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THE
NATIONAL ASSEMBLY
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|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
36/2009/QH12
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Hanoi,
June 19, 2009
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LAW
AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES
OF THE LAW ON INTELLECTUAL PROPERTY
(No.
36/2009/QH12)
Pursuant to the 1992
Constitution of the Socialist Republic of Vietnam, which was amended and
supplemented under Resolution No. 51/2001/QH10;
The National Assembly promulgates the Law Amending and Supplementing a Number
of Articles of the Law on Intellectual Property.
Article 1.
To amend
and supplement a number of articles of the Law on Intellectual Property:
1. To
amend and supplement Article 3 as follows:
"Article 3. Subject matters
of intellectual property rights
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2. Subject matters of industrial
property rights include inventions, industrial designs, layout-designs of
semiconductor integrated circuits, trade secrets, marks, trade names and
geographical indications.
3. Subject matters of rights to
plant varieties include reproductive and harvested materials."
2. To amend
and supplement Article 4 as follows:
"Article 4. Interpretation
of terms
In this Law. the terms below are
construed as follows:
1. Intellectual property rights
means rights of organizations and individuals to intellectual assets, including
copyright and copyright-related rights, industrial properly rights and rights
to plant varieties.
2. Copyright means rights of
organizations and individuals to works they have created or own.
3. Copyright-related rights
(below referred to as related rights) means rights of organizations and
individuals to performances, phonograms, video recordings, broadcasts and
encrypted program-carrying satellite signals.
4. Industrial property rights
means rights of organizations and individuals to inventions, industrial designs,
layout-designs of semiconductor integrated circuits, trade secrets, marks,
trade names, geographical indications and trade secrets they have created or
own, and the right to repression of unfair competition.
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6. Intellectual property right
holder means an owner of intellectual property rights or an organization or
individual that is assigned intellectual property rights by the owner.
7. Work means a creation of the
mind in the literary, artistic or scientific domain, whatever may be the mode
or form of its expression.
8. Derivative work means a work
which is translated from one language into another adapted, modified,
transformed, compiled, annotated or selected.
9. Published work, phonogram or
video recording means a work, phonogram or video recording which has been made
available in a reasonable quantity of copies to the public with the permission
of the copyright holder or related right holder.
10. Reproduction means the
making of one or many copies of a work or a phonogram or video recording by
whatever mode or in whatever form, including the backup of the work in
electronic form.
11. Broadcasting means the
transmission of the sound or image or both of a work, a performance, a
phonogram, a video recording or a broadcast to the public by wire or wireless
means, including satellite transmission, in such a way that members of the
public may access that work from a place and at a time they themselves select.
12. Invention means a technical
solution in the form of a product or a process which is intended to solve a
problem by application of laws of nature.
13. Industrial design means a
specific appearance of a product embodied by three-dimensional configurations,
lines, colors, or a combination of these elements.
14. Semiconductor integrated
circuit means a product, in its final form or an intermediate 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 to IC, chip and microelectronic circuit.
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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 from those of non-members of
an organization which is the owner of such mark.
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, for the purpose of certifying the
origin, raw materials, materials, mode of manufacture of goods or manner of
provision of services, quality, accuracy, safety or other characteristics of
goods or services bearing the mark.
19. Integrated mark means
identical or similar marks registered by the same entity and intended for use
on products or services which are of the same type or similar types or
interrelated.
20. Well-known mark means a mark
widely known by consumers throughout the Vietnamese territory.
21. Trade name means a
designation of an organization or individual in business activities, capable of
distinguishing the business entity bearing it from another entity in the same
business domain and area.
A business area mentioned in
this Clause means a geographical area where a business entity has its partners,
customers or earns its reputation.
22. Geographical indication
means a sign which identifies a product as originating from a specific region,
locality, territory or country.
23. Trade secret means
information obtained from financial or intellectual investment activities,
which has not yet been disclosed and can be used in business.
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25. Protection title means a
document granted by a competent state agency to an organization or individual
in order to establish industrial property rights to an invention, industrial
design, layout-design, trademark or geographical indication; or rights to a
plant variety.
26. Reproductive material means
a plant or a part thereof capable of growing into a new plant for use in
reproduction or cultivation.
27. Harvested material means a
plant or a part thereof obtained from the cultivation of a reproductive
material."
3. To amend
and supplement Article 7 as follows:
"Article 7. Limitations on
intellectual property rights
1. Intellectual properly right
holders may only exercise their rights within the scope and term of protection
provided for in this Law.
2. The exercise of intellectual
property rights must neither prejudice the State's interests, public interests,
legitimate rights and interests of other organizations and individuals, nor
violate other relevant provisions of law.
3. In the circumstances where
the achievement of defense, security, people's livelihood objectives and other
interests of the State and society specified in this Law needs to be
guaranteed, the State may prohibit or restrict the exercise of intellectual
property rights by the holders or compel the licensing by the holders of one or
several of their rights to other organizations or individuals under appropriate
terms. The limitation on rights to inventions classified as state secrets
complies with regulations of the Government."
4. To amend
and supplement Article 8 as follows:
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1. To recognize and protect
intellectual property rights of organizations and individuals on the basis of
harmonizing benefits of intellectual property rights holders and public
interests; not to protect intellectual property objects which are contrary to
social ethics and public order and prejudicial to defense and security.
2. To encourage and promote the
creation and utilization of intellectual assets in order to contribute to
socio-economic development and improvement of the people's material and
spiritual life.
3. To provide financial supports
for the receipt and exploitation of assigned intellectual property rights in
public interests; to encourage organizations and individuals at home or abroad
to provide financial aid for creative activities and the protection of
intellectual property rights.
4. To prioritize investment in
training and retraining the contingent of cadres, civil servants, public
employees and other relevant subjects engaged in the protection of intellectual
property rights and the research into and application of sciences and
technologies to the protection of intellectual property rights.
5. To mobilize social resources
for investment in raising the capacity of the system to protect intellectual
property rights, thereby meeting requirements of socio-economic development and
international economic integration."
5. To amend
and supplement Article 14 as follows:
"Article 14. Types of works
eligible for copyright protection
1. Literary, artistic and
scientific works eligible for copyright protection include:
a/ Literary and scientific
works, textbooks, teaching courses and other works expressed in written
languages or other characters:
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c/ Press works;
d/ Musical works;
e/ Dramatic works;
f/ Cinematographic works and
works created by a process analogous to cinematography (below collectively
referred to as cinematographic works);
g/ Plastic-art works and works
of applied ait;
h/ Photographic works;
i Architectural works;
j/ Sketches, plans, maps and
drawings related to topography, architecture or scientific works: k/ Folklore
and folk art works of folk culture; 1/ Computer programs and data compilations.
2. Derivative works shall be
protected under Clause I of this Article only if it is not prejudicial to the
copyright to works used to create these derivative works.
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4. The Government shall guide in
detail the types of works specified in Clause 1 of this Article."
6. To amend
and supplement Article 25 as follows:
"Article 25. Cases of use
of published works in which permission and payment of royalties or
remunerations are not required
1. Cases of use of published
works in which permission or payment of royalties or remunerations is not
required include:
a/ Duplication of works for
personal scientific research or leaching purpose;
b/ Reasonable recitation of
works without misrepresenting the authors' views for commentary or illustrative
purpose;
c/ Recitation of works without
misrepresenting the authors* views in articles published in newspapers or
periodicals, in radio or television broadcasts, or documentaries;
d/ Recitation of works in
schools for lecturing purpose without misrepresenting the authors" views
and not for commercial purpose:
c/ Reprographic reproduction of
works by libraries for archival and research purpose;
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g/ Audiovisual recording of
performances for the purpose of repotting current events or for teaching
purpose;
h/ Photographing or televising
of plastic art, architectural, photographic, applied-art works displayed at
public places for the purpose of presenting images of these works:
i/ Transcription of works into
Braille or characters of other languages for the blind:
j/ Importation of copies of
others' works for personal use.
2. Organizations and individuals
that use works defined in Clause 1 of this Article may neither affect the
normal utilization of these works nor prejudice the rights of the authors or
copyright holders; and shall indicate the authors" names, and sources and
origins of these works.
3. The provisions of Points a
and e. Clause 1 of this Article are not applicable to architectural works,
plastic works and computer programs."
7. To amend
and supplement Article 26 as follows:
"Article 26. Cases of use
of published works in which permission is not required but the payment of
royalties or remunerations is required
1. Broadcasting organizations
that use published works in making their broadcasts, which are sponsored,
advertised or charged in whatever form, are not required to obtain permission
but have to pay royalties or remunerations to copyright holders from the date
of use. Levels of royalties, remunerations or other material benefits and modes
of payment shall be agreed upon by involved parlies. If no agreement is
reached, involved parties shall comply with regulations of the Government or
institute lawsuits at court under law.
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2. Organizations and individuals
that use works under Clause 1 of this Article must neither affect the normal
utilization of these works nor prejudice the rights of the authors or copyright
holders: and shall indicate the authors" names, and sources and origins of
the works.
3. The use of works in the cases
specified in Clause 1 of this Article does not apply to cinematographic
works."
8. To amend
and supplement Article 27 as follows:
"Article 27. Term of
copyright protection
1. The moral rights provided for
in Clauses 1, 2 and 4. Article 19 of this Law shall be protected for an
indefinite term.
2. The moral rights provided for
in Clause 3, Article 19 and the economic rights provided for in Article 20 of
this Law enjoy the following term of protection:
a/ Cinematographic works,
photographic works, works of applied art and anonymous works have a term of
protection of seventy five years from the date of first publication. For
cinematographic works, photographic works and works of applied art which remain
unpublished within twenty five years from the date of fixation, the term of
protection is one hundred years from the date of fixation. For anonymous works,
when information on their authors is published, the term of protection will be
calculated under Point b of this Clause.
b/ A work not specified at Point
a of this Clause is protected for the whole life of the author and for fifty
years after his/her death. For a work under joint authorship, the term of
protection expires in the fiftieth year after the death of the last surviving
co-author;
c/ The term of protection
specified at Points a and b of this Clause expires at 24:00 hrs of December 31
of the year of expiration of the copyright protection term"
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"Article 30. Rights of
producers of phonograms and video recordings
1. Producers of phonograms and
video recordings have the exclusive right to exercise or authorize others to
exercise the following rights:
a/ To directly or indirectly
reproduce their phonograms and video recordings;
b/ To import and distribute to
the public their original phonograms and video recordings and copies thereof by
sale, rent or distribution by whatever technical means accessible by the
public.
2. Producers of phonograms and
video recordings will enjoy material benefits when their phonograms and video
recordings are distributed to the public."
10. To
amend and supplement Article 33 as follows:
"Article 33. Cases of use
of related rights in which permission is not required but payment of royalties
or remunerations is required
1. Organizations and individuals
that directly or indirectly use phonograms or video recordings already
published for commercial purposes in making their broadcasts, which are
sponsored, advertised or charged in whatever form, arc not required to obtain
permission but have to pay agreed royalties or remunerations to authors,
copyright holders, performers or producers of phonograms or video recordings,
or broadcasting organizations from the date of use. In case no agreement is
reached, they shall comply with regulations of the Government or institute
lawsuits at court under law.
Organizations and individuals
that directly or indirectly use phonograms or video recordings already
published for commercial purposes in making their broadcasts, which are not
sponsored, advertised or charged in whatever form, are not required to obtain
permission but have to pay agreed royalties or remunerations to authors,
copyright holders, performers or producers of phonograms or video recordings,
or broadcasting organizations from the date of use under regulations of the
Government.
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3. Organizations and individuals
that use the rights provided for in Clauses 1 and 2 of this Article must
neither affect the normal utilization of performances, phonograms, video
recordings or broadcasts, nor prejudice the rights of performers, producers of
phonograms and video recordings, and broadcasting organizations."
11. To
amend and supplement Article 41 as follows:
"Article 41. Copyright
holders being right assignees
1. Organizations and individuals
that are assigned one, several or all of the rights specified in Article 20 and
Clause 3, Article 19 of this Law under contracts are copyright holders.
2. Organizations and individuals
that are managing anonymous works enjoy rights of owners until the names of
authors of these works are identified."
12. To
amend and supplement Article 42 as follows:
"Article 42. Copyright
holders being the State
1. The State is the holder of
copyright to the following works:
a/ Anonymous works, except those
specified in Clause 2. Article 41 of this Law;
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c/ Works over which the
ownership right has been assigned by their copyright holders to the State.
2. The Government shall specify
the use of works under state ownership."
13. To
amend and supplement Article 87 as follows:
"Article 87. Right to
register marks
1. Organizations and individuals
may register marks to be used for goods they produce or services they provide.
2. Organizations and individuals
that conduct lawful commercial activities may register marks for products they
are marketing but produced by others, provided that the producers neither use
such marks for their products nor object to such registration.
3. Lawfully established
collective organizations may register collective marks to be used by their
members under regulations on use of collective marks. For signs indicating
geographical origins of goods or services, organizations that may register them
are collective organizations of organizations or individuals engaged in
production or trading in relevant localities. For other geographical names or
signs indicating geographical origins of local specialties of Vietnam, the
registration must be permitted by competent state agencies.
4. Organizations with the
function of controlling and certifying the quality, properties, origin or other
relevant criteria of goods or services may register certification marks,
provided that they are not engaged in the production or trading of these goods
or services. For other geographical names or signs indicating geographical
origins of local specialties of Vietnam, the registration thereof must be
permitted by a competent state agency.
5. Two or more organizations or
individuals may jointly register a mark in order to become its co-owners on the
following conditions:
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b/ The use of this mark causes
no confusion to consumers as to the origin of goods or services.
6. Persons having the
registration right defined in Clauses 1, 2, 3, 4 and 5 of this Article,
including those having filed registration applications, may assign the
registration right to other organizations or individuals in the form of written
contracts, bequeathal or inheritance under law, provided that the assigned
organizations or individuals satisfy the relevant conditions on the persons
having the registration right.
7. For a mark protected in a
country being a contracting party to a treaty which prohibits the
representative or agent of a mark owner to register such mark and to which the
Socialist Republic of Vietnam is also a contracting party, this representative
or agent is not permitted to register the mark unless it is so agreed by the
mark owner, unless a justifiable reason is available."
14. To
amend and supplement Article 90 as follows:
"Article 90. The
first-to-file principle
1. In case many applications are
filed for registration of the same invention or similar inventions, or for
registration of industrial designs identical with or insignificantly different
from one another, the protection title may only be granted to the valid
application with the earliest priority or filing date among applications
satisfying all the conditions for the grant of a protection title.
2. In case there are many
applications filed by different persons for registration of identical or
confusingly similar marks for identical or similar products or services, or in
case there are many applications filed by the same person for registration of
identical marks for identical products or services, the protection title may
only be granted for the mark in the valid application with the earliest
priority or filing date among applications satisfying all the conditions for
the grant of a protection title.
3. In case there are many
registration applications specified in Clauses 1 and 2 of this Article and
satisfying all the conditions for the grant of a protection title and having
the same earliest priority or filing date, the protection title may only be
granted for the object of a single application out of these applications under
an agreement of all applicants. Without such agreement, all relevant objects of
these applications will be refused for the grant of a protection title."
15. To
amend and supplement Article 119 as follows:
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1. An industrial property
registration application will have its form examined within one month from the
filing date.
2. An industrial property
registration application shall be substantively examined within the following
time limits:
a/ For an invention, eighteen
months from the date of its publication if a request for substantive
examination is filed before the date of application publication, or from the
date of receipt of a request for substantive examination if such request is
filed after the date of application publication;
b/ For a mark, nine months from
the date of application publication;
c/ For an industrial design,
seven months from the date of application publication:
d/ For a geographical
indication, six months from the date of application publication.
3. The time limit for
re-examination of an industrial property registration application is equal to
two-thirds of the time limit for the initial examination and may, in
complicated cases, be prolonged but must not exceed the lime limit for the initial
examination.
4. The duration for modification
or supplementation of applications by applicants will not be counted into the
time limit specified in Clause 1, 2 or 3 of this Article. The time limit for
processing requests for modification or supplementation of applications must
not exceed one-third of the corresponding time limit specified in Clause 1 or 2
of this Article."
16. To
amend and supplement Article 134 as follows:
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1. In case a person has. before
the filing date or priority date (if any) of an invention or industrial design
registration application, used or prepared necessary conditions for using an
invention or industrial design identical with the protected invention or
industrial design stated in that registration application but created
independently (below referred to as prior use right holder), then after a
protection title is granted, he/she may continue using such invention or industrial
design within the scope and volume of use or use preparations without having to
obtain permission of or paying compensations to the owner of the protected
invention or industrial design. The exercise of the right of prior users of
inventions or industrial designs is not regarded as an infringement upon the
right of invention or industrial design owners.
2. Holders of prior use right to
inventions or industrial designs may not assign such right to others, unless
that right is assigned together with the transfer of business or production
establishments which have used or are prepared to use the inventions or
industrial designs. Prior use right holders may not expand the use scope and
volume unless it is so permitted by invention or industrial design owners."
17. To
amend and supplement Article 154 as follows:
"Article 154. Conditions
for industrial property representation service business
Organizations that satisfy the
following conditions may provide industrial property representation services as
industrial property representation service organizations:
1. Being law-practicing
businesses, cooperatives or organizations, or scientific and technological
service organizations lawfully established and operating, except foreign
law-practicing organizations operating in Vietnam;
2. Having the function of
providing industrial property representation services, which is stated in their
business registration certificates or operation registration certificates
(below collectively referred to as business registration certificates);
3. Their heads or persons
authorized by their heads must satisfy the conditions for industrial property
representation service practice, specified in Clause 1, Article 155 of this
Law."
18. To
amend and supplement Article 157 as follows:
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1. Organizations and individuals
that have rights to plant varieties protected are those that select and breed
or discover and develop plant varieties or invest in the selection and breeding
or the discovery and development of plant varieties or are transferred rights
to plant varieties.
2. Organizations and individuals
defined in Clause I of this Article include Vietnamese organizations and
individuals; organizations and individuals of foreign countries which have
concluded with the Socialist Republic of Vietnam agreements on the protection
of plant varieties: foreign organizations and individuals that have permanent
offices or residences in Vietnam or have establishments producing or trading in
plant varieties in Vietnam: foreign organizations and individuals that have
permanent offices or residences or establishments producing or trading in plant
varieties in countries which have concluded with the Socialist Republic of Vietnam
agreements on the protection of plant varieties."
19. To
amend and supplement Article 160 as follows:
"Article 160. Distinctness
of plant varieties
1. A plant variety will be
considered distinct if it is clearly distinguishable from any other plant
variety whose existence is a matter of common knowledge at the time of filing
the application or 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
are those falling into one of the following cases:
a/ Their reproductive or
harvested materials have been widely used in the market of any country at the
time of filing of the protection registration application;
b/ They have been protected or
registered in the list of plant varieties in any country:
c/ They are subject matters of
protection registration applications or applications for registration in the
list of plant varieties in any country, provided that these applications arc
not rejected."
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"Article 163. Denominations
of plant varieties
1. The registrant shall
designate with the state management agency in charge of rights to plant
varieties a proper denomination for a plant variety which must be the same as
the denomination already registered for protection in any country which has
concluded with the Socialist Republic of Vietnam an agreement on the protection
of plant varieties.
2. The denomination of a plant
variety shall be considered proper if it is distinguishable from those of other
plant varieties of common knowledge in the same or similar species.
3. Denominations of plant
varieties shall be considered improper in the following cases:
a/ They consist of numerals
only, unless such numerals are relevant to characteristics or the breeding of
such varieties:
b/ They violate social ethics:
c/ They may easily cause
misleading as to features or characteristics of such varieties;
d/ They may easily cause
misleading as to identifications of the breeders;
e/ They are identical or
confusingly similar to marks, trade names or geographical indications protected
before the date of publication of protection registration applications of such
plant varieties;
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4. Organizations and individuals
that offer for sale or market reproductive materials of plant varieties shall
use the denominations of such plant varieties as stated in their protection
titles even after the expiration of the term of protection.
5. When denominations of plant
varieties are combined with trademarks, trade names or indications similar to
denominations of plant varieties already registered for sale offer or marketed,
such denominations must still be distinguishable."
21. To
amend and supplement Article 165 as follows:
"Article 165. Registration
of rights to plant varieties
1. Organizations and individuals
defined in Article 157 of this Law may file applications for registration of
rights to plant varieties (below referred to as protection registration
applications) directly or through their lawful representatives in Vietnam.
2. Organizations that satisfy
the following conditions may provide services of representing rights to plant
varieties in the capacity as rights-to-plant varieties representation service
organizations:
a/ Being Vietnamese
law-practicing businesses, cooperatives or organizations, scientific and
technological service organizations which are lawfully established and
operating, except foreign law-practicing organizations practicing in Vietnam:
b/ Having the function of
providing rights-to-plant varieties representation services as stated in their
business registration certificates or operation registration certificates
(below collectively referred to as business registration certificates);
3. Heads of those organizations
or persons authorized by heads of those organizations who satisfy the
conditions specified in Clauses 4 and 5 of this Article may provide services of
representing rights to plant varieties.
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a/ Possessing a rights-to-plant
varieties representation service practice certificate;
b/ Working in a rights-to-plant
varieties representation service organization.
5. Individuals who satisfy the
following conditions will be granted rights-to-plant varieties representation
service practice certificates:
a/ Being a Vietnamese citizen
and having the full civil act capacity:
b/ Permanently residing in
Vietnam;
c/ Possessing a university
degree:
d/ Having personally conducted
legal activities related to rights to plant varieties for five or more
consecutive years, or personally examined various applications for registration
of rights to plant varieties in a national or international office for rights
to plant varieties for five or more consecutive years, or graduated from a
training course on the law on rights to plant varieties as recognized by a
competent agency;
e/ Being other than civil
servants or public employees currently working in state agencies competent to
establish and secure the enforcement of rights to plant varieties;
f/ Having passed an examination
of the profession of representing rights to plant varieties, organized by a competent
agency.
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22. To
amend and supplement Article 186 as follows:
"Article 186. Rights of
protection certificate holders
1. A protection certificate
holder has 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 them for the purpose
of propagation;
c/ To offer them for sale;
d/ To sell them or conduct other
marketing activities:
e/ To export them;
f/ To import them:
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2. Rights of a plant variety
protection title holder provided for in Clause 1 of this Article are applicable
to materials harvested from the illegal use of reproductive materials of a
protected plant variety, unless the protection title holder does not exercise
his/her rights to reproductive materials though having art-opportunity to do
so.
3. To prevent others from using
the plant variety under Article 188 of this Law.
4. To pass by inheritance or
bequeath or assign the rights to the plant variety under Chapter XV of this
Law."
23. To
amend and .supplement Article 187 as follows:
"Article 187. Extension of
rights of protection certificate holders
Rights of a protection
certificate holder may be extended to the following plant varieties:
1. Plant varieties which
originate mainly from the protected plant variety, unless such protected plant
variety itself originates from another protected plant variety.
A plant variety is considered
originating 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 differences resulting
from impacts on the protected variety:
2. Plant varieties which are not
definitely distinct from the protected plant variety;
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24. To
supplement and supplement Article 190 as follows:
"Article 190. Limitations
on rights of plant variety protection certificate holders
1. The following acts are not
regarded as infringements of rights to protected plant varieties:
a/ Using plant varieties for
personal and noncommercial purposes;
b/ Using plant varieties for
testing purposes;
c/ Using plant varieties to create
new plant varieties, except the case specified in Article 187 of this Law;
d/ Using harvested materials of
protected plant varieties by individual production households for
self-propagation and cultivation in the next season on their own land areas.
2. Rights to plant varieties are
not applicable to acts related to materials of protected plant varieties which
have been sold or otherwise brought into the Vietnamese or foreign markets by
protection certificate holders or their licensees, except the following acts:
a/ Acts relating to further
propagation of such plant varieties:
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25. To
amend and supplement Article 194 as follows:
"Article 194. Assignment of
rights to plant varieties
1. Assignment of rights to a
plant variety means the transfer by the plant variety protection certificate holder
of all rights to that plant variety to the assignee. The assignee will become
the plant variety protection certificate holder from the date of registration
of the assignment contract with a slate management agency in charge of rights
to plant varieties according to law-prescribed procedures.
2. In case rights to a plant
variety are under joint ownership, the assignment of these rights to another
person must be agreed upon by all co-owners.
3. The assignment of rights to a
plant variety must be effected in the form of written contract.
4. The assignment of rights to a
plant variety created with slate budget funds complies with the Law on
Technology Transfer."
26. To
amend and supplement Article 201 as follows:
"Article 201. Intellectual
property assessment
1. Intellectual properly
assessment means the use by organizations or individuals defined in Clauses 2
and 3 of this Article of their professional knowledge and expertise to assess
and make conclusion on matters related to intellectual property rights.
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a/ Having personnel and
physical-technical foundations meeting law-prescribed requirements on
assessment operations:
b/ Having the function of
conducting intellectual property assessment as stated in their business
registration certificates or operation registration certificates:
c/ Their heads or persons
authorized by their heads possess intellectual property assessor cards.
3. Individuals who fully satisfy
the following conditions may be granted intellectual property assessor cards by
competent state agencies:
a/ Being a Vietnamese citizen
and having full civil act capacity:
b/ Permanently residing in
Vietnam:
c/ Possessing good ethical
qualities:
d/ Possessing a university or
higher degree in a profession relevant to domains in which an assessor card is
applied for having conducted professional activities in these domains for five
or more years and passed a professional assessment examination.
4. State agencies competent to
handle acts of infringing upon intellectual property rights may request intellectual
property assessment when handling cases or matters they have accepted.
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6. The Government shall specify
intellectual property assessment organization and activities."
27. To
amend and supplement Article 211 as follows:
"Article 211. Intellectual
property right infringements subject to administrative sanction
1. Organizations and individuals
that commit any of the following acts of infringing upon intellectual property
rights shall be administratively sanctioned:
a/ Infringing upon intellectual
property rights which causes damage to authors, owners, consumers or society;
b/ Producing, importing,
transporting or trading in intellectual property counterfeit goods defined in
Article 213 of this Law or assigning others to do so;
c/ Producing, importing,
transporting, trading in or storing stamps, labels or other articles bearing a
counterfeit mark or geographical indication or assigning others to do so.
2. The Government shall specify
acts of infringing upon intellectual property rights which shall be
administratively sanctioned, sanctioning forms and levels, and sanctioning procedures.
3. Organizations and individuals
that commit acts of unfair competition in intellectual property shall be
administratively sanctioned under the competition law."
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"Article 214. Forms of
administrative sanction and remedies
1. Organizations and individuals
that commit acts of infringing upon intellectual property rights defined in
Clause 1. Article 211 of this Law shall be compelled to terminate their
infringing acts and imposed one of the following principal sanctions
a/ Caution;
b/ Fine.
2. Depending on the nature and
seriousness of their infringements, intellectual property rights-infringing
organizations or individuals arc also subject to either of the following
additional sanctions:
a/ Confiscation of intellectual
property counterfeit goods, raw materials, materials and means used mainly for
the production or trading of these intellectual property counterfeit goods;
b/ Suspension for a definite
time of business activities in domains where infringements have been committed.
3. In addition to the sanctions
specified in Clauses I and 2 of this Article, intellectual property rights
infringers are also subject to either or both of the following consequence
remedies:
a/ Compelled destruction or
distribution or use for non-commercial purposes of intellectual properly
counterfeit goods as well as raw materials, materials and means used mainly for
the production or trading of these intellectual property counterfeit goods,
provided that the destruction, distribution or use does not affect the
exploitation of rights by intellectual property right holders:
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4. Administrative sanctions and
the competence to administratively sanction infringements upon intellectual
property rights comply with the law on handling of administrative
violations."
29. To
amend and supplement Article 218 as follows:
"Article 218. Procedures
for application of the measure of suspension of customs procedures
1. When persons requesting the
suspension of customs procedures have fulfilled their obligations specified in
Article 217 of this Law, customs offices shall issue decisions on suspension of
customs procedures with regard to goods lots in question.
2. The duration of suspension of
customs procedures is ten working days after the customs procedure suspension
requester receives the customs office's notice of customs procedures
suspension. In case the customs procedure suspension requester has a
justifiable reason, this duration may be prolonged but must not exceed twenty
working days, provided that the requester deposits a security specified in
Clause 2, Article 217 of this Law.
3. Upon the expiration of the
duration specified in Clause 2 of this Article, if customs procedure suspension
requesters do not institute civil lawsuits and customs offices decide not to
accept the cases for handling of administrative violations of goods lot
exporters or importers according to administrative procedures, customs offices
have the following responsibilities:
a/ To continue carrying out
customs procedures for goods lots in question:
b/ To compel customs procedure
suspension requesters to compensate all the damage caused to goods lot owners
due to their unreasonable requests, and pay expenses for the warehousing and
preservation of goods as well as other expenses incurred by customs offices and
other related agencies, organizations and individuals under the customs law:
c/ To refund to customs
procedure suspension requesters the remaining security amount after the
obligation of paying compensations and expenses specified at Point b of this
Clause is fulfilled."
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"Article 220. Transitional
provisions
1. Copyright and related rights
protected under legal documents which took effect before the effective date of
this Law continue to be protected under this Law if they remain in the term of
protection by that date.
2. Applications for registration
of copyright, related rights, inventions, utility solutions, industrial
designs, trademarks, appellations of origin of goods, layout-designs or plant
varieties, which have been filed with competent agencies before the effective date
of this Law, continue to be processed under legal documents effective at the
time of their filing.
3. All rights and obligations
conferred by protection titles granted under the provisions of law which are
effective before the effective date of this Law and procedures for maintenance,
renewal, modification, invalidation, licensing, ownership assignment,
settlement of disputes relating to these protection titles are governed by this
Law, except grounds for invalidation of protection titles which are subject to
the provisions of law which are effective at the time of grant of these
protection titles. This provision also applies to decisions on registration of
appellations of origin of goods issued under the provisions of law which are
effective before the effective date of this Law. State management agencies in
charge of industrial property rights shall carry out procedures for the grant
of geographical indication registration certificates for appellations of origin
of goods.
4. Trade secrets and trade names
which have been existing and protected under the Government's Decree No.
54/2000/ND-CP of October 3, 2000, on the protection of industrial property
rights to trade secrets, geographical indications, trade names and the
protection of the right to repression of industrial property-related unfair
competition, continue to be protected under this Law.
5. From the effective date of
this Law, geographical indications, including those protected under the Decree
mentioned in Clause 4 of this Article, may only be protected after they are
registered under this Law."
Article 2.
To replace the phrase "Ministry of Culture and
Information" with the phrase "Ministry of Culture. Sports and
Tourism" in Clauses 2, 3 and 5, Article 11; Point a, Clause 2, Article 50,
and Clause 4, Article 51 of Law No. 50/2005/QHI1 on Intellectual Property.
Article 3.
1. This
Law takes effect on January 1, 2010.
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This Law was passed on June 19,
2009, by the XIIth National Assembly of the Socialist Republic of
Vietnam at its 5th session.
CHAIRMAN
OF THE NATIONAL ASSEMBLY
Nguyen Phu Trong