intellectual property
right subject matter to other persons;
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d/ Loss of other business opportunities directly caused by
the acts of infringement.
2. A loss in business opportunities means loss of the in-cash
value of the income that the aggrieved person would have achieved in any of the
cases referred to in Clause 1 of this Article but fails to do so due to the
acts of infringement.
Article 20.- Reasonable expenses
for prevention and remedy of damage
Reasonable expenses for prevention and remedy of damage
referred to at Point a, Clause 1, Article 204 of the Law on Intellectual
Property include expenses for temporary custody, maintenance, storage of
infringing goods, costs of implementation of provisional urgent measures,
reasonable expenses for hire of the assessment service, prevention and remedy
of consequences of acts of infringement, and cost of notification and
correction in the mass media relating to acts of infringement.
Chapter III
REQUEST FOR HANDLING OF INFRINGEMENTS AND SETTLEMENT
THEREOF
Article 21.- Exercise of the
right to self-protection
1. Organizations and individuals shall exercise the right
to self-protection under the provisions of Article 198 of the Law on Intellectual
Property and the specific provisions of this Article.
2. Technological measures provided at Point a, Clause 1,
Article 198 of the Law on Intellectual Property include:
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b/ Using technical means or measures to mark, identify,
distinguish and protect the protected products.
3. Intellectual property right holders shall request
termination of acts of infringement specified at Point b, Clause 1, Article 198
of the Law on Intellectual Property by sending written notices to the
infringes. Such a written notice shall contain indicative information on the
origin of emergence, protection title, owner, scope and term of protection and
fix a reasonable period of time for the infringer to terminate the act of
infringement.
4. Requests for competent state agencies to handle acts of
infringement provided at Point c, Clause 1, Article 198 of the Law on
Intellectual Property shall comply with the provisions of Articles 22, 23, 24,
25, 26 and 27 of this Decree.
Article 22.- Petition for
handling of infringement
1. A petition for handling of infringement must contain
the following major details:
a/ Date of the petition;
b/ Name and address of the requester for handling of
infringement; full name of the representative of the requester if such request
is made by the representative;
c/ Name of the agency that receives the petition;
d/ Name and address of the infringer; name and address of
the suspected infringer in the case of request for temporary cessation of
customs clearance for exports or imports suspected of infringement;
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f/ Name(s) and address(es) of the witness(es) (if any);
g/ Brief information about the infringed intellectual
property rights: type of the right, bases for emergence of the right and its
subject matter;
h/ Brief information about the act of infringement: date
and place of occurrence of the infringement, brief description of the
infringing product, acts of infringement and other information (if any).
For a petition for temporary cessation of customs
clearance for imports or exports suspected of infringement, it is required to
contain additional information on the mode of import or export, country of
exportation, mode of packaging, the lawful importer or exporter, features of
lawfully imported or exported goods for distinction from infringing goods;
risks of occurrence of circumstances when certain measures need to be applied
to prevent infringements and to secure the imposition of penalties, and other
information (if any);
i/ Proposed measures to handle infringement;
j/ A list of documents and evidence accompanying the
petition;
k/ Signature of the petitioner with a seal (if any).
2. A petition for handling of infringement must be
accompanied with documents and evidence to prove the request.
Article 23.- Accompanying
documents, evidence and exhibits
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a/ Evidence proving that the requester is the right
holder, if the requester is the right holder or an assignee, heir or successor
of the intellectual property rights;
b/ Evidence proving the actual occurrence of the acts of
infringement; proving the suspicion of infringing imports or exports (for a
petition for temporary cessation of customs clearance for imports or exports
suspected of infringement);
c/ Copy of the notice sent by the intellectual property
right holder to the infringer, which allows a reasonable period of time for the
infringer to terminate the acts of infringement, and evidence proving the
infringer’s failure to terminate the acts of infringement in the case of filing
a petition for handling of infringement under the provisions of Point b, Clause
1, Article 211 of the Law on Intellectual Property;
d/ Evidence proving the damage caused by the infringing
products to consumers or society, including food, foodstuffs, preventive and
curative medicines, livestock feeds, fertilizers, veterinary drugs, plant
protection drugs, plant varieties and animal breeds that are harmful to the
health of humans or animals or to the environment, in the case of filing a
petition for handling of infringement under the provisions of Point a, Clause
1, Article 211 of the Law on Intellectual Property;
e/ Evidence and exhibits related to the intellectual
property counterfeit goods or products, parts of products, decals, labels,
marks, goods packages, materials and means chiefly used for the production of
intellectual property counterfeit goods; documents proving the acts of
assignment, ordering, production or trading of products, parts of products,
decals, labels, marks, goods packages, materials and means used for the
production of intellectual property counterfeit goods in the case of filing a
petition for handling of infringement under the provisions of Point c or d,
Clause 1, Article 211 of the Law on Intellectual Property;
f/ Evidence proving the request for the application of measures
to prevent infringement and to secure the imposition of penalties (in the case
of concurrently requesting the application of those measures).
2. When a request for handling of infringement is made
through an authorized representative, the petition must be enclosed with the
paper or contract of authorization notarized by public notary or certified by
the local administration; if it is made by a representative at law, the
petition must be enclosed with a paper proving the representative-at-law status.
Article 24.- Evidence to prove
the right holder status
The documents referred to in Clause 2, Article 203 the Law
on Intellectual Property and specified in this Clause shall be regarded as
evidence to prove the right holder status.
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a/ The original of the protection title for inventions,
industrial designs, layout design, marks or geographical indications; the
original of the protection title for plant varieties; the original of a
copyright/related right registration certificate or a copy thereof notarized by
a public notary or certified by the original-issuing agency;
b/ An excerpt of the National Register of Industrial
Property; an excerpt of the National Register of Copyright/Related Rights; an
excerpt of the National Register of Rights to Plant Varieties, issued by the
competent agencies that have registered those subject matters.
2. For an internationally registered mark, the evidence to
prove the right holder status shall be the original or the certificate of
protection in Vietnam of such internationally registered mark issued by the
state management agency in charge of industrial property, a copy of the
International Mark Official Gazette of the World Intellectual Property
Organization that is certified by the state management agency in charge of
industrial property or a copy of or the certificate of protection in Vietnam of
such internationally registered mark or the Industrial Property Official
Gazette that is notarized by public notary or certified by the state management
agency in charge of industrial property.
3. For other intellectual property rights subject matters,
evidence to prove the right holder status shall be any documents, exhibits or
information used as the basis for emergence and establishment of the relevant
right as provided in Clause 1, Clause 2, at Point b and Point c, Clause 3 of
Article 6 of the Law on Intellectual Property and specified as follows:
a/ For unregistered copyright, rights of performers,
rights of producers of phonograms or video recordings or rights of broadcasting
organizations: the original or a copy of the work, fixation of the performance,
phonogram, video recording, the broadcast, the satellite signals carrying
encoded programs together with other documents evidencing their creation,
publication or dissemination of those subject matters and accompanying
documents and evidence (if any);
b/ For business secrets: a description of the contents,
form of storage, method of protection and method of acquisition of the secret;
c/ For trade names: a description of the contents, mode of
use and using process of the trade name;
d/ For well-known marks: documents evidencing the criteria
of a well-known mark provided in Article 75 of the Law on Intellectual Property
and explanations on the process of using a mark to make it well-known.
4. If the requester for handling of infringement is a
transferee of the ownership of the intellectual property right subject matter,
a transferee of the right to use the intellectual property right subject
matter, a heir or successor of the intellectual property right subject matter,
in addition to those documents referred to in Clauses 1, 2 and 3 of this
Article, the requester shall also produce the original or a valid copy of the
contract for transfer of the ownership of the intellectual property right
subject matter or for the use of the intellectual property right subject matter
or a document of certification of the inheritance or succession of the
intellectual property right subject matter. When the transfer has been entered
in the protection title or the certificate of registration of the contract for
transfer of the ownership of the intellectual property right subject matter or
for the use of the intellectual property right subject matter, these documents
shall be also regarded as evidence to prove the right holder status.
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1. The following documents and exhibits shall be regarded
as evidence to prove an infringement:
a/ The original or a valid copy of the descriptive
documents or specimen or related exhibit expressing the protected subject
matter;
b/ The specimen, related exhibit, photos or recorded
images of the examined products;
c/ The written explanation and comparison between the
examined products and protected subject matter;
d/ Minutes, testimonies and other documents evidencing
acts of infringement.
2. A list of the documents and exhibits referred to in
Clause 1 of this Article must be made, certified with the signature of the
requester.
Article 26.- Responsibilities of
requesters for handling of infringement
1. A requester for handling of infringement shall ensure
and be held liable for the truthfulness of the information, documents and
evidence that he/she supplied.
2. A requester for handling of infringement who takes
advantage of the right to request for handling of infringement for other
unhealthy purposes and thereby causing damage to other organizations and
individuals shall be liable for compensation.
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1. A petition for handling of infringement shall be filed
with agencies with competence to handle infringements defined in Article 200 of
the Law on Intellectual Property.
2. Upon receiving a petition for handling of infringement,
if the petition-receiving agency finds that the petition falls within the
settling competence of another agency, it shall either instruct the requester
to file the petition with the agency with the settling competence or forward
the petition to the agency with settling competence within ten days after the
date of receipt of the petition.
3. If a petition for handling of infringement lacks
documents, evidence or exhibits as required, the infringement-handling agency
shall request the requester to submit supplementary documents and evidence and
fix a reasonable time limit not exceeding thirty days for the requester to do
so.
4. The infringement-handling agency shall reject a petition
for handling of infringement and state the reason for rejection in the
following cases:
a/ At the expiration of the fixed time limit referred to
in Clause 3 of this Article, the requester for handling of infringement fails
to submit supplementary documents and evidence as requested by the
infringement-handling agency;
b/ The statute of limitations for handling infringements
as provided for by law has expired;
c/ The verification result of the infringement-handling
agency or the police shows that there is no infringement as described in the
petition;
d/ A competent agency’s document shows that there are
insufficient grounds for handling the infringement.
5. When there is a dispute over or complaint about the
right holder, the possibility of protection or scope of protection of the
intellectual property rights, the agency that has received the petition for
handling of infringement shall instruct the requester to carry out procedures
for requesting settlement of the dispute or complaint at a competent agency
within ten days after the date on which the dispute arises.
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HANDLING OF INFRINGEMENTS BY ADMINISTRATIVE MEASURES
Article 28.- Determination of the
value of infringing goods
1. Infringing goods:
a/ Infringing goods provided in Clause 4, Article 214 of
the Law on Intellectual Property are components (parts or details) of products
that contain infringing elements, and can be circulated as independent goods
(hereinafter referred to as infringing goods);
b/ If it is impossible to detach the infringing elements
as independent product components as provided at Point a of this Clause, then
the infringing goods shall be the whole products that contain infringing
elements.
2. The value of infringing goods specified in Clause 4,
Article 214 of the Law on Intellectual Property shall be determined by the
infringement-handling agency at the time of occurrence of the acts of
infringement on the following bases that are arranged in the priority order as
follows:
a/ The listed prices of the infringing goods;
b/ The actual selling prices of the infringing goods;
c/ The cost of the infringing goods (if not yet delivered
for sale);
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3. The value of infringing goods shall be calculated
either on the basis of components (parts, details) of the infringing products
referred to at Point a, Clause 1 of this Article or on the value of the whole
of the infringing products referred to at Point b, Clause 1 of this Article.
4. When the application of the bases specified in Clause 2
of this Article is inappropriate or the infringement-handling agency and the
finance agency of the same level cannot reach agreement on the determination of
the value of the infringing goods, the valuation of these goods shall be
decided by the council for determination of the value of infringing goods.
The establishment, composition and working principles of
the council for determination of the value of infringing goods shall comply
with the provisions of law.
Article 29.- Disposal of
infringing goods
1. For intellectual property counterfeit goods, raw
materials, materials and implements mainly used for producing or trading such
goods, the infringement-handling agency may apply one of the following measures:
a/ Confiscation for distribution or use for non-commercial
purposes in accordance with Article 30 of this Decree;
b/ Confiscation for destruction under Article 31 of
this Decree;
c/ Compelling goods owners, transporters or storers to
remove infringing elements and deliver out of the Vietnamese territory transit
goods being goods with counterfeit marks, or to re-export imported goods being
goods with counterfeit marks, being raw materials, materials and means mainly
used for producing goods with counterfeit marks; if it is impossible to remove
the infringing elements, then appropriate measures specified in Clause 4 of
this Article may be applied.
For imported goods with counterfeit geographical
indications or imported raw materials, materials and means mainly used for
producing or trading goods with counterfeit geographical indications or
illegally copied goods, the infringement-handling agency may apply the measure
of compelling removal of infringing elements and appropriate measures specified
in Clause 4 of this Article on a case-by-case basis.
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For imported infringing goods that are not intellectual property
counterfeit goods or materials, raw materials and means mainly used to produce
or trade in such goods, the infringement-handling agency shall apply
appropriate measures specified at Point c, Clause 1 of this Article.
3. Materials, raw materials and means that have the sole
function of creating or commercially exploiting intellectual property
counterfeit goods, infringing goods or are actually used only for that purpose
shall be regarded as materials, raw materials and means mainly used for producing
or trading intellectual property counterfeit goods or infringing goods.
4. On a case-by-case basis, the infringement-handling
agency shall decide to apply measures specified at Point a, Point b, Clause 1
of this Article or other appropriate measures as it deems appropriate. In the
process of issuing a decision to handle infringement, the infringement-handling
agency may consider the related parties’ proposals regarding the handling of
infringement.
Article 30. - Compelled
distribution or use for non-commercial purposes
1. The compelled distribution or use of intellectual
property counterfeit goods or infringing goods for non-commercial purposes must
satisfy the following conditions:
a/ The goods are useable;
b/ Infringing elements have been removed from the goods;
c/ Such distribution or use is for non-commercial purposes
and does not unreasonably affect the normal exercise of the rights of the
intellectual property right holder, where the purposes of humanity, charity and
public interest shall be prioritized;
d/ Persons to whom goods are distributed or delivered for
use are not potential customers of the intellectual property right holder.
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Article 31.- Compelled
destruction
The measure of compelled destruction of intellectual
property counterfeit goods, infringing goods and raw materials, materials and
means mainly used for producing and trading those goods shall be applied when
all the conditions for application of the measure of compelled distribution or
use of goods and materials for non-commercial purposes provided in Article 30
of this Decree are not fully met.
Article 32.- Confiscation
The measure of confiscation of intellectual property
counterfeit goods, raw materials, materials and means mainly used for producing
and trading those goods shall be applied in the following cases:
1. In an emergency case in order to ensure that evidence
is not destroyed, dispersed or altered or to prevent the possible commission of
further acts of infringement.
2. The infringing organization or individual has no
capability or condition to remove infringing elements from the goods or
intentionally fails to comply with the request for removal of infringing
elements from the goods or fails to take other measures as prescribed by the
infringement-handling agency.
3. The goods are of unknown origin or belong to unknown
owner while there are sufficient bases for determining that they are
intellectual property counterfeit goods.
Article 33.- Other administrative
remedies and sanctioning competence and procedures
Other forms of administrative sanction and remedies, the
competence and procedures for sanctioning acts of infringement shall be applied
under the provisions of law on sanctioning of administrative violations in the
domains of copyright and related rights, industrial property rights and rights
to plant varieties.
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CONTROL OVER INTELLECTUAL PROPERTY-RELATED IMPORTS AND
EXPORTS
Article 34.- Right to request
control over intellectual property-related imports and exports
Intellectual property right holders may either directly or
through their representatives files a petition for control or supervision for
the purpose of detecting imports or exports containing signs of intellectual
property right infringement or a petition for temporary cessation of customs
clearance for imports or exports suspected of intellectual property right infringement.
Article 35.- Customs offices
competent to receive petitions
1. District customs departments shall have the power to
receive petitions for checking or supervision or temporary cessation of customs
clearance at the border gates under their management.
2. Provincial/municipal customs departments shall have the
power to receive petitions for checking or supervision or temporary cessation
of customs clearance at the border gates under their management.
3. The General Department of Customs shall have the power
to receive petitions for checking or supervision or temporary cessation of
customs clearance at the border gates under the management of two and more
provincial/municipal customs departments.
4. In the cases specified in Clauses 2 and 3 of this Article,
intellectual property right holders may also file their petitions at each
district or provincial customs department.
Article 36.- Procedures for
processing petitions
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2. When the General Department of Customs accepts a
petition, it shall forward the petition and instruct relevant
provincial/municipal customs departments for settlement.
When a provincial/municipal customs department accepts a
petition, it shall forward the petition and instruct relevant district customs
departments for settlement.
District customs departments shall be responsible for
checking and supervising to find out goods suspected of infringement or
deciding on temporary cessation of customs clearance on the basis of the
petitions for temporary cessation of customs clearance and instructions of the
General Department of Customs or provincial/municipal customs departments.
Article 37.- Disposal of goods
suspected of infringement
1. In case the goods suspected of intellectual property
right infringement are found, at the request of the intellectual property right
holder or in exercising the power to impose administrative sanctions, the
customs office shall issue a decision to temporarily cease customs clearance,
and notify the temporary cessation of customs clearance to the intellectual
property right holder and the goods owner, stating the names, addresses,
facsimile numbers and telephone numbers of the concerned parties, the reason
for and the duration of the temporary cessation.
2. The customs office shall continue customs clearance for
the goods shipment in question according to the provisions of Clause 3, Article
218 of Law on the Intellectual Property and in the following cases:
a/ Upon cancellation or revocation of the decision on
temporary cessation of customs clearance under a decision on the settlement of
the complaint or denunciation;
b/ Upon withdrawal by the requester of the petition for
temporary cessation of customs clearance.
Article 38.- Procedures for
controlling intellectual property-related imports and exports
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Chapter VI
INTELLECTUAL PROPERTY ASSESSMENT
Article 39.- Contents and areas
of intellectual property assessment
1. Intellectual property assessment covers the following
contents:
a/ Determination of the legal status and protectability of
the intellectual property right subject matter; the scope of intellectual
property right protection;
b/ Determination of evidence for calculation of the level
of damage;
c/ Determination of infringing elements, infringing
products/services, the element serving as a basis for determination of the
value of the protected intellectual property right subject matter, the
infringing objects;
d/ Determination of the ability to prove the intellectual
property right holder status, infringement, infringing goods or the ability to
prove to the contrary of documents and evidence used in the dispute or
infringement;
e/ Other circumstances of the case that need to be
clarified.
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a/ Assessment of copyright and related rights;
b/ Assessment of industrial property rights;
c/ Assessment of the rights to plant varieties.
Article 40.- Competence to
solicit and the right to request intellectual property assessment
1. The agencies with competence to solicit intellectual property
assessment are agencies with competence to settle disputes, handle
infringements and settle intellectual property-related complaints and
denunciations as defined in Article 200 of the Law on Intellectual Property.
2. The following organizations and individuals are
entitled to request intellectual property assessment:
a/ Intellectual property right holders;
b/ Organizations and individuals subject to a request for
handling of acts of infringement or intellectual property-related complaint or
denunciation;
c/ Other organizations and individuals with related rights
and interests in an intellectual property-related dispute, infringement,
complaint or denunciation.
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Article 41.- Rights and
obligations of persons soliciting or requesting intellectual property
assessment
1. Persons soliciting or requesting intellectual property
assessment are entitled to:
a/ Request the assessment organization or assessor to make
assessment conclusions according to the contents and within the time limit as
requested;
b/ Request the assessment organization or assessor to
explain assessment conclusions;
c/ Request additional assessment or re-assessment under
the provisions of Article 50 of this Decree;
d/ Agree on the assessment charges in the case of request
for assessment.
2. Persons soliciting or requesting intellectual property
assessment are obliged to:
a/ Supply fully and honestly documents, evidence and
information relating to the assessed subject matter at the request of the assessment
organization or assessor;
b/ Clearly and specifically present issues of which
assessment is solicited or requested;
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d/ Receive back the assessed subject matter at the request
of the assessment organization or assessor.
Article 42.- Intellectual
property assessment organizations
1. Intellectual property assessment organizations are
organizations meeting all conditions for conducting intellectual property
assessment.
2. Conditions for establishing an assessment organization:
a/ Having at least two members who have intellectual
property assessor’s cards;
b/ Meeting other conditions under relevant provisions of
law.
3. Conditions for an assessment organization to conduct
intellectual property assessment:
a/ Meeting all conditions specified at Point a, Clause 2
of this Article;
b/ Having a certificate of registration of scientific and
technological activity and a certificate of registration of the assessment
business or practice according to current law;
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Article 43.- Rights and
obligations of intellectual property assessment organizations
1. In assessment activities, intellectual property
assessment organizations shall have the rights and obligations provided in
Clause 4, Article 44 of this Decree; be responsible for ensuring necessary
conditions for intellectual property assessors to discharge their rights and
obligations; and be liable for assessment conclusions if the assessment is
conducted in their names.
2. Intellectual property assessment organizations shall be
responsible for taking part in the following activities:
a/ Scientific research into intellectual property
assessment;
b/ Training assessors and fostering professional skills in
intellectual property assessment.
Article 44.- Intellectual
property assessors
1. Intellectual property assessors are those who have
adequate knowledge and professional skills to assess and conclude on issues
related to the contents of assessment and are recognized by competent state
agencies under the provisions of Clause 5 of this Article.
Intellectual property assessors may operate independently
or as a member of an intellectual property assessment organization.
2. The Ministry of Science and Technology, the Ministry of
Culture and Information and the Ministry of Agriculture and Rural Development
shall, according to their assigned areas of state management of intellectual
property, coordinate with the Ministry of Education and Training and the
Ministry of Justice in issuing specific regulations on the programs on
professional training in each area of assessment under their respective
management.
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a/ Having a university degree in the area of assessment;
b/ Possessing good moral qualities;
c/ Having full civil act capacity;
d/ Having passed a professional exam of knowledge about
intellectual property law, scientific and technical capability, professional
skills and experience for performing assessment of contents related to
industrial property rights, copyright, related rights and rights to plant
varieties.
The Ministry of Science and Technology, the Ministry of
Culture and Information and the Ministry of Agriculture and Rural Development
shall stipulate the contents of examination referred to at this Point in the
areas under their assigned management; guide and organize those exams and grant
certificates of professional eligibility for working as intellectual property
assessors.
4. Intellectual property assessors shall have the
following rights and obligations:
a/ To perform assessment when solicited or requested; to
perform assessment according to the contents of assessment as solicited or
requested, and according to the time requirement on assessment; when it is
necessary to have more time for assessment, to promptly report it to the person
who solicits or requests such assessment;
b/ To refuse to perform assessment when the subject
matters of assessment or documents are insufficient or are irrelevant to make
assessment conclusions, or when they have rights or benefits relating to the
subject matters of assessment or the cases in which assessment is required or
where there exist other reasons that may influence the objectiveness of
assessment conclusions while they also act as representatives to protect the
interests of one of the parties involved in the case in which assessment is
required;
c/ To request agencies, organizations to supply documents,
exhibits and information relating to the subject matters of assessment;
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e/ To prepare assessment dossiers, to be present as
required in the writ of summon of the assessment-soliciting agency; to explain
the assessment conclusions if so requested;
f/ To preserve the exhibits and documents relating to the
assessment; to keep confidential all assessment results and information and
documents for assessment;
g/ To independently make and be responsible for assessment
conclusions;
h/ To compensate for damage when intentionally making
false assessment conclusions, causing damage to concerned individuals and organizations;
i/ To comply with the regulations on the order and
procedures for assessment and to discharge other rights and obligations
provided for by law.
5. The Ministry of Culture and Information, the Ministry
of Science and Technology and the Ministry of Agriculture and Rural Development
shall stipulate the procedures for recognition of intellectual property
assessors, grant and withdrawal of intellectual property assessor’s cards; and
publish lists of intellectual property assessors in the areas under their
respective management corresponding to copyright and related rights, industrial
property rights and rights to plant varieties.
Article 45.- Solicitation of
assessment
1. Any solicitation of assessment must be made in writing.
2. A document on solicitation of assessment must have the
following principal contents:
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b/ Name and address of the assessment organization or the
assessor;
c/ Subject matter and details that need to be assessed;
d/ Relevant evidence, documents and exhibits;
e/ The time limit for notifying the assessment
conclusions.
Article 46.- Assessment request
1. A request for assessment must be made in the form of an
assessment service contract between the person requesting assessment and an
assessment organization or an assessor.
2. An assessment service contract must contain the
following principal details:
a/ Name and address of the organization or individual
requesting assessment;
b/ Name and address of the assessment organization or the
assessor;
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d/ Relevant evidence, documents and exhibits;
e/ Time limit for notifying assessment conclusions;
f/ Rights and obligations of the parties;
g/ Liabilities for breach of the contract.
Article 47.- Delivery, receipt
and return of objects for intellectual property assessment
Where the assessment solicitation or request is enclosed
with an assessment object, the handing, receipt and return of the object must
be recorded in writing. Such a record must have the following principal
details:
1. Time and place of delivery, receipt and return of the
assessment object;
2. Names and addresses of the deliverer and recipient of
the assessment object or of their representatives;
3. Name of the assessment object; related documents or
items.
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5. Signatures of the deliverer and recipient of the
assessment object.
Article 48.- Taking of samples
for intellectual property assessment
1. The assessment organization or assessor may directly
take samples for assessment (particular exhibits that are infringing elements
or intellectual property subject matters) or request the assessment solicitor
or requester to supply samples for assessment. The taking of samples for
assessment must be recorded in writing to the witness of the involved parties
who shall sign this record for certification.
2. The delivery, receipt and return of assessment samples
shall comply with the provisions of Article 47 of this Decree.
Article 49.- Performance of
intellectual property assessment
1. Intellectual property assessment may be performed by
one or several intellectual property assessors. Individual assessment means
assessment performed by a single assessor. Collective assessment means
assessment performed by two or more assessors.
2. In case of individual assessment, the assessors shall
perform the whole of the assessment and be responsible for their assessment
conclusions. In case of collective assessment of issues in the same
professional area, the assessors shall jointly perform the assessment, sign the
common assessment conclusion document and be jointly responsible for assessment
conclusions; if the assessors hold different opinions, each assessor shall
write his/her own opinion in the common assessment conclusion document and be
responsible for that opinion. In case of collective assessment of issues in
different professional areas, each assessor shall perform his/her assessment
job and be responsible for his/her assessment conclusion.
Article 50.- Additional
assessment, re-assessment
1. Additional assessment shall be performed when the assessment
conclusion is insufficient and unclear regarding the contents that need
assessment or when new circumstances arise and need to be made clear. The
request for additional assessment and the performance of additional assessment
shall comply with the provisions applicable to first-time assessment.
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3. If the first-time assessment conclusion is
contradictory to the re-assessment conclusion on the same assessed issue, it is
possible to further request or solicit re-assessment by another assessment
organization or assessor.
Article 51.- Written assessment
conclusions
1. Written assessment conclusion shall be considered as
evidence used for handling the case.
2. A written assessment conclusion must contain the
following principal contents:
a/ Name and address of the assessment organization or
assessor;
b/ Name and address of the agency soliciting assessment or
the organization or individual requesting assessment;
c/ Object, contents and scope of assessment;
d/ Mode of assessment;
e/ Assessment conclusions;
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3. A written assessment conclusion must be signed by the
assessor(s) performing the assessment. When the assessment is performed by an
assessment organization, the written assessment conclusion must also be signed
by the head of the assessment organization and affixed with the seal of the
assessment organization.
Article 52.- Prohibited acts in
the performance of assessment
In the performance of assessment, the following acts are
prohibited:
1. Accepting and performing assessment in the cases in
which assessment must be refused according to regulations.
2. Intentionally making false assessment conclusions.
3. Disclosing confidential information known in the course
of assessment without permission of the involved parties.
4. Taking advantage of the assessment status and
assessment activities for self-seeking purposes.
Article 53.- Assessment charges
Charges for intellectual property assessment upon
solicitation shall comply with the provisions of law on charges and fees.
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Chapter VII
STATE MANAGEMENT OF INTELLECTUAL PROPERTY
Article 54.- Principle of unified
state management of intellectual property
The performance of the state management of intellectual property
provided in Article 10 and Article 11 of the Law on Intellectual Property shall
be based on the principle of uniformity of objectives, contents and measures
under the general direction of the Government, clear division of
responsibilities and close coordination among ministries, ministerial-level
agencies, government-attached agencies and People’s Committees at all levels.
Article 55.- Responsibilities of
the Ministry of Science and Technology
1. The Ministry of Science and Technology shall assume the
prime responsibility for, and coordinate with the Ministry of Culture and
Information, the Ministry of Agriculture and Rural Development and other
ministries, ministerial-level agencies, government-attached agencies and
People’s Committees at all levels in, carrying out the following general
activities in order to secure unified state management of intellectual
property:
a/ Formulating, promulgating or submitting to competent
authorities for promulgation, and organizing the implementation of, strategies,
policies and general legal documents on intellectual property right protection
and this Decree;
b/ Monitoring, urging and supervising the performance of
the tasks by ministries, ministerial-level agencies, government-attached
agencies and People’s Committees at all levels, which are assigned by the
National Assembly and the Government, in accordance with the provisions of
Article 10 and Article 11 of the Law on Intellectual Property, and this Decree;
c/ Summing up, evaluating and reporting to the Government
on intellectual property right protection activities, and making proposals on
specific policies and measures to improve the effectiveness of intellectual
property system and secure the unified state management of intellectual
property;
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e/ Negotiating, concluding, acceding to and organizing the
implementation of, general treaties on intellectual property; proposing the
settlement of national intellectual property-related disputes in the domain of
international relations.
2. Apart from the prime responsibility for performing
general activities specified in Clause 1 of this Article, the Ministry of
Science and Technology shall have the following responsibilities:
a/ Directly performing the function of state management of
industrial property and securing the consistency of industrial property
policies, strategies and legal documents with general policies, strategies and
legal documents on intellectual property;
b/ Performing other tasks assigned by the Government.
Article 56.- Responsibilities of
the Ministry of Culture and Information
The Ministry of Culture and Information shall coordinate
with the Ministry of Science and Technology in performing the tasks specified
in Clause 1, Article 55 of this Decree and perform the following specific
tasks:
a/ Directly performing the function of state management of
copyright and related rights, securing the consistency of policies, strategies
and legal documents on copyright and related rights with general policies,
strategies and legal documents on intellectual property; regularly or
irregularly reporting to the Ministry of Science and Technology on the state
management and protection of intellectual property rights for coordination in
handling emerging issues, sum-up and report to the Prime Minister.
b/ Performing other tasks assigned by the Government.
Article 57.- Responsibilities of
the Ministry of Agriculture and Rural Development
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1. Directly performing the function of state management of
rights to plant varieties, securing the consistency of policies, strategies and
legal documents on rights to plant varieties with general policies, strategies
and legal documents on intellectual property; regularly or irregularly
reporting to the Ministry of Science and Technology on the state management and
protection of intellectual property rights for coordination in handling
emerging issues, sum-up and report to the Prime Minister.
2. Performing other tasks assigned by the Government.
Article 58.- Responsibilities of
other ministries, ministerial-level agencies, government-attached agencies and
People’s Committees at all levels
Ministries, ministerial-level agencies,
government-attached agencies and People’s Committees at all levels shall,
within the scope of their respective functions and tasks, coordinate with the
Ministry of Science and Technology, the Ministry of Culture and Information and
the Ministry of Agriculture and Rural Development in performing the following
specific tasks:
1. Performing the tasks specified in Clause 1, Article 55
of this Decree and directly performing specific tasks assigned by the
Government and the National Steering Committee for Intellectual Property.
2. Securing the implementation of policies and law on
intellectual property in their localities in accordance with the Law on
Intellectual Property and its guiding documents.
3. Regularly or irregularly reporting to the Ministry of
Science and Technology on the state management and protection of intellectual
property rights for coordination in handling emerging issues, sum-up and report
to the Prime Minister.
Article 59.- The National
Steering Committee for Intellectual Property
The Prime Minister shall decide to set up the National
Steering Committee for Intellectual Property and define specific duties and
powers of this Committee
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1. The Ministry of Science and Technology shall assume the
prime responsibility for, and coordinate with the Ministry of Culture and
Information, the Ministry of Agriculture and Rural Development and concerned
agencies in, performing the state management of, protecting, supervising,
inspecting and handling infringements of intellectual property rights.
2. State management agencies in charge of intellectual
property shall fully and promptly reply to requests of agencies with competence
to handle infringements of intellectual property rights.
3. State management agencies in charge of intellectual
property shall, upon request, participate in inspection or supervision teams to
assist inspection and supervision work.
4. Concerned ministries shall report on the protection of
intellectual property rights on an annual basis or upon request to the National
Steering Committee for Intellectual Property, or upon international request.
Chapter VIII
IMPLEMENTATION PROVISIONS
Article 61.- Transition
provisions
1. This Decree’s provisions on inventions also apply to
utility solutions protected under the 1995 Civil Code and the Government’s
Decree No. 63/CP of October 24, 1996, stipulating in detail industrial
property, which was amended under Decree No. 06/2001/ND-CP of February 1, 2001.
2. This Decree’s provisions on geographical indications
also apply to goods origin appellations protected under the 1995 Civil Code and
the Government’s Decree No. 63/CP of October 24, 1996, stipulating in detail
industrial property, which was amended under Decree No. 06/2001/ND-CP of
February 1, 2001.
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Article 62.- Effect of the Decree
This Decree takes effect 15 days after its publication in
“CONG BAO.”
Other provisions in documents promulgated before the
effective date of this Decree that are contrary to this Decree are all
annulled.
Article 63.- Responsibilities for
implementation guidance
1. The Minister of Science and Technology, the Minister of
Culture and Information and the Minister of Agriculture and Rural Development
shall provide guidance on the implementation of this Decree.
2. Ministers, heads of ministerial-level agencies, heads
of government-attached agencies, and presidents of People’s Committees of
provinces and centrally run cities shall implement this Decree.
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung
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