ORDER No. 28/2005/L-CTN OF DECEMBER 12, 2005, ON THE
PROMULGATION OF LAW
THE PRESIDENT OF THE
Pursuant
to Article 103 and Article 106 of the 1992 Constitution of the Socialist
Republic of Vietnam, which was amended and supplemented under
Resolution No. 51/2001/QH10 of December 25, 2001, of the Xth
National Assembly, the 10th session;
Pursuant
to Article 91 of the Law on Organization of the National Assembly;
Pursuant
to Article 50 of the Law on Promulgation of Legal Documents,
HEREBY PROMULGATES:
The Law on Intellectual Property,
which
was passed on November 29, 2005, by the XIth National Assembly of
the Socialist Republic of Vietnam at its 8th session.
President
of the
TRAN DUC LUONG
LAW
ON INTELLECTUAL PROPERTY
(No.
50/2005/QH11)
Pursuant
to the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented under Resolution No.
51/2001/QH10 of December 25, 2001, of the Xth National Assembly, the
10th session;
This Law provides
for intellectual property.
Part One
GENERAL
PROVISIONS
Article 1.- Governing scope
This Law
provides for copyright, copyright-related rights, industrial property rights,
rights to plant varieties and the protection of these rights.
Article 2.- Subjects of application
This Law
applies to Vietnamese organizations and individuals; foreign organizations and
individuals that satisfy the conditions specified in this Law and treaties to
which the Socialist Republic of Vietnam is a contracting party.
Article 3.- Subject matters of intellectual property rights
1. Subject
matters of copyright include literary, artistic and scientific works; subject
matters of copyright-related rights include performances, phonograms, video
recordings, broadcasts and encrypted program-carrying satellite signals.
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 plant varieties and reproductive
materials.
Article 4.- Interpretation of terms
In this
Law, the following terms shall be construed as follows:
1.
Intellectual property rights mean rights of organizations and individuals to
intellectual assets, including copyright and copyright-related rights,
industrial property 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 (hereinafter referred to as related rights) mean
rights of organizations and individuals to performances, phonograms, video
recordings, broadcasts and encrypted program-carrying satellite signals.
4.
Industrial property rights mean rights of organizations and individuals to
inventions, industrial designs, layout-designs of semiconductor integrated
circuits, trade secrets, marks, trade names and geographical indications they
have created or own, and right to repression of unfair competition.
5. Rights
to plant varieties mean rights of organizations and individuals to new plant
varieties they have selected, created or discovered and developed, or own.
6. An
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. A 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. A
derivative work means a work which is translated from one language into
another, adapted, modified, transformed, compiled, annotated or selected.
9. A
published work, phonogram or video recording means a work, phonogram or video
recording which has been made available to the public with the permission of
the copyright holder or related right holder in a reasonable amount of copies.
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 permanent or
provisional backup of the work in electronic form.
11.
Broadcasting means the transmission of sound or image or both sound and image
of a work, 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. An
invention means a technical solution in form of a product or a process which is
intended to solve a problem by application of laws of nature.
13. An
industrial design means a specific appearance of a product embodied by
three-dimensional configurations, lines, colors, or a combination of these
elements.
14. A
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.
15. A
layout-design of semiconductor integrated circuit (hereinafter referred to as
layout-design) means a three-dimensional disposition of circuit elements and
their interconnections in a semiconductor integrated circuit.
16. A mark
means any sign used to distinguish goods and/or services of different
organizations or individuals.
17. A
collective mark means a mark used to distinguish goods and/or services of
members from those of non-members of an organization which is the owner of such
mark.
18. A
certification mark means a mark which is authorized by its owner to be used by
another organization or individual on the latter’s goods and/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 and/or services bearing the mark.
19. An
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. A
well-known mark means a mark widely known by consumers throughout the
Vietnamese territory.
21. A
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. A
geographical indication means a sign which identifies a product as originating
from a specific region, locality, territory or country.
23. A
trade secret means information obtained from activities of financial and/or
intellectual investment, which has not yet been disclosed and can be used in
business.
24. A
plant variety means a plant grouping within a single botanical taxon of the
lowest known rank, which is morphologically uniform and suitable for being
propagated unchanged, and can be defined by the expression of phenotypes
resulting from a genotype or a combination of given genotypes, and
distinguished from any other plant grouping by the expression of at least one
inheritable phenotype.
25. A
protection title means a document granted by the 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.
Article 5.- Application of law
1. Where
there exist intellectual property-related civil
matters which are not provided for in this Law, the provisions of the Civil
Code shall apply.
2. Where
there exist differences between this Law’s provisions
on intellectual property and those of other laws, the provisions of this Law
shall apply.
3. Where a
treaty to which the Socialist Republic of Vietnam is a contracting party
contains provisions different from those of this Law, the provisions of such
treaty shall apply.
Article 6.- Bases for the emergence and establishment of intellectual
property rights
1.
Copyright shall arise at the moment when a work is created and fixed in a
certain material form, irrespective of its content, quality, presentation,
means of fixation, language and whether or not it has been published or
registered.
2. Related
rights shall arise at the moment when a performance, phonogram, video
recording, broadcast or encrypted program-carrying satellite signal is fixed or
displayed without any prejudice to copyright.
3.
Industrial property rights are established as follows:
a/
Industrial property rights to an invention, industrial design, layout-design,
mark or geographical indication shall be established on the basis of a decision
of the competent state agency on the grant of a protection title according to
the registration procedures stipulated in this Law or the recognition of
international registration under treaties to which the Socialist Republic of
Vietnam is a contracting party; for a well-known mark, industrial property
rights shall be established on the basis of use process, not subject to any
registration procedures.
b/
Industrial property rights to a trade name shall be established on the basis of
lawful use thereof;
c/
Industrial property rights to a trade secret shall be established on the basis
of lawful acquirement and confidentiality thereof;
d/
Rights to repression of unfair competition shall be established on the basis of
competition in business.
4. Rights
to a plant variety shall be established on the basis of a decision of the
competent state agency on the grant of plant variety protection title according
to the registration procedures specified in this Law.
Article 7.- Limitations on intellectual property rights
1.
Intellectual property right holders shall 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 be prejudicial to 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 life-related
objectives and other interests of the State and society specified in this Law
should 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
with appropriate terms.
Article 8.- The State’s intellectual property policies
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 the social ethics and public order and
prejudicial to defense and security.
2. To
encourage and promote activities of creation and utilization of intellectual
assets in order to contribute to the socio-economic development and the
improvement of the people’s material and spiritual life.
3. To
provide financial supports for the receipt and exploitation of assigned
intellectual property rights for public interests; to encourage organizations
and individuals at home or abroad to provide financial aids for creative
activities and the protection of intellectual property rights.
4. To
prioritize investment in training and fostering the contingent of cadres,
public servants and other relevant subjects engaged in the protection of
intellectual property rights and the research into and application of sciences
and techniques to the protection of intellectual property rights.
Article 9.- Right and responsibility of organizations and individuals
for the protection of intellectual property rights
Organizations
and individuals have the right to apply measures allowed by law to protect
their intellectual property rights and have the responsibility to respect
intellectual property rights of other organizations and individuals in
accordance with the provisions of this Law and other relevant provisions of
law.
Article 10.- Contents of state management of intellectual property
1.
Formulating and directing the materialization of strategies and policies on
protection of intellectual property rights.
2.
Promulgating and organizing the implementation of legal documents on
intellectual property.
3.
Organizing the apparatus for management of intellectual property; training and
fostering intellectual property personnel.
4.
Granting and carrying out other procedures related to registered
copyright certificates, registered related rights certificates, protection
titles for industrial property objects and plant variety protection titles.
5.
Inspecting and examining the observance of intellectual property law; settling
complaints and denunciations, and handling violations of intellectual property
law.
6.
Organizing intellectual property information and statistical activities.
7.
Organizing and managing intellectual property assessment activities.
8.
Educating, communicating and disseminating intellectual property knowledge and
law.
9.
Entering into international cooperation on intellectual property.
Article 11.- Responsibilities for state management of intellectual
property
1. The
Government shall exercise unified state management of intellectual property.
2. The
Science and Technology Ministry shall be answerable to the Government for
assuming the prime responsibility for, and coordinating with the Culture and
Information Ministry and the Agriculture and Rural Development Ministry in,
performing the state management of intellectual property and the state
management of industrial property rights.
The
Culture and Information Ministry shall, within the ambit of its tasks and
powers, perform the state management of copyright and related rights.
The
Agriculture and Rural Development Ministry shall, within the ambit of its tasks
and powers, perform the state management of rights to plant varieties.
3.
Ministries, ministerial-level agencies and Government-attached agencies shall,
within the ambit of their tasks and powers, have to coordinate with the Science
and Technology Ministry, the Culture and Information Ministry, the Agriculture
and Rural Development Ministry and provincial/municipal People’s Committees in
performing the state management of intellectual property.
4.
People’s Committees at all levels shall perform the state management over
intellectual property in their localities.
5. The
Government shall specify the powers and responsibilities for state management
of intellectual property of the Science and Technology Ministry, the Culture
and Information Ministry, the Agriculture and Rural Development Ministry and
People’s Committees at all levels.
Article 12.- Intellectual property fees and charges
Organizations
and individuals shall have to pay fees and/or charges when carrying out the
procedures related to intellectual property rights according to the provisions
of this Law and other relevant provisions of law.
Part Two
COPYRIGHT
AND RELATED RIGHTS
Chapter I
CONDITIONS
FOR PROTECTION OF COPYRIGHT AND RELATED RIGHTS
Section 1.
CONDITIONS FOR PROTECTION OF COPYRIGHT
Article 13.- Authors and copyright holders that have works covered by
copyright
1.
Organizations and individuals that have works covered by copyright include
persons who personally create such works and copyright holders defined in
Articles 37 thru 42 of this Law.
2. Authors
and copyright holders defined in Clause 1 of this Article include Vietnamese
organizations and individuals; foreign organizations and individuals that have
works first published in Vietnam and not yet published in any other country, or
simultaneously published in Vietnam within thirty days after its first
publication in another country; foreign organizations and individuals that have
works protected in Vietnam under international conventions on copyright to
which the Socialist Republic of Vietnam is a contracting party.
Article 14.- Types of works covered by copyright
1.
Literary, artistic and scientific works covered by copyright include:
a/
Literary and scientific works, textbooks, teaching courses and other works
expressed in written languages or other characters;
b/
Lectures, addresses and other sermons;
c/
Press works;
d/
Musical works;
e/
Dramatic works;
f/
Cinematographic works and works created by a process analogous to
cinematography (hereinafter referred to collectively as cinematographic works);
g/
Plastic-art works and works of applied art;
h/
Photographic works;
i/
Architectural works;
j/
Sketches, plans, maps and drawings related to topography or scientific works;
k/
Folklore and folk art works of folk culture;
l/
Computer programs and compilations of data.
2.
Derivative works shall be protected according to the provisions of Clause 1 of
this Article only if it is not prejudicial to the copyright to works used to
create such derivative works.
3.
Protected works defined in Clauses 1 and 2 of this Article must be created
personally by authors through their intellectual labor without copying others’
works.
4. The
Government shall guide in detail the types of works specified in Clause 1 of
this Article.
Article 15.- Subject matters not covered by copyright protection
1. News of
the day as mere items of press information.
2. Legal
documents, administrative documents and other documents in the judicial domain
and official translations of these documents.
3.
Processes, systems, operation methods, concepts, principles and data.
Section 2.
CONDITIONS FOR PROTECTION OF RELATED RIGHTS
Article 16.- Organizations and individuals eligible for protection of
related rights
1.
Actors/actresses, singers, instrumentalists, dancers and other persons who
perform literary and artistic works (hereinafter referred to collectively as
performers).
2.
Organizations and individuals that own performances defined in Clause 1,
Article 44 of this Law.
3.
Organizations and individuals that first fix sounds and images of performances
or other sounds and images (hereinafter referred to collectively as producers
of phonograms and video recordings).
4.
Organizations which initiate and carry out the broadcasting (hereinafter
referred to as broadcasting organizations).
Article 17.- Subject matters of related rights eligible for protection
1.
Performances shall be protected if they fall into one of the following cases:
a/ They
are made by Vietnamese citizens in
b/ They
are made by foreigners in
c/ They
are fixed on phonograms or video recordings, and protected under the provisions
of Article 30 of this Law;
d/ They
have not yet been fixed on phonograms or video recordings but already been
broadcast, and are protected under the provisions of Article 31 of this Law;
e/ They
are protected under treaties to which the Socialist Republic of Vietnam is a
contracting party.
2.
Phonograms and video recordings shall be protected if they fall into one of the
following cases:
a/ They
belong to phonogram and video recording producers bearing the Vietnamese nationality;
b/ They
belong to phonogram and video recording producers protected under treaties to
which the Socialist Republic of Vietnam is a contracting party.
3.
Broadcasts and encrypted program-carrying satellite signals shall be protected
if they fall into one of the following cases:
a/ They
belong to broadcasting organizations bearing the Vietnamese nationality;
b/ They
belong to broadcasting organizations protected under treaties to which the
Socialist Republic of Vietnam is a contracting party.
4. Performances,
phonograms, video recordings, broadcasts and encrypted program-carrying
satellite signals shall only be protected under the provisions of Clauses 1, 2
and 3 of this Article provided that they are not prejudicial to copyright.
Chapter II
CONTENTS
OF, LIMITATIONS ON AND TERM OF PROTECTION OF COPYRIGHT AND RELATED RIGHTS
Section 1.
CONTENTS OF, LIMITATIONS ON AND TERM OF PROTECTION OF COPYRIGHT
Article 18.- Copyright
Copyright
to works provided for in this Law consists of moral rights and economic rights.
Article 19.- Moral rights
Moral
rights of authors include the following rights:
1. To
title their works;
2. To
attach their real names or pseudonyms to their works; to have their real names
or pseudonyms acknowledged when their works are published or used;
3. To
publish their works or authorize other persons to publish their works;
4. To
protect the integrity of their works, and to prevent other persons from
modifying, mutilating or distorting their works in whatever form prejudicial to
their honor and reputation.
Article 20.- Economic rights
1.
Economic rights of authors include the following rights:
a/ To
make derivative works;
b/ To
display their works to the public;
c/ To
reproduce their works;
d/ To
distribute or import original works or copies thereof;
e/ To
communicate their works to the public by wire or wireless means, electronic
information networks or any other technical means;
f/ To
lease original cinematographic works and computer programs or copies
thereof.
2. The rights specified in Clause 1 of this
Article shall be exclusively exercised by authors or copyright holders, or
granted by authors or copyright holders to other persons for exercise under the
provisions of this Law.
3.
Organizations and individuals, when exercising one, several or all of the
rights specified in Clause 1, this Article and Clause 3, Article 19 of this
Law, shall have to ask for permission of and pay royalties, remunerations and
other material benefits to copyright holders.
Article 21.- Copyright to cinematographic works and dramatic works
1. Persons
who act as directors; screenwriters; cameramen; montage-makers; music
composers; art designers; studio sound, lighting and art designers; studio
instrument and technical-effect designers, and persons engaged in other
creative jobs in the making of cinematographic works, shall enjoy the rights
specified in Clauses 1, 2 and 4, Article 19 of this Law and other agreeable
rights.
Persons
who act as directors, playwrights, choreographers, music composers, art
designers, stage sound, lighting and art designers, stage instrument and
technical-effect designers, and persons engaged in other creative jobs in the
making of dramatic works, shall enjoy the rights specified in Clauses 1, 2 and
4, Article 19 of this Law and other agreeable rights.
2.
Organizations and individuals that invest their finance and material-technical
facilities in the production of cinematographic works and dramatic works shall
be holders of the rights specified in Clause 3, Article 19 and Article 20 of this
Law.
3.
Organizations and individuals defined in Clause 2 of this Article are obliged
to pay royalties, remunerations and other material benefits as agreed upon with
the persons defined in Clause 1 of this Article.
Article 22.- Copyright to computer programs and compilations of
data
1. A
computer program means a set of instructions which is expressed in form of
commands, codes, diagrams or any other form and, when incorporated in a device
readable to computers, capable of enabling such computers to perform a job or
achieve a designated result.
Computer
programs shall be protected like literary works, irrespective of whether they
are expressed in form of source codes or machine codes.
2. A
compilation of data means a set of data selected or arranged in a creative
manner and expressed in electronic form or other forms.
The
protection of copyright to compilations of data does not cover, and is not
prejudicial to copyright to those very data.
Article 23.- Copyright to folklore or folk art works of folklore
1.
Folklore or folk art works mean collective creations based on traditions of a
community or individuals reflecting such community’s earnest expectations, of
which the expression is appropriate to its cultural and social characteristics,
and its standards and values, which have been handed down by imitation or other
modes. Folklore and folk art works include:
a/ Folk
tales, lyrics and riddles;
b/ Folk
songs and melodies;
c/ Folk
dances, plays, rites and games;
d/ Folk
art products, including graphics, paintings, sculptures, musical instruments,
architectural models, and products of other folk arts expressed in whatever
material form.
2.
Organizations and individuals using folklore and folk art works of folklore
must refer to their sources and preserve their true values.
Article 24.- Copyright to literary, artistic and scientific works
The
protection of copyright to literary, artistic and scientific works provided for
in Clause 1, Article 14 of this Law shall be specified by the Government.
Article 25.- Cases of use of published works where permission and
payment of royalties and/or remunerations are not required
1. Cases
of use of published works where permission or payment of royalties and/or
remunerations is not required include:
a/
Duplication of works by authors for scientific research or teaching 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;
e/
Reprographic reproduction of works by libraries for archival and research
purpose;
f/
Performance of dramatic works or other performing-art works in mass cultural,
communication or mobilization activities without collecting any charges in any
form;
g/
Audiovisual recording of performances for purpose of reporting current events
or for teaching purpose;
h/
Photographing or televising of plastic art, architectural, photographic,
applied-art works displayed at public places for purpose of presenting images
of such 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 must neither affect the normal utilization of such works nor cause
prejudice to rights of the authors and/or copyright holders; and must 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 shall not apply to
architectural works, plastic works and computer programs.
Article 26.- Cases of use of published works where permission is not
required or but the payment of royalties and/or remunerations is required
1.
Broadcasting organizations which use published works in making their
broadcasts, which are sponsored, advertised or charged in whatever form, shall
not have to obtain permission but have to pay royalties or remunerations to
copyright holders according to the Government’s regulations.
2.
Organizations and individuals that use works defined in Clause 1 of this
Article must neither affect the normal utilization of such works nor cause any
prejudice to the rights of the authors and/or copyright holders; and must
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 shall not apply to
cinematographic works.
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 shall enjoy the following terms of
protection:
a/
Cinematographic works, photographic works, dramatic works, works of applied art
and anonymous works shall have the term of protection of fifty years as from
the date of first publication. Within fifty years after the fixation of a
cinematographic work or dramatic work, if such work has not been published, the
term of protection shall be calculated from the date of its fixation. For
anonymous works, when information on their authors appear,
the term of protection shall be calculated under the provisions of Point b of
this Clause.
b/ A
work not specified at Point a of this Clause shall be 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 shall expire 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 shall expire at 24:00
hrs of December 31 of the year of expiration of copyright protection term.
Article 28.- Acts of infringing upon copyright
1.
Appropriating copyright to literary, artistic or scientific works.
2.
Impersonating authors.
3.
Publishing or distributing works without permission of authors.
4.
Publishing or distributing works under joint-authorship without permission of
co-authors.
5.
Modifying, mutilating or distorting works in such a way as prejudicial to the
honor and reputation of authors.
6.
Reproducing works without permission of authors or copyright holders, except
for the cases specified at Points a and e, Clause 1,
Article 25 of this Law.
7. Making
derivative works without permission of authors or holders of copyright to works
used for the making of derivative works, except for the cases specified at
Point i, Clause 1, Article 25 of this Law;
8. Using
works without permission of copyright holders, without paying royalties, remunerations
or other material benefits according to the provisions of law, except for the
cases specified in Clause 1, Article 25 of this Law.
9. Leasing
works without paying royalties, remunerations or other material benefits to
authors or copyright holders.
10.
Duplicating, reproducing, distributing, displaying or communicating works to
the public via communication networks and by digital means without permission
of copyright holders.
11.
Publishing works without permission of copyright holders.
12. Willingly
canceling or deactivating technical solutions applied by copyright holders to
protect copyright to their works.
13.
Willingly deleting or modifying right management information in electronic form
in works.
14.
Manufacturing, assembling, transforming, distributing, importing, exporting,
selling or leasing equipment when knowing or having grounds to know that such
equipment may deactivate technical solutions applied by copyright holders to
protect copyright to their works.
15. Making
and selling works with forged signatures of authors of original works.
16.
Exporting, importing or distributing copies of works without permission of
copyright holders.
Section 2.
CONTENTS OF, LIMITATIONS ON, AND TERM OF PROTECTION OF RELATED RIGHTS
Article 29.- Rights of performers
1.
Performers-cum-investors shall have the moral rights and economic rights to
their performances. Where performers are not also investors, performers shall
have the moral rights whereas investors shall have the economic rights to
performances.
2. Moral
rights include the following rights:
a/ To
be acknowledged when performing or distributing phonograms, video recordings,
or broadcasting performances;
b/ To
protect the integrity of performed figures, prevent others from modifying,
mutilating or distorting works in whatever form prejudicial to the honor and
reputation of performers.
3.
Economic rights include exclusive rights to exercise or authorize others to
exercise the following rights:
a/ To
fix their live performances on phonograms or video recordings;
b/ To
directly or indirectly reproduce their performances which have been fixed on
phonograms or video recordings;
c/ To
broadcast or otherwise communicate to the public their unfixed performances in
a way accessible by the public, except where such performances are intended for
broadcasting;
d/ To
distribute to the public their original performances and copies thereof by mode
of sale, rental or distribution by whatever technical means accessible by the
public.
4.
Organizations and individuals that exploit and use the rights provided for in
Clause 3 of this Article shall have to pay remunerations to performers
according to the provisions of law or under agreements in the absence of
relevant provisions of law.
Article 30.- Rights of producers of phonograms and video recordings
1.
Producers of phonograms and video recordings shall 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
distribute to the public their original phonograms and video recordings and
copies thereof by mode of sale, rent or distribution by whatever technical
means accessible by the public.
2.
Producers of phonograms and video recordings shall enjoy material benefits when
their phonograms and video recordings are distributed to the public.
Article 31.- Rights of broadcasting
organizations
1.
Broadcasting organizations shall have the exclusive right to exercise or
authorize others to exercise the following rights:
a/ To
broadcast or rebroadcast their broadcasts;
b/ To
distribute to the public their broadcasts;
c/ To
fix their broadcasts;
d/ To
reproduce their fixed broadcasts.
2.
Broadcasting organizations shall enjoy material benefits when their broadcasts
are recorded and distributed to the public.
Article 32.- Cases of use of related rights where permission and
payment of royalties and/or remunerations are not required
1. Cases
of use of related rights where permission and payment of royalties and/or
remunerations are not required include:
a/
Duplication of works by authors for scientific research purpose;
b/
Duplication of works by authors for teaching purpose, except for performances,
phonograms, video recordings or broadcasts which have been published for teaching
purpose;
c/
Reasonable recitation for informatory purpose;
d/
Making of provisional copies of works by broadcasting organizations themselves
for broadcasting purpose when they enjoy the broadcasting right.
2.
Organizations and individuals that use the rights specified in Clause 1 of this
Article must neither affect the normal utilization of performances, phonograms,
video recordings or broadcasts, nor cause any prejudice to the rights of
performers, producers of phonograms and video recordings, and broadcasting
organizations.
Article 33.- Cases of use of related rights where permission is not
required but payment of royalties and/or remunerations is required
1.
Organizations and individuals that use related rights in the following cases
shall not have to ask for permission but must pay agreed royalties and/or
remunerations to performers, producers of phonograms and/or video recordings,
or broadcasting organizations:
a/ They
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;
b/ They
use phonograms or video recordings already published in business or commercial
activities.
2.
Organizations and individuals that use the rights specified in Clause 1 of this
Article must neither affect the normal utilization of performances, phonograms,
video recordings or broadcasts, nor cause any prejudice to the rights of
performers, producers of phonograms and video recordings, and broadcasting
organizations.
Article 34.- Term of related right protection
1. The
rights of performers shall be protected for fifty years counting from the year
following the year of fixation of their performances.
2. The
rights of producers of phonograms or video recordings shall be protected for
fifty years counting from year following the year of publication, or fifty
years counting from the year following the year of fixation of unpublished
phonograms or video recordings.
3. The
rights of broadcasting organizations shall be protected for fifty years
counting from the year following the year of the making of their broadcasts.
4. The
term of protection specified in Clauses 1, 2 and 3 of this Article shall expire
at 24:00 hrs of December 31 of the year of expiration of related right
protection term.
Article 35.- Acts of infringing upon related rights
1.
Appropriating the rights of performers, producers of phonograms and/or video
recordings and broadcasting organizations.
2.
Impersonating performers, producers of phonograms and video recordings and
broadcasting organizations.
3.
Publishing, producing and distributing fixed performances, phonograms, video
recordings and broadcasts without permission of performers, producers of
phonograms and video recordings and broadcasting organizations.
4.
Modifying, mutilating or distorting performances in whatever form prejudicial
to the honor and reputation of performers.
5. Copying
or reciting fixed performances, phonograms, video recordings and broadcasts
without permission of performers, producers of phonograms and video recordings
and broadcasting organizations.
6.
Disengaging or modifying right management information in electronic form
without permission of related right holders.
7.
Willingly canceling or deactivating technical solutions applied by related right
holders to protect their related rights
8.
Publishing, distributing or importing for public distribution performances,
copies of fixed performances or phonograms or video recordings when knowing or
having grounds to know that right management information in electronic form has
been disengaged or modified without permission of related right holders.
9.
Manufacturing, assembling, transforming, distributing, importing, exporting,
selling or leasing equipment when knowing or having grounds to know that such
equipment help illegally decode an encrypted program-carrying satellite signal.
10.
Willingly receiving or relaying an encrypted program-carrying satellite signal
when such signal has been encoded without permission of the legal distributor.
Chapter
III
COPYRIGHT
HOLDERS, RELATED RIGHT HOLDERS
Article 36.- Copyright holders
Copyright
holders mean organizations and individuals that hold one, several or all the
economic rights specified in Article 20 of this Law.
Article 37.- Copyright holders being authors
Authors
who use their own time, finance and material-technical foundations to create
works shall have the moral rights specified in Article 19 and the economic
rights specified in Article 20 of this Law.
Article 38.- Copyright holders being co-authors
1.
Co-authors who use their time, finance and
material-technical foundations to jointly create works shall share the rights
specified in Articles 19 and 20 of this Law to such works.
2. A
co-author defined in Clause 1 of this Article who has jointly created a work, a
separate part of which can be detached for independent use without any
prejudice to parts of other co-authors, shall have the rights specified in
Articles 19 and 20 of this Law to such separate part.
Article 39.- Copyright holders being organizations and individuals
that have assigned tasks to authors or entered into contracts with authors
1.
Organizations which have assigned tasks of creating works to authors who belong
to them shall be holders of the rights specified in Article 20 and Clause 3,
Article 19 of this Law, unless otherwise agreed.
2.
Organizations and individuals that have entered into contracts with authors for
creation of works shall be holders of the rights specified in Article 20 and
Clause 3, Article 19 of this Law, unless otherwise agreed.
Article 40.- Copyright holders being heirs
Organizations
and individuals that inherit the copyright according to the provisions of law
on inheritance shall be holders of the rights specified in Article 20 and
Clause 3, Article 19 of this Law.
Article 41.- Copyright holders being right assignees
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 shall be
copyright holders.
Article 42.- Copyright holders being the State
1. The
State shall be the holder of copyright to the following works:
a/
Anonymous works;
b/
Works, of which terms of protection have not expired but their copyright
holders die in default of heirs, heirs renounce succession or are deprived of
the right to succession.
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 the State ownership.
Article 43.- Works belonging to the public
1. Works, of which terms of protection have expired according to the
provisions of Article 27 of this Law shall belong to the public.
2. All
organizations and individuals shall be entitled to use works defined in Clause
1 of this Article but must respect the moral rights of the authors specified in
Article 19 of this Law.
3. The
Government shall specify the use of works belonging to the public.
Article 44.- Related right holders
1.
Organizations and individuals that use their time and invest their finance and
material-technical foundations in making performances shall be owners of such
performances, unless otherwise agreed with the concerned parties.
2.
Organizations and individuals that use their time and invest their finance and
material-technical foundations in producing phonograms and/or video recordings
shall be owners of such phonograms and/or video recordings, unless otherwise
agreed with the concerned parties.
3.
Broadcasting organizations shall be owners of their broadcasts, unless
otherwise agreed with concerned parties.
Chapter IV
TRANSFER
OF COPYRIGHT AND RELATED RIGHTS
Section 1.
ASSIGNMENT OF COPYRIGHT AND RELATED RIGHTS
Article 45.- General provisions on assignment of copyright and related
rights
1. The
assignment of copyright and related rights means the transfer by copyright
holders or related right holders of the ownership of the rights specified in
Clause 3, Article 19; Article 20; Clause 3, Article 29; Articles 30 and 31 of
this Law to other organizations and individuals under contracts or according to
the relevant provisions of law.
2. Authors
must not assign the moral rights specified in Article 19, except the right of
publication; performers must not assign the moral rights specified in Clause 2,
Article 29 of this Law.
3. Where a
work, performance, phonogram, video recording or broadcast is under joint
ownership, the assignment thereof must be agreed upon by all co-owners. In case
of joint ownership but a work, performance, phonogram, video recording or
broadcast is composed of separate parts which can be detached for independent
use, copyright holders or related right holders may assign their copyright or
related rights to their separate parts to other organizations or individuals.
Article 46.- Copyright or related right assignment contracts
1. A
copyright or related right assignment contract must be established in writing
and include the following principal contents:
a/
Names and addresses of the assignor and the assignee;
b/
Assignment bases;
c/
Payment price and mode;
d/
Rights and obligations of the involved parties;
e/
Liability for contract breaches.
2. The
performance, amendment, termination or cancellation of copyright or related
right assignment contracts shall comply with the provisions of the Civil Code.
Section 2.
LICENSING OF COPYRIGHT AND RELATED RIGHTS
Article 47.- General provisions on licensing of copyright and related
rights
1.
Licensing of copyright and related rights means the permission by copyright
holders or related right holders for other organizations and individuals to use
for a definite term one, several or all the rights specified in Clause 3,
Article 19; Article 20; Clause 3, Article 29; Articles 30 and 31 of this Law.
2. Authors
must not license the moral rights specified in Article 19, except the right of
publication; performers must not license the moral rights specified in Clause
2, Article 19 of this Law.
3. Where a
work, performance, phonogram, video recording or broadcast is under joint
ownership, the licensing of copyright or related rights must be agreed upon by
all co-owners. In case of joint ownership but a work, performance, phonogram,
video recording or broadcast is composed of separate parts which can be
detached for independent use, copyright holders or related right holders may
license their copyright or related rights to their separate parts to other
organizations or individuals.
4.
Organizations and individuals that are licensed copyright or related rights may
license other organizations and individuals when obtaining the permission of
copyright holders or related right holders.
Article 48.- Copyright or related right license contracts
1. A
copyright or related right license contract must be established in writing and
include the following principal contents:
a/ Full
names and addresses of the licensor and the licensee;
b/
Licensing bases;
c/
Licensing scope;
d/
Payment price and mode;
e/
Rights and obligations of the involved parties;
f/
Liability for contract breaches.
2. The
performance, amendment, termination or cancellation of copyright or related
right license contracts shall comply with the provisions of the Civil Code.
Chapter V
CERTIFICATES
OF REGISTERED COPYRIGHT OR RELATED RIGHTS
Article 49.- Registration of copyright or related rights
1. The
registration of copyright and related rights means the filing of applications
and enclosed dossiers (hereinafter referred to collectively as applications) by
authors, copyright holders or related right holders with the competent state
agencies for recording of information on authors, works, copyright holders and
related right holders.
2. The
filing of applications for grant of certificates of registered copyright or
certificates of registered related rights is not a compulsory formality for
enjoyment of copyright or related rights according to the provisions of this
Law.
3.
Organizations and individuals that are granted certificates of registered
copyright or certificates of registered related rights shall not have to bear
the burden of proof of such copyright and related rights upon disputes, unless
rebutting proofs are adduced.
Article 50.- Applications for registration of copyright or related
rights
1.
Authors, copyright holders or related right holders may directly file or
authorize other organizations or individuals to file applications for
registration of copyright or related rights.
2. An
application for registration of copyright or related rights comprises:
a/ A
written declaration for registration of copyright or related rights.
A written
declaration must be made in Vietnamese and signed by the author, copyright
holder, related rights holder or person authorized to file the application,
fully stating the information on the applicant, author, copyright holder or
related rights holder; summarized content of the work, performance, phonogram,
video recording or broadcast; the name of the author, the title of the work
used to make derivative work in cases where the to be-registered work is a
derivative work; the date, place and form of publication; the guaranteed
responsibility for information stated in the application.
The
Culture and Information Ministry shall set the form of written declarations for
copyright or related right registration;
b/ Two
copies of the work subject to application for copyright registration, or two
copies of the fixed object subject to the related right registration;
c/ A
letter of authorization where the applicant is the authorized person;
d/
Documents proving the right to file application where the applicant acquires
such right due to inheritance, succession from or assignment by another person;
e/
Written consent of co-authors, for works under joint authorship;
f/
Written consent of co-owners if the copyright or related rights are under
joint-ownership.
3. The
documents specified at Point c, d, e and f, Clause 2 of this Article must be
made in Vietnamese. Documents in foreign languages must be translated into
Vietnamese.
Article 51.- Competence to grant registered copyright certificates,
registered related rights certificates
1. The
state management agency in charge of copyright and related rights is competent
to grant registered copyright certificates and registered related rights
certificates.
2. The
state agency competent to grant registered copyright certificates and registered
related rights certificates can re-grant, renew or revoke such certificates.
3. The
Government specifies the conditions, order and procedures for re-grant, renewal and revocation of registered copyright
certificates and registered related rights certificates.
4. The
Culture and Information Ministry sets the forms of registered copyright
certificates and registered related rights certificates.
Article 52.- Time limit for granting registered copyright certificates
or registered related rights certificates
Within
fifteen working days after the receipt of a valid dossier, the state management
agency in charge of copyright and related rights shall have to grant a
registered copyright certificate or registered related rights certificate to
the applicant. In case of refusal to grant registered copyright certificates or
registered related rights certificates, the state management agency in charge
of copyright and related rights must notify such in writing to the applicants.
Article 53.- Validity of registered copyright certificates and
registered related rights certificates
1.
Registered copyright certificates and registered related rights certificates
shall be valid throughout the Vietnamese territory.
2.
Registered copyright certificates and registered related rights certificates,
which have been granted by the state management agency in charge of copyright
and related rights before the effective date of this Law shall continue to be
valid.
Article 54.- Recording and publication of registered copyright or registered
related rights
1.
Registered copyright certificates and registered related rights certificates
shall be recorded in the national register of copyright and related rights.
2. Decisions on grant, re-grant, renewal or
revocation of registered copyright certificates and registered related rights
certificates shall be published in the Official Gazette on copyright and
related rights.
Article 55.- Re-grant, renewal and revocation of registered copyright
certificates and registered related rights certificates
1. Where a
registered copyright certificate or registered related rights certificate is
lost or damaged, or where the copyright holder or related rights holder is
changed, the competent agency defined in Clause 2, Article 51 of this Law shall
re-grant or renew such registered copyright certificate or registered related
rights certificate.
2. Where a registered copyright certificate or registered related
rights certificate grantee is not the author, copyright holder or related right
holder, or where the registered work, phonogram, video recording or broadcast
is ineligible for protection, the competent state agency defined in Clause 2,
Article 51 of this Law shall revoke such registered copyright certificate or
registered related rights certificate.
3. Organizations and individuals that detect that the grant of
registered copyright certificates and/or registered related rights certificates
is contrary to the provisions of this Law are entitled to request the state
management agency in charge of copyright and related rights to revoke such
registered copyright certificates and registered related rights certificates.
Chapter VI
COPYRIGHT
AND RELATED RIGHTS REPRESENTATION, CONSULTANCY AND SERVICE ORGANIZATIONS
Article 56.- Organizations acting as collective representatives of
copyright and related rights
1.
Organizations acting as collective representatives of copyright and/or related
rights are not-for-profit organizations established under agreements among
authors, copyright holders and/or related right holders and operating according
to the provisions of law for protection of copyright and related rights.
2. Organizations acting as collective represen-tatives of copyright
and/or related rights shall conduct the following activities under
authorization by authors, copyright holders and/or related right holders:
a/
Performing the management of copyright and/or related rights; conducting
negotiations for licensing, collection and division of royalties, remunerations
and other material benefits from the exercise of authorized rights;
b/
Protecting legitimate rights and interests of their members; organizing
conciliations upon occurrence of disputes.
3.
Organizations acting as collective representatives of copyright and/or related
rights shall have the following rights and duties:
a/ To
conduct creation-promoting activities and other social activities;
b/ To
cooperate with their counterparts in international and national organizations
on the protection of copyright and related rights;
c/ To
make regular and irregular reports on collective representation activities to
competent state agencies;
d/
Other rights and duties according to the provisions of law.
Article 57.- Copyright and related right consultancy and service
organizations
1.
Copyright and related right consultancy and service organizations are
established and operate according to the provisions of law.
2.
Copyright and related right consultancy and service organizations shall conduct
the following activities at the request of authors, copyright holders, related right holders:
a/
Providing consultancy on issues related to the provisions of law on copyright
and/or related rights;
b/
Carrying out, on the behalf of copyright holders or related right holders, the
procedures for filing applications for registration of copyright or related
rights under authorization;
c/
Joining other legal relations on copyright, related rights, protection of
legitimate rights and interests of authors, copyright holders and related right
holders under authorization.
Part Three
INDUSTRIAL
PROPERTY RIGHTS
Chapter
VII
CONDITIONS
FOR PROTECTION OF INDUSTRIAL PROPERTY RIGHTS
Section 1.
PROTECTION CONDITIONS FOR INVENTIONS
Article 58.- General conditions for inventions eligible for protection
1. An
invention shall be protected by mode of grant of invention patent when it
satisfies the following conditions:
a/
Being novel;
b/
Involving an inventive step;
c/
Being susceptible of industrial application.
2. Unless
it is a common knowledge, an invention shall be protected by mode of grant of utility
solution patent when it satisfies the following conditions:
a/
Being novel;
b/
Being susceptible of industrial application.
Article 59.- Subject matters not protected as inventions
The
following subject matters shall not be protected as inventions:
1.
Scientific discoveries or theories, mathematical methods;
2.
Schemes, plans, rules and methods for performing mental acts, training domestic
animals, playing games, doing business; computer programs;
3.
Presentations of information;
4.
Solutions of aesthetical characteristics only;
5. Plant
varieties, animal breeds;
6.
Processes of plant or animal production which are principally of biological
nature other than microbiological ones;
7. Human
and animal disease prevention, diagnostic and treatment methods.
Article 60.- Novelty of inventions
1. An
invention shall be considered novel if it has not yet been publicly disclosed
through use or by means of a written description or any other form, inside or
outside the country, before the filing date or the priority date, as
applicable, of the invention registration application.
2. An
invention shall be considered having not yet been publicly disclosed if it is
known to only a limited number of persons who are obliged to keep it secret.
3. An
invention shall not be considered having lost its novelty if it is published in
the following cases, provided that the invention registration application is
filed within 6 months from the date of publication:
a/ It
is published by another person without permission of the person having the
right to register it defined in Article 86 of this Law;
b/ It
is published in the form of a scientific presentation by the person having the
right to register it defined in Article 86 of this Law;
c/ It
is displayed at a national exhibition of
Article 61.- Inventive step of inventions
An
invention shall be considered involving an inventive step if, based on
technical solutions already publicly disclosed through use or by means of a
written description or any other form, inside or outside the country, prior to
the filing date or the priority date, as applicable, of the invention
registration application, it constitutes an inventive progress and cannot be
easily created by a person with average knowledge in the art.
Article 62.- Susceptibility of industrial application of inventions
An
invention shall be considered susceptible of industrial application if it is
possible to realize mass manufacture or production of products or repeated
application of the process that is the subject mater of the invention, and to
achieve stable results.
Section 2.
PROTECTION CONDITIONS FOR INDUSTRIAL DESIGNS
Article 63.- General conditions for industrial designs eligible for
protection
An
industrial design shall be protected when it satisfies the following
conditions:
1. Being
new;
2. Being creative;
3. Being susceptible of industrial application.
Article 64.- Subject matters not protected as industrial designs
The
following subject matters shall not be protected as industrial designs:
1.
Appearance of a product, which is dictated by the technical features of the
product;
2.
Appearance of a civil or an industrial construction work;
3. Shape
of a product, which is invisible during the use of the product.
Article 65.- Novelty of industrial designs
1. An
industrial design shall be considered new if it significantly differs from
other industrial designs that are already publicly disclosed through use or by
means of written descriptions or in any other form, inside or outside the
country, prior to the filing date or the priority date, as applicable, of the
industrial design registration application.
2. Two
industrial designs shall not be considered significantly different from each
other if they are only different in appearance features which are not easily
noticeable and memorable and which cannot be used to distinguish these
industrial designs as whole.
3. An
industrial design shall be considered having not yet been publicly disclosed if
it is known to only a limited number of persons who are obliged to keep it
secret.
4. An
industrial design shall not be considered having lost its novelty if it is
published in the following cases, provided that the industrial design
registration application is filed within 6 months from the date of publication:
a/ It
is published by another person without permission of the person having the
right to register it defined in Article 86 of this Law;
b/ It
is published in the form of a scientific presentation by the person having the
right to register it defined in Article 86 of this Law;
c/ It
is displayed at a national exhibition of
Article 66.- Creativity of industrial designs
An
industrial design shall be considered creative if, based on industrial designs
already publicly disclosed through use or by means of written descriptions or
in any other form, inside or outside the country, before the filing date or the
priority date, as applicable, of the industrial design registration
application, it cannot be easily created by a person with average knowledge in
the art.
Article 67.- Susceptibility of industrial application of industrial
designs
An
industrial design shall be considered susceptible of industrial application if
it can be used as a model for mass manufacture of products with appearance
embodying such industrial design by industrial or handicraft methods.
Section 3.
PROTECTION CONDITIONS FOR LAYOUT-DESIGNS
Article 68.- General conditions for layout-designs eligible for
protection
A
layout-design shall be protected when it satisfies the following conditions:
1. Being original;
2. Being
commercially novel.
Article 69.- Subject matters not protected as layout-designs
The
following subject matters shall not be protected as layout-designs:
1.
Principles, processes, systems or methods operated by semiconductor integrated
circuits;
2.
Information or software contained in semiconductor integrated circuits.
Article 70.- Originality of layout-designs
1. A
layout-design shall be considered original if it satisfies the following
conditions:
a/ Being
result of its author’s creative labor;
b/
Having not been widely known among creators of layout-designs or manufacturers
of semiconductor integrated circuits at the time of its creation.
2. A
layout-design that is a combination of elements and common interconnections
shall be considered to be original only if such combination, taken as a whole,
is original according to the provisions of Clause 1 of this Article.
Article 71.- Commercial novelty of layout-designs
1. A
layout-design shall be considered commercially novel if it has not yet been
commercially exploited anywhere in the world prior to the filing date of the
registration application.
2. A
layout-design shall not be considered having lost its commercial novelty if the
layout-design registration application is filed within 2 years from the date it
was commercially exploited for the first time anywhere in the world by the
person who has the right to register it defined in Article 86 of this Law or
his/her licensee.
3.
Commercial exploitation of a layout-design mentioned in Clause 2 of this
Article means any act of public distribution for commercial purposes of a
semiconductor integrated circuit produced by incorporation of such
layout-design, or a commodity containing such semiconductor integrated circuit.
Section 4.
PROTECTION CONDITIONS FOR MARKS
Article 72.- General conditions for marks eligible for protection
A mark
shall be protected when it satisfies the following conditions:
1. Being a
visible sign in the form of letters, words, drawings or images, including
holograms, or a combination thereof, represented in one or more colors;
2. Being capable of distinguishing goods or services of the
mark owner from those of other subjects.
Article 73.- Signs not protected as marks
The
following signs shall not be protected as marks:
1. Signs
identical with or confusingly similar to national flags or national emblems;
2. Signs
identical with or confusingly similar to emblems, flags, armorial bearings,
abbreviated names or full names of Vietnamese state agencies, political
organizations, socio-political organizations, socio-political-professional
organizations, social organizations or socio-professional organizations or
international organizations, unless permitted by such agencies or
organizations;
3. Signs
identical with or confusingly similar to real names, alias, pseudonyms or
images of leaders, national heroes or famous personalities of
4. Signs
identical with or confusingly similar to certification seals, check seals or
warranty seals of international organizations which require that their signs
must not be used, unless such seals are registered as certification marks by
those organizations;
5. Signs
which cause misleading or confusion or deceive consumers as to the origin, properties,
intended utilities, quality, value or other characteristics of goods or
services.
Article 74.- Distinctiveness of marks
1. A mark
shall be considered distinctive if it consists of one or several easily
noticeable and memorable elements, or of many elements forming an easily
noticeable and memorable combination, and does not fall into the cases
specified in Clause 2 of this Article.
2. A mark
shall be considered as indistinctive if it is a sign or signs falling into one
of the following cases:
a/ Simple
shapes and geometric figures, numerals, letters or scripts of uncommon
languages, except where such signs have been widely used and recognized as a
mark;
b/
Conventional signs or symbols, pictures or common names in any language of
goods or services that have been widely and regularly used and known to many
people;
c/ Signs
indicating time, place and method of production, category, quantity, quality,
properties, ingredients, intended utility, value or other characteristics,
which is descriptive of goods or services, except where such signs have
acquired distinctiveness through use before the filing of mark registration
applications;
d/
Signs describing the legal status and business field of business entities;
e/ Signs
indicating the geographical origin of goods or services, except where such
signs have been widely used and recognized as a mark or registered as
collective marks or certification marks as provided for in this Law;
f/ Signs
other than integrated marks which are identical with or confusingly similar to
registered marks of identical or similar goods or services on the basis of
registration applications with earlier filing dates or priority dates, as
applicable, including mark registration applications filed under treaties to
which the Socialist Republic of Vietnam is a contracting party;
g/
Signs identical with or confusingly similar to another person’s mark which has
been widely used and recognized for similar or identical goods or services
before the filing date or the priority date, as applicable;
h/ Signs
identical with or confusingly similar to another person’s mark which has been
registered for identical or similar goods or services, the registration
certificate of which has been invalidated for no more than 5 years, except
where the ground for such invalidation is non-use of the mark according to
Point d, Clause 1, Article 95 of this Law;
i/ Signs
identical with or confusingly similar to another person’s mark recognized as a
well-known mark which has been registered for goods or services which are
identical with or similar to those bearing such well-known mark, or for
dissimilar goods or services if the use of such mark may affect the
distinctiveness of the well-known mark or the mark registration is aimed at
taking advantage of the reputation of the well-known mark;
j/ Signs
identical with or similar to another person’s trade name currently in use if
the use of such signs may cause confusion to consumers as to the origin of
goods or services;
k/
Signs identical with or similar to a geographical indication being protected if
the use of such signs may mislead consumers as to the geographical origin of
goods;
l/ Signs
identical with, containing or being translated or transcribed from geographical
indications being protected for wines or spirits if such signs have been
registered for use with respect to wines and spirits not originating from the
geographical areas bearing such geographical indications;
m/
Signs identical with or insignificantly different from another person’s
industrial design which has been protected on the basis of an industrial design
registration application with the filing date or priority date earlier than
that of the mark registration application.
Article 75.- Criteria for evaluation of well-known marks
The
following criteria shall be taken into account when a mark is considered
well-known:
1. The
number of involved consumers who have been aware of the mark through purchase
or use of goods or services bearing the mark or through advertising;
2.
Territorial area in which goods or services bearing the mark are circulated;
3.
Turnover of the sale of goods or provision of services bearing the mark or the
quantity of goods sold or services provided;
4.
Duration of continuous use of the mark;
5. Wide
reputation of goods or services bearing the mark;
6. Number
of countries protecting the mark;
7. Number
of countries recognizing the mark as a well-known mark;
8.
Assignment price, licensing price, or investment capital contribution value of
the mark.
Section 5.
PROTECTION CONDITIONS FOR TRADE NAMES
Article 76.- General conditions for trade names eligible for
protection
A trade
name shall be protected when it is capable of distinguishing the business
entity bearing it from other business entities operating in the same business field
and locality.
Article 77.- Subject matters not protected as trade names
Names of
state agencies, political organizations, socio-political organizations,
socio-political-professional organizations, social organizations,
socio-professional organizations or other entities that are not involved in
business activities shall not be protected as trade names.
Article 78.- Distinctiveness of trade names
A trade
name shall be considered distinctive when it satisfies the following
conditions:
1.
Consisting of a proper name, except where it has been widely known through use;
2. Being not identical with or confusingly similar to a trade
name having been used earlier by another person in the same business field and
locality;
3. Being not
identical with or confusingly similar to another person’s mark or a
geographical indication having been protected before the date it is used.
Section 6.
PROTECTION CONDITIONS FOR GEOGRAPHICAL INDICATIONS
Article 79.- General conditions for geographical indications eligible
for protection
A
geographical indication shall be protected when it satisfies the following
conditions:
1. The
product bearing the geographical indication originates from the area, locality,
territory or country corresponding to such geographical indication;
2. The product
bearing the geographical indication has a reputation, quality or
characteristics mainly attributable to geographical conditions of the area,
locality, territory or country corresponding to such geographical indication.
Article 80.- Subject matters not protected as geographical indications
The
following subject matters shall not be protected as geographical indications:
1. Names
or indications which have become generic names of goods in
2.
Geographical indications of foreign countries where they are not or no longer
protected or no longer used;
3.
Geographical indications identical with or similar to a protected mark, where
the use of such geographical indications is likely to cause a
confusion as to the origin of products;
4.
Geographical indications which mislead consumers as to the true geographical
origin of products bearing such geographical indications.
Article 81.- Reputation, quality and characteristics of products
bearing geographical indications
1.
Reputation of products bearing a geographical indication shall be determined on
the basis of consumers’ trust in such products through the extent of their
being widely known to and selected by consumers.
2. Quality
and characteristics of products bearing a geographical indication shall be
defined by one or several qualitative, quantitative or physically, chemically,
microbiologically perceptible criteria which can be tested by technical means
or experts with appropriate testing methods.
Article 82.- Geographical conditions relevant to geographical
indications
1.
Geographical conditions relevant to a geographical indication mean natural and
human factors decisive to reputation, quality and characteristics of products
bearing such geographical indication.
2. Natural
factors include climatic, hydrological, geological, topographical and
ecological factors and other natural conditions.
3. Human
factors include skills and expertise of producers, and traditional production
processes of localities.
Article 83.- Geographical areas bearing geographical indications
Geographical
areas bearing geographical indications shall have their boundaries accurately
determined in words and maps.
Section 7.
PROTECTION CONDITIONS FOR BUSINESS SECRETS
Article 84.- General conditions for business secrets eligible for
protection
A business
secret shall be protected when it satisfies the following conditions:
1. Being neither common knowledge nor easily obtained;
2. Being capable, when being used in business activities, of
rendering advantages to its holder over those who do not hold or use it;
3. Being
kept secret by its owner with necessary measures so that it shall neither be
disclosed nor easily accessible.
Article 85.- Subject matters not protected as business secrets
The
following confidential information shall not be protected as business secrets:
1.
Personal identification secrets;
2. State
management secrets;
3.
National defense and security secrets;
4. Other
confidential information irrelevant to business.
Chapter
VIII
ESTABLISHMENT
OF INDUSTRIAL PROPERTY RIGHTS TO INVENTIONS, INDUSTRIAL DESIGNS,
LAYOUT-DESIGNS, MARKS AND GEOGRAPHICAL INDICATIONS
Section 1.
REGISTRATION OF INVENTIONS, INDUSTRIAL DESIGNS, LAYOUT-DESIGNS, MARKS AND
GEOGRAPHICAL INDICATIONS
Article 86.- The right to register inventions, industrial designs and
layout-designs
1. The
following organizations and individuals shall have the right to register
inventions, industrial designs and layout-designs:
a/
Authors who have created inventions, industrial designs or layout-designs with
their own efforts and expenses;
b/
Organizations or individuals who have supplied funds and material facilities to
authors in the form of job assignment or hiring unless otherwise agreed by the
involved parties whose agreements are not contrary to the provisions of Clause
2 of this Article.
2. The
Government shall provide for the right to register inventions, industrial
designs and layout-designs created by using material and technical facilities
and funds from the state budget.
3. Where
more than one organizations or individuals have jointly created or invested in
the creation of an invention, industrial design or layout-design, these
organizations or individuals shall all have the registration right, which shall
only be exercised with their consensus.
4. A
person who has the registration right as provided in this Article may assign
that right to other organizations or individuals in the form of a written
contract, bequeathal or inheritance in according to the provisions of law, even
where a registration application has been filed.
Article 87.- Right to register marks
1.
Organizations or individuals shall have the right to register marks to be used
for goods they produce or services they provide.
2.
Organizations or individuals lawfully trading in products produced by others
shall have the right to register marks for such products, provided that the
producers neither use such marks for their products nor object to such
registration.
3.
Collective organizations lawfully established shall have the right to register
collective marks to be used by their members under the regulations on use of
collective marks. For signs indicating geographical origins of goods or
services, organizations having the right to register them shall be collective
organizations of organizations or individuals engaged in production or trading
in relevant localities.
4.
Organizations with the function of controlling and certifying quality,
properties, origin or other relevant criteria of goods or services shall have
the right to register certification marks, provided that they are not engaged
in production or trading of such goods or services.
5. Two or
more organizations or individuals shall have the right to jointly register a
mark in order to become its co-owners on the following conditions:
a/ Such
mark is used in the names of all co-owners or used for goods or services which
are produced or dealt in with the participation of all co-owners;
b/ The
use of such 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 according to law, provided that the
assigned organizations or individuals satisfy the respective 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, then
such representative or agent shall not be permitted to register such mark
unless it is so agreed by the mark owner, except where a justifiable reason is
available.
Article 88.- Right to register geographical indications
The right
to register Vietnamese geographical indications belongs to the State.
The State
allows organizations and individuals producing products bearing geographical
indications, collective organizations representing such organizations or
individuals or administrative management agencies of localities to which such
geographical indications pertain to exercise the right to register such
geographical indications. Persons who exercise the right to register
geographical indications shall not become owners of such geographical
indications.
Article 89.- Modes of filing registration applications for
establishment of industrial property rights
1.
Vietnamese organizations and individuals, foreign individuals permanently
residing in
2. Foreign
individuals not permanently residing in
Article 90.- The first-to-file principle
1. Where
two or more applications are filed by many different parties for registration
of the same invention, or for registration of industrial designs identical with
or insignificantly different from each other, or for registration of marks
identical with or confusingly similar to each other, for identical or similar
goods or services, the protection title may only be granted to the valid
application with the earliest priority or filing date among applications that
satisfy all the conditions for the grant of protection titles.
2. Where
there are two or more applications satisfying all the conditions for the grant
of protection titles and having the same earliest priority or filing date, the
protection title may only be granted to a single application out of these
applications under an agreement by all applicants. Without such an agreement,
all these applications shall be refused for the grant of a protection
title.
Article 91.- Principle of priority
1. An
applicant for registration of an invention, an industrial design or a mark may
claim priority on the basis of the first application for registration of
protection of the same subject matter if the following conditions are fully
satisfied:
a/ The
first application has been filed in Vietnam or in a country being a contracting
party to a treaty containing provisions on priority right to which the
Socialist Republic of Vietnam is also a contracting party, or in a country having agreed with
Vietnam to apply such provisions;
b/ The
applicant is a citizen of
c/ The
claim for the priority right is clearly stated in the application and a copy of
the first application certified by the receiving office is enclosed;
d/ The
application is filed within the time limit provided for in a treaty to which
2. In an
invention, industrial design or mark registration application, the applicant
may claim the priority right on the basis of different earlier filed applications,
provided that the corresponding contents of such earlier applications and the
application are indicated.
3. An
industrial property registration application enjoying priority right shall bear
the priority date being the filing date of the first application.
Article 92.- Protection titles
1.
Protection titles shall recognize owners of inventions, industrial designs,
layout-designs or marks (hereinafter referred to as protection title owners);
authors of inventions, industrial designs or layout-designs; subject matters,
scope and term of protection.
2.
Protection titles of geographical indications shall record organizations
managing such geographical indications, organizations or individuals having the
right to use such geographical indications, protected geographical indications,
particular characteristics of products bearing such geographical indications,
particular characteristics of geographical conditions and geographical areas
bearing such geographical indications.
3.
Protections titles include invention patent, utility solution patent, industrial design patent, certificate of registered
semiconductor integrated circuit layout-design, certificate of registered mark
and certificate of registered geographical indication.
Article 93.- Validity of protection titles
1.
Protection titles shall be valid throughout the Vietnamese territory.
2.
Invention patents shall each have a validity starting from the grant date and
expiring at the end of 20 years after the filing date.
3. Utility
solution patents shall have a validity starting from the grant date and
expiring at the end of 10 years after the filing date.
4.
Industrial design patents shall have a validity starting from the grant date
and expiring at the end of 5 years after the filing date and may be renewed for
two consecutive terms, each of 5 years.
5.
Certificates of registered semiconductor integrated circuit layout-designs
shall each have a validity starting from the grant date and expiring at the
earliest date among the following:
a/ The
end of 10 years after the filing date;
b/ The
end of 10 years after the date the layout-designs were first commercially
exploited anywhere in the world by persons having the registration right or
their licensees;
c/ The
end of 15 years after the date of creation of the layout-designs.
6.
Certificates of registered marks shall have a validity starting from the grant
date and expiring at the end of 10 years after the filing date and may be
renewed for many consecutive terms, each of 10 years.
7.
Certificates of registered geographical indications shall have an indefinite
validity starting from the grant date.
Article 94.- Maintenance and prolongation of validity of protection
titles
1. In
order to maintain the validity of an invention patent or a utility solution
patent, its owner shall have to pay validity maintenance fee.
2. In
order to have the validity of an industrial design patent or a certificate of
registered mark prolonged, its owner shall have to pay validity prolongation
fee.
3. Fee
rates and procedures for maintaining or prolonging validity of protection
titles shall be provided for by the Government.
Article 95.- Termination of validity of protection titles
1. The
validity of a protection title shall be terminated in the following cases:
a/ Its
owner fails to pay the validity maintenance or prolongation fee as prescribed;
b/ Its
owner declares to relinquish the industrial property rights;
c/ Its
owner no longer exists or the owner of a certificate of registered mark is no
longer engaged in business activities without any lawful heir;
d/ The
mark has not been used by its owner or his/her licensee without justifiable
reasons for 5 consecutive years prior to a request for termination of validity,
except where the use is commenced or resumed at least 3 months before the
request for termination;
e/ The
owner of a certificate of registered collective mark fails to supervise or
ineffectively supervises the implementation of the regulation on use of
collective marks;
f/ The
owner of a certificate of registered certification mark violates the regulation
on use of certification marks or fails to supervise or ineffectively supervises
the implementation of such regulation;
g/ The
geographical conditions decisive to reputation, quality or special
characteristics of products bearing a
geographical indication have changed resulting in the loss of such reputation, quality or characteristics of
products.
2. Where
the owner of an invention protection title fails to pay the validity
maintenance fee before the set time limit, the validity of such protection
title shall, upon the expiration of such time limit, automatically terminate as
from the first day of the first valid year for which the validity maintenance
fee has not been paid. The state management agency in charge of industrial
property rights shall record such termination in the National Register of
Industrial Property and publish it in the Official Gazette of Industrial
Property.
3. Where
the owner of a protection title declares to relinquish industrial property
rights provided for at Point b, Clause 1 of this Article, the state management
agency in charge of industrial property rights shall decide to terminate the
validity of such protection title from the date of receipt of the owner’s
declaration;
4.
Organizations and individuals shall have the right to request the state
management agency in charge of industrial property rights to terminate the
validity of protection titles in cases specified at Points c, d, e, f and g,
Clause 1 of this Article, provided that they have paid fees and charges.
Based on
the result of the examination of requests for termination of validity of
protection titles and involved parties’ opinions, the state management agency
in charge of industrial property rights shall issue decisions on termination of
validity of protection titles or notify the refusal to terminate the validity
of protection titles.
5. The
provisions of Clauses 1, 3 and 4 of this Article shall also apply to the
termination of validity of international registrations of marks.
Article 96.- Invalidation of protection titles
1. A
protection title shall be entirely invalidated in the following cases:
a/ The
registration applicant has neither had nor been assigned the right to register
an invention, industrial design, layout-design or mark;
b/ The
subject matter of industrial property fails to satisfy the protection
conditions at the time the protection title is granted.
2. A
protection title shall be partly invalidated when that part fails to satisfy
the protection conditions.
3. Organizations
and individuals may request the state management agency in charge of industrial
property rights to invalidate protection titles in the cases specified in
Clauses 1 and 2 of this Article, provided that they pay fees and charges.
The
statute of limitations for exercising the right to request invalidation of a
protection title shall be its whole term of protection. For marks, such statute
of limitations shall be 5 years from the grant date, except where the
protection title has been granted due to the applicant’s dishonesty.
4. Based
on the result of the examination of request for invalidation of a protection
title and involved parties’ opinions, the state management agency in charge of
industrial property rights shall issue a decision on entire or partial
invalidation of the protection title or notify the refusal to invalidate it.
5. The
provisions of Clauses 1, 2, 3 and 4 of this Article shall also apply to the
invalidation of international registrations of marks.
Article 97.- Amendments to protection titles
1. The
owner of a protection title may request the state management agency in charge
of industrial property rights to make amendments to the following information
in such protection title, provided that the prescribed fees and charge are
paid:
a/
Modifications, error corrections in relation to the name and address of the
author or the protection title owner;
b/
Amendments to the description of particular characteristics, quality or
geographical area bearing a geographical indication; amendments to the
regulation on use of collective marks or the regulation on use of a
certification mark.
2. At the
request of the owner of a protection title, the state management agency in
charge of industrial property rights shall have to correct errors caused at its
fault in such protection title. In this case, the protection title owner is not
liable to pay fees and charges.
3. The
owner of a protection title may request the state management agency in charge
of industrial property rights to narrow the scope of industrial property
rights. In this case, the corresponding industrial property registration
application shall be substantively re-examined and the requester shall pay the
fee for substantive examination.
Article 98.- National register of industrial property
1. The
national register of industrial property is a document recording the
establishment, change and transfer of industrial property rights to inventions,
industrial designs, layout-designs, marks and geographical indications under
this Law.
2. Decisions
on grant of protection titles, principal contents of protection titles and
decisions on amendment, termination of validity or invalidation of protection
titles, decisions on registration of industrial property right transfer
contracts shall all be recorded in the national register of industrial
property.
3. The
national register of industrial property shall be compiled and kept by the
state management agency in charge of industrial property rights.
Article 99.- Publication of decisions relating to protection
titles
Decisions
on grant, termination of validity, invalidation or amendment of protection
titles for industrial property rights shall be published by the state
management agency in charge of industrial property rights in the Official
Gazette of Industrial Property within 60 days as from the date of issuance.
Section 2.
INDUSTRIAL PROPERTY REGISTRATION APPLICATIONS
Article
100.- General requirements on industrial property
registration applications
1. An
industrial property registration application comprises the following documents:
a/ A declaration for registration, made
according to a set form;
b/
Documents, samples and information identifying the industrial property subject
matter registered for protection as specified in Articles 102 thru 106 of this
Law;
c/
Power of attorney, if the application is filed through a representative;
d/
Documents evidencing the registration right, if such right is acquired by the
applicant from another person;
e/
Documents evidencing the priority right, if such right is claimed;
f/
Vouchers of payment of fees and charges.
2.
Industrial property registration applications and papers for transaction
between the applicants and the state management agency in charge of industrial
property rights shall be made in Vietnamese, except for the following
documents, which can be made in another language but shall be translated into
Vietnamese at the request of the state management agency in charge of
industrial property rights:
a/
Power of attorney;
b/
Documents evidencing the registration right;
c/
Documents evidencing the priority right;
d/
Other documents supporting the applications.
3.
Documents evidencing the priority right in an industrial property registration
application include:
a/ A
copy of first application(s) certified by the receiving office;
b/ Deed
of assignment of priority right if such right is acquired from another person.
Article
101.- The requirement on the uniformity of industrial
property registration applications
1. Each
industrial property registration application shall request the grant of only
one protection title for a single industrial property subject matter, except
for the cases specified in Clauses 2, 3 and 4 of this Article.
2. Each
registration application may request the grant of one invention patent or one
utility solution patent for a group of inventions that are technically linked
to form a single common inventive idea.
3. Each
registration application may request the grant of one industrial design patent
for several industrial designs in the following cases:
a/
Industrial designs of a set of products consist of numerous items expressing a
single common inventive idea and used together or for a common purpose;
b/ An
industrial design is accompanied by one or more variants, i.e., variations of
such industrial design that express a single common inventive idea and that are
not significantly different from such industrial design.
4. Each
registration application may request the grant of one certificate of registered
mark for one mark to be used for one or more different goods or services.
Article
102.- Requirements on invention registration
applications
1.
Documents identifying an invention registered for protection in an invention
registration application shall include a description of the invention and an
abstract of the invention. The invention description consists of the
description section and the scope of protection of the invention.
2. The
description of invention must satisfy the following conditions:
a/
Fully and clearly disclosing the nature of the invention to the extent that
such invention may be realized by a person with average knowledge in the art;
b/
Briefly explaining the accompanied drawings, if it is required to further
clarify the nature of the invention;
c/
Clarifying the novelty, inventive step and susceptibility of industrial
application of the invention.
3. The
scope of protection of inventions shall be expressed in the form of a
combination of technical specifications which are necessary and sufficient to
identify the scope of the rights to such inventions, and compatible with the
description of inventions and drawings.
4.
Abstracts of inventions must disclose principal features of nature of such
inventions.
Article
103.- Requirements on industrial design registration
applications
1.
Documents identifying an industrial design registered for protection in an
industrial design registration application include a description and a set of
photos or drawings of such industrial design. The industrial design description
consists of a section of description and a scope of protection of such
industrial design.
2. The
section of description of an industrial design must satisfy the following
conditions:
a/ Fully
disclosing all features expressing the nature of the industrial design and
clearly identifying features which are new, different from the least different
known industrial design, and consistent with the set of photos or drawings;
b/
Where the industrial design registration application consists of variants, the
section of description must fully show these variants and clearly identify
distinctions between the principal variant and other variants;
c/
Where the industrial design stated in the registration application is that of a
set of products, the section of description must fully show features of each
product of the set.
3. The
scope of protection of industrial designs must clearly define features which
need to be protected,
including features which are new and different from similar known industrial
designs.
4. The set
of photos and drawings must fully define features of the industrial design.
Article
104.- Requirements on layout-design registration
applications
Documents,
samples and information identifying a layout-design registered for protection in a
layout-design registration application include:
1.
Drawings and photos of the layout-design;
2.
Information on functions and structure of semiconductor integrated circuits
produced under the layout-design;
3. Samples
of semiconductor integrated circuits produced under the layout-design, if such
layout-design has been commercially exploited.
Article
105.- Requirements on mark registration applications
1.
Documents, samples, information identifying a mark registered for protection in
a mark registration application include:
a/ A
sample of the mark and a list of goods or services bearing the mark;
b/
Regulation on use of collective marks or regulation on use of certification
marks.
2. The
sample of the mark must be described in order to clarify elements of the mark
and the comprehensive meaning of the mark, if any; where the mark consists of
words or phrases of hieroglyphic languages, such words or phrases must be
transcribed; where the mark consists of words or phrases in foreign languages,
such words or phrases must be translated into Vietnamese.
3. Goods
or services listed in a mark registration application must be classified into
appropriate groups in accordance with the Classification List under the Nice
Agreement on International Classification of Goods and Services for the purpose
of mark registration, and published by the state management agency in charge of
industrial property rights.
4. The
regulation on use of collective marks consists of the following principal
contents:
a/
Name, address, grounds of establishment and operations of the collective
organization being the owner of the mark;
b/
Criteria for becoming a member of the collective organization;
c/ List
of organizations and individuals permitted to use the mark;
d/
Conditions for use of the mark;
e/
Measures for handling acts violating the regulation on use of marks.
5. The
regulation on use of certification marks consists of the following principal
contents:
a/ The
organization or individual being the mark owner;
b/
Conditions for using the mark;
c/
Characteristics of goods or services certified by the mark;
d/
Methods of evaluating characteristics of goods or services and methods of
controlling the use of the mark;
e/
Expenses to be paid by the mark user for the certification and protection of
the mark, if any.
Article
106.- Requirements on geographical indication
registration applications
1.
Documents, samples and information identifying a geographical indication
registered for protection in a geographical indication registration application
include:
a/ The
name or sign being the geographical indication;
b/ The
product bearing the geographical indication;
c/ The
description of peculiar characteristics and quality, or reputation of the
product bearing the geographical indication and particular elements of natural
conditions decisive to the peculiar characteristics and quality, or reputation
of the product (hereinafter referred to as the description of peculiar
characteristics);
d/ The
map of the geographical area bearing the geographical indication;
e/
Documents evidencing that the geographical indication is under protection in
the country of origin in case of a foreign geographical origin;
2. The
description of peculiar characteristics must have the following principal
contents:
a/
Description of the relevant product, including raw materials, and physical,
chemical, microbiological and perceptible properties of the product;
b/
Method of identification of the geographical area bearing the geographical
indication;
c/
Evidence proving that the product originates from such geographical area, with
the respective meaning provided for in Article 79 of this Law;
d/
Description of local and stable methods of production and processing;
e/
Information on relationship between the peculiar characteristics and quality,
or reputation of the product and the geographical conditions as provided for
in Article 79 of this Law;
f/
Information on the mechanism of self-control of the peculiar characteristics or
quality of the product.
Article
107.- Authorized representation in industrial property
rights-related procedures
1. The
authorization for carrying out procedures related to the establishment,
maintenance, prolongation, amendment, termination and invalidation of
protection titles must be made in writing in the form of a power of attorney.
2. A power
of attorney must have the following principal contents:
a/ Full
name and address of the principal and the attorney;
b/
Scope of authorization;
c/
Valid term of authorization;
d/ Date
of making the power of attorney;
e/
Signature and seal (if any) of the principal.
3. A power
of attorney without any valid term shall be considered indefinitely valid and
shall have its validity terminated only when the principal so declares.
Section 3.
PROCEDURES FOR PROCESSING INDUSTRIAL PROPERTY REGISTRATION APPLICATIONS AND
GRANTING PROTECTION TITLES
Article
108.- Receipt of industrial property registration
applications, filing date
1. An
industrial property registration application shall only be received by the
concerned state management agency in charge of industrial property rights if it
consists of at least the following documents and information:
a/ A
declaration for registration of an invention, industrial design, layout-design,
mark or geographical indication, which includes sufficient information to
identify the applicant and a sample of mark, list of goods or services bearing
the mark for a mark registration application;
b/ A
description, including the scope of protection, for an invention registration
application; a set of photos and drawings and a description, for an industrial
design registration application; a description of peculiar characteristics of a
product bearing geographical indication, for a geographical indication
registration application;
c/
Voucher of payment of filing fee.
2. The
filing date shall be the date on which the application is received by the
concerned state management agency in charge of industrial property rights or
the international filing date in case of applications filed under international
treaties.
Article
109.- Formal examination of industrial property
registration applications
1.
Industrial property registration applications shall be subject to formal
examination for evaluating their validity.
2. An
industrial property registration application shall be considered invalid in the
following cases:
a/ It
does not fulfill the formal requirements;
b/ The
subject matter stated in the application is ineligible for protection;
c/ The
applicant does not have the registration right, including where the
registration right belongs to more than one organizations or individuals but
one or several of them do not agree with the filing;
d/ It
is filed in contravention of regulations on the filing mode provided for in
Article 89 of this Law;
e/ The
applicant fails to pay fees and charges.
3. For industrial
property registration applications falling into the cases specified in Clause 2
of this Article, the state management agency in charge of industrial property
rights shall carry out the following procedures:
a/ Issuing
a notice of intended refusal to accept valid applications, clearly stating
reasons and setting a time limit for the applicant to correct errors or to
object such intended refusal;
b/ Issuing
a notice of refusal to accept valid applications if the applicant fails to
correct errors, improperly corrects errors or fails to make a justifiable
objection to such intended refusal mentioned at Point a of this Clause;
c/
Issuing a notice of refusal to grant a certificate of registered semiconductor
integrated circuit layout-design in case of an integrated circuit registration
application;
d/
Carrying out procedures specified in Clause 4 of this Article if the applicant
properly corrects errors or makes justifiable objection to the intended refusal
to accept valid application mentioned at Point a of this Clause.
4. For
industrial property registration applications not falling into the cases
specified in Clause 2 of this Article, or in the cases specified at Point d,
Clause 3 of this Article, the state management agency in charge of industrial
property rights shall issue notices of acceptance of valid applications or
carry out procedures for granting protection titles and recording them in the
national register of industrial property as provided for in Article 118 of this
Law, for layout-design registration applications.
5. Mark
registration applications rejected according to the provisions of Clause 3 of
this Article shall be considered having not been filed, except where they serve
as grounds for claims for priority right.
Article
110.- Publication of industrial property registration
applications
1.
Industrial property registration applications which have been accepted as being
valid by the state management agency in charge of industrial property rights
shall be published in the Official Gazette of Industrial Property according to
the provisions of this Article.
2. An
invention registration application shall be published in the 19th
month as from the filing date or the priority date, as applicable, or at an
earlier time at the request of the applicant.
3. An
industrial design registration application, a mark registration application or
a geographical indication registration application shall be published within 2
months as from the date such application is accepted as being valid.
4. A
layout-design registration application shall be published by mode of direct
access at the concerned state management agency in charge of industrial
property rights, provided that no reproduction is permitted; for confidential
information in an application, such access shall be permitted only to competent
authorities and involved parties in the process of carrying out procedures for
invalidating protection titles or the process of carrying out procedures for
handling right infringements.
Principal
information on a layout-design registration application and the protection
title for a layout-design shall be published within 2 months as from the grant
date of such protection title.
Article
111.- Confidentiality of invention registration
applications, industrial design registration applications before publication
thereof
1. Before
invention registration applications or industrial design registration
applications are published in the Official Gazette of Industrial Property, the
state management agency in charge of industrial property rights shall have to
keep confidential information therein.
2. Cadres
and public employees of the state management agency in charge of industrial
property rights who disclose information in invention registration applications
or industrial design registration applications shall be disciplined; if the
information disclosure causes damage to applicants, they must pay compensations
therefor according to the provisions of law.
Article
112.- Third party’s opinions on the grant of
protection titles
As from
the date an industrial property registration application is published in the
Official Gazette of Industrial Property till prior to the date of issuance of a
decision on grant of a protection title, any third party shall have the right
to express opinions to the concerned state management agency in charge of
industrial property rights on the grant or refusal to grant a protection title
in respect of such application. Such opinions must be made in writing and be
accompanied by documents or must quote the source of information.
Article
113.- Request for substantive examination of invention
registration applications
1. Within
42 months after the filing date or the priority date, as applicable, an
applicant or any third party may request the concerned state management agency
in charge of industrial property rights to substantively examine the
application, provided that the substantive examination fee is paid.
2. The
time limit for making request for substantive examination of an invention
registration application involving a request for a utility solution patent
shall be 36 months counting from the filing date or the priority date, as
applicable.
3. Where
no request for substantive examination is filed within the time limit specified
in Clauses 1 and 2 of this Article, the invention registration application
shall be considered having been withdrawn at the expiration of that time limit.
Article
114.- Substantive examination of industrial property
registration applications
1. The
following industrial property registration applications shall be substantively
examined for evaluation of the eligibility for grant of protection titles for
subject matters stated in such applications under protection conditions and for
determination of the respective scope of protection:
a/
Invention registration applications which have already been accepted as being
valid and involve requests for substantive examination filed according to
regulations;
b/
Industrial design registration applications, mark registration applications or
geographical indication registration applications which have been accepted as
being valid.
2.
Layout-design registration applications shall not be substantively examined.
Article
115.- Amendment, supplementation, division and
conversion of industrial property registration applications
1. Before
the concerned state management agency in charge of industrial property rights
notifies a refusal or decides to grant a protection title, the applicant shall
have the following rights:
a/ To
amend or supplement the application;
b/ To
divide the application;
c/ To
request the recording of changes in name or address of the applicant;
d/ To
request the recording of change of the applicant as a result of application
transfer under a contract, bequeathal or inheritance, or under a decision of a
competent agency;
e/ To
convert an invention registration application involving a request for an
invention patent into an invention registration application involving a request
for a utility solution patent and vice versa.
2. The
requesters for completion of procedures specified in Clause 1 of this Article
shall have to pay fees and charges.
3. Any
amendment or supplement to an industrial property registration application must
not expand the scope of the subject matter already disclosed or stated in such
application and must not change the nature of the subject matter subject to
registration stated in the application and must ensure the uniformity of the
application.
4. In case
of division of an application, the filing date of the divided application shall
be determined to be the filing date of the original application.
Article
116.- Withdrawal of industrial property registration
applications
1. Before
the concerned state management agency in charge of industrial property rights
decides or refuses to grant a protection title, the applicant shall have the
right to make written declaration on the withdrawal of the industrial property
registration application in his or her own name or through an industrial
property representation service organization, provided that the power of
attorney clearly states the authorization for application withdrawal.
2. As from
the time the applicant declares the withdrawal of the application, all further
procedures related to such application shall be stopped; fee and charge amounts
already paid in relation to the procedures which have not yet been commenced
shall be refunded to the applicant at his/her request.
3. All
invention or industrial design registration applications which have been
withdrawn or are considered having been withdrawn before their publication and
all mark registration applications which have been withdrawn shall be
considered having never been filed, except where they serve as grounds for
claims for priority right.
Article
117.- Refusal to grant protection titles
1. The
grant of a protection title for an invention, industrial design, mark or
geographical indication registration application shall be refused in the
following cases:
a/
There are grounds to affirm that the subject matter stated in the application
does not fully satisfy the protection conditions;
b/ The
application satisfies the conditions for the grant of a protection title but is
not with the earliest filing date or priority date as in the case specified in
Clause 1, Article 90 of this Law;
c/ The
application falls into a case specified in Clause 2, Article 90 of this Law but
fails to get the consensus of all applicants.
2. The
grant of a protection title for a layout-design registration application that
does not fulfill the formal requirements specified in Article 109 of this Law
shall be refused.
3. Where
an industrial property registration application falls into the cases specified
in Clauses 1 and 2 of this Article, the concerned state management agency in
charge of industrial property rights shall carry out the following procedures:
a/
Notifying an intended refusal to grant a protection title, clearly stating the
reasons therefor and setting a time limit for the applicant to make an
objection to such intended refusal;
b/
Notifying the refusal to grant a protection title if the applicant makes no
objection or makes unjustifiable objection to such intended refusal mentioned
at Point a of this Clause;
c/
Granting a protection title and recording it in the national register of
industrial property according to the provisions of Article 118 of this Law if
the applicant has made a justifiable objection to the intended refusal
mentioned at Point a of this Clause.
4. Where
there appears an objection to the intended grant of a protection title, the
relevant industrial property registration application shall be re-examined with
regard to the matters against which the objection is made.
Article
118.- Grant of protection titles, entry into the
register
Where an
industrial property registration application does not fall into the cases of
refusal to grant protection titles specified in Clauses 1 and 2 and at Point b,
Clause 3, Article 117 of this Law and the applicant has paid fee, the state
management agency in charge of industrial property rights shall decide to grant
a protection title and enter it in the national register of industrial
property.
Article
119.- Time limit for processing industrial property
registration applications
1. An
industrial property registration application shall 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, 12 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
an industrial design, a mark or a geographical indication, 6 months from the
date of publication of the application.
3. The
time limit for re-examination of an industrial property registration
application shall be equal to two thirds of the time limit for the initial
examination, and may, in complicated cases, be prolonged but must not exceed
the time limit for the initial examination.
4. The
duration for amendment or supplementation of applications shall not be counted
into the time limits specified in Clauses 1, 2 and 3 of this Article.
Section 4.
INTERNATIONAL APPLICATIONS AND PROCESSING THEREOF
Article
120.- International applications and processing
thereof
1.
Industrial property registration applications filed under treaties to which the
Socialist Republic of Vietnam is a contracting party shall be collectively
referred to as international applications.
2.
International applications and processing thereof shall comply with the
relevant treaties.
3. The
Government shall guide the implementation of the relevant treaties’ provisions
on international applications, orders and procedures for processing thereof in
compliance with the principles laid down in this Chapter.
Chapter IX
OWNERS AND
CONTENTS OF, AND LIMITATIONS ON INDUSTRIAL PROPERTY RIGHTS
Section 1.
OWNERS AND CONTENTS OF INDUSTRIAL PROPERTY RIGHTS
Article 121.- Owners
of industrial property objects
1. Owners
of inventions, industrial designs or layout-designs mean organizations or
individuals that are granted by the competent agency protection titles for
respective industrial property objects.
Owners of
marks mean organizations or individuals that are granted by the competent
agency protection titles for such marks or have internationally registered
marks as recognized by the competent agency or have well-known marks.
2. Owners
of trade names mean organizations or individuals that lawfully use such trade
names in business activities.
3. Owners
of business secrets mean organizations or individuals that have lawfully
acquired such business secrets and keep them secret. A business secret acquired
by an employee or a performer of an assigned task during the performance of the
hired job or assigned task shall be owned by the employer or the task assignor,
unless otherwise agreed by the parties.
4. The
owner of
The State
shall grant the right to use geographical indications to organizations or
individuals that turn out products bearing such geographical indications in
relevant localities and put such products on the market. The State shall
directly exercise the right to manage geographical indications or grant that
right to organizations representing the interests of all organizations or
individuals granted with the right to use geographical indications.
Article
122.- Authors of inventions, industrial designs or
layout-designs and their rights
1. Authors
of inventions, industrial designs or layout-designs mean persons who have
personally created such industrial property objects. Where two or more persons
have jointly created industrial property objects, they shall be co-authors.
2. Moral
rights of authors of inventions, industrial designs or layout-designs shall
include the following rights:
a/ To be
named as authors in invention patents, utility solution patents, industrial
design patents or certificates of registered semiconductor integrated circuit
layout-designs;
b/ To
be acknowledged as authors in documents in which inventions, industrial designs
or layout-designs are published or introduced.
3.
Economic rights of authors of inventions, industrial designs or layout-designs
are the rights to receive remunerations as provided for in Article 135 of this
Law.
Article
123.- Rights of owners of industrial property objects
1. Owners
of industrial property objects shall have the following economic rights:
a/ To use
or authorize others to use industrial property objects according to the
provisions of Article 124 and Chapter X of this Law;
b/ To
prevent others from using industrial property objects according to the
provisions of Article 125 of this Law;
c/ To
dispose of industrial property objects according to the provisions of Chapter X
of this Law.
2.
Organizations and individuals that are granted by the State the right to use or
the right to manage geographical indications according to the provisions of
Clause 4, Article 121 of this Law shall have the following rights:
a/
Organizations which are granted the right to manage geographical indications
may permit other persons to use such geographical indications according to the
provisions of Point a, Clause 1 of this Article.
b/
Organizations and individuals that are granted the right to use or
organizations which are granted the right to manage geographical indications
may prevent other persons from using such geographical indications according to
the provisions of Point b, Clause 1 of this Article.
Article
124.- Use of industrial property objects
1. Use of
an invention means the performance of the following acts:
a/
Manufacturing the protected product;
b/
Applying the protected process;
c/
Exploiting utilities of the protected product or the product manufactured under
the protected process;
d/
Circulating, advertising, offering, stocking for circulation the product
mentioned at Point c of this Clause;
e/
Importing the product mentioned at Point c of this Clause.
2. Use of
an industrial design means the performance of the following acts:
a/
Manufacturing products with appearance embodying the protected industrial
design;
b/
Circulating, advertising, offering and stocking for circulation products
mentioned at Point a of this Clause;
c/
Importing products mentioned at Point a of this Clause.
3. Use of
a layout-design means the performance of the following acts:
a/
Reproducing the layout-design; manufacturing semiconductor integrated circuits
under the protected layout-design;
b/
Selling, leasing, advertising, offering or stocking copies of the protected
layout-design, semi-conductor integrated circuits manufactured under the
protected layout-design or articles containing such semi-conductor integrated
circuits;
c/
Importing copies of the protected layout-design, semi-conductor integrated
circuits manufactured under the protected layout-design or articles containing
such semi-conductor integrated circuits.
4. Use of
a business secret means the performance of the following acts:
a/
Applying the business secret to manufacture of products, provision of services
or trade in goods;
b/
Selling, advertising for sale, stocking for sale or importing products
manufactured with the application of the business secret;
5. Use of
a mark means the performance of the following acts:
a/
Affixing the protected mark on goods, goods packages, means of business, means
of service provision, transaction documents in business activities;
b/
Circulating, offering, advertising for sale or stocking for sale goods bearing
the protected mark;
c/
Importing goods or services bearing the protected mark.
6. Use of
a trade name means the performance of acts for commercial purposes by using it
to name oneself in business activities, expressing it in transaction documents,
signboards, products, goods, goods packages and means of service provision or
advertisement.
7. Use of
a geographical indication means the performance of the following acts:
a/
Affixing the protected geographical indication on goods or goods packages,
means of business and transaction documents in business activities;
b/
Circulating, offering, advertising for sale or stocking for sale goods bearing
the protected geographical indication;
c/
Importing goods bearing the protected geographical indication.
Article
125.- Right to prevent others from using industrial
property objects
1. Owners
of industrial property objects as well as organizations and individuals granted
the right to use or the right to manage geographical indications may prevent
others from using such industrial property objects unless such use falls into
the cases specified in Clauses 2 and 3 of this Article.
2. Owners
of industrial property objects as well as organizations and individuals granted
the right to use or the right to manage geographical indications shall not have
the right to prevent others from performing the following acts:
a/ Using
inventions, industrial designs or layout-designs in service of their personal
needs or for non-commercial purposes, or for purpose of evaluation, analysis,
research, teaching, testing, trial production or information collection for
carrying out procedures of application for licenses for production, importation
or circulation of products;
b/
Circulating, importing, exploiting utilities of products having been lawfully
put on the market, including overseas markets, except for products put on the
overseas markets not by the mark owners or their licensees;
c/ Using
inventions, industrial designs or layout-designs only for the purpose of
maintaining the operation of foreign means of transport in transit or
temporarily staying in the Vietnamese territory;
d/
Using inventions or industrial designs by persons with the prior use right
according to the provisions of Article 134 of this Law;
e/
Using inventions by persons authorized by competent state agencies according to
the provisions of Articles 145 and 146 of this Law;
f/
Using layout-designs without knowing or having the obligation to know that such
layout-designs are under protection;
g/ Using
marks identical with or similar to protected geographical indications where
such marks have acquired the protection in an honest manner before the date of
filing applications for registration of such geographical indications.
h/ Using
in an honest manner people’s names, descriptive marks of type, quantity,
quality, utility, value, geographical origin and other properties of goods or
services.
3. Owners
of business secrets shall not have the right to prevent others from performing
the following acts:
a/
Disclosing or using business secrets acquired without knowing or having the
obligation to know that they have been unlawfully acquired by others;
b/
Disclosing secret data in order to protect the public according to the
provisions of Clause 1, Article 128 of this Law;
c/
Using secret data specified in Article 128 of this Law not for commercial
purposes;
d/
Disclosing or using business secrets obtained independently;
e/
Disclosing or using business secrets obtained by analyzing or evaluating
lawfully distributed products, unless otherwise agreed upon by analyzers or
evaluators and owners of such business secrets or sellers of such products.
Article
126.- Acts of infringing upon the rights to
inventions, industrial designs and layout-designs
The
following acts shall be regarded as infringements of the rights of owners of
inventions, industrial designs or layout-designs:
1. Using
protected inventions, protected industrial designs or industrial designs
insignificantly different from protected industrial designs, or protected
layout-designs or any original part thereof within valid terms of protection
titles without permission of owners;
2. Using
inventions, industrial designs or layout-designs without paying compensations
according to the provisions on provisional rights in Article 131 of this Law.
Article
127.- Acts of infringing upon the rights to business
secrets
1. The
following acts shall be regarded as infringements of the rights to business
secrets:
a/
Accessing or acquiring information pertaining to business secrets by taking
acts against secret-keeping measures applied by lawful controllers of such
business secrets;
b/
Disclosing or using information pertaining to business secrets without
permission of owners of such business secrets;
c/
Breaching secret-keeping contracts or deceiving, inducing, buying off, forcing,
seducing or abusing the trust of persons in charge of secret-keeping in order
to access, acquire or disclose business secrets;
d/
Accessing or acquiring information pertaining to business secrets of applicants
for licenses for trading in or
circulating products by taking acts against secret-keeping measures applied by
competent agencies;
e/ Using
or disclosing business secrets, while knowing or having obligation to know that
they have been acquired by others engaged in one of the acts specified at
Points a, b, c and d of this Clause;
f/
Failing to perform the secret-keeping obligation specified in Article 128 of
this Law.
2. Lawful
controllers of business secrets defined in Clause 1 of this Article include owners
of business secrets, their lawful licensees and managers of business secrets.
Article
128.- Obligation to keep secret test data
1. Where
the law requires applicants for licenses for trading in or circulating
pharmaceuticals or agro-chemical products to supply test results or any other
data being business secrets obtained by investment of considerable efforts, and
where applicants request such data to be kept secret, the competent licensing
agency shall be obliged to apply necessary measures so that such data are
neither used for unhealthy commercial purposes nor disclosed, except where the
disclosure is necessary to protect the public.
2. From
the submission of secret data in applications to the competent agency mentioned
in Clause 1 of this Article to the end of a 5-year period as from the date the
applicants are granted licenses, such agency must not grant licenses to any
subsequent applicants in whose applications the said secret data are used
without the consent of submitters of such data, except for the cases specified
at Point d, Clause 3, Article 125 of this Law.
Article
129.- Acts of infringing upon the rights to marks,
trade names and geographical indications
1. The
following acts if being performed without the permission of mark owners, shall be regarded as infringements of the rights to
marks:
a/ Using
signs identical with protected marks for goods or services identical with goods
or services on the lists registered together with such marks;
b/ Using
signs identical with protected marks for goods or services similar or related
to those goods on services on the lists registered together with such marks, if
such use is likely to cause confusion as to the origin of the goods or
services;
c/ Using
signs similar to protected marks for goods or services identical with, similar
to or related to goods or services on the lists registered together with such
marks, if such use is likely to cause confusion as to the origin of the goods
or services;
d/ Using
signs identical with, or similar to, well-known marks, or signs in the form of
translations or transcriptions of well-known marks for any goods or services,
including those unidentical with, dissimilar or unrelated to goods or services
on the lists of those bearing well-known marks, if such use is likely to cause
confusion as to the origin of the goods or services or misleading impression as
to the relationship between users of such signs and well-known mark owners.
2. All
acts of using commercial indications identical with, or similar to, others’
trade names having been used earlier for the same or similar type of goods or
services, that cause confusion as to business entities, establishments or
activities under such trade names shall be regarded as infringements of the
rights to trade names.
3. The
following acts shall be regarded as infringements of the rights to protected
geographical indications:
a/
Using protected geographical indications for products which do not satisfy the
criteria of peculiar characteristics and quality of products bearing geographical
indications although such products originate from geographical areas bearing
such geographical indications;
b/
Using protected geographical indications for products similar to products
bearing geographical indications for the
purposes of taking advantage of their reputation and popularity;
c/
Using any sign identical with, or similar to, protected geographical
indications for products not originating from geographical areas bearing such
geographical indications and therefore misleading consumers as to that products
originate from such geographical areas;
d/
Using protected geographical indications of wines or spirits for wines or
spirits not originating from geographical areas bearing such geographical
indication, even where the true origin of goods is indicated or geographical
indications are used in the form of translations or transcriptions, or
accompanied by such words as “category,” “model,” “type,” “imitation” or the
like.
Article
130.- Acts of unfair competition
1. The
following acts shall be regarded as acts of unfair competition:
a/
Using commercial indications to cause confusion as to business entities,
business activities or commercial origin of goods or services;
b/ Using
commercial indications to cause confusion as to the origin, production method,
utilities, quality, quantity or other characteristics of goods or services; or
as to the conditions for provision of goods or services;
c/ Using
marks protected in a country which is a contracting party to a treaty to which
the Socialist Republic of Vietnam is also a contracting party and under which
representatives or agents of owners of such marks are prohibited from using
such marks, if users are representatives or agents of the mark owners and such
use is neither consented to by the mark owners nor justified;
d/
Registering or possessing the right to use or using domain names identical
with, or confusingly similar to, protected trade names or marks of others, or
geographical indications without having the right to use, for the purpose of
possessing domain names, benefiting from or prejudicing reputation and
popularity of respective marks, trade names or geographical indications.
2.
Commercial indications specified in Clause 1 of this Article mean signs and
information serving as guidelines to trading of goods or services, including
marks, trade names, business symbols, business slogans, geographical
indications, designs of packages and/or labels of goods.
3. Acts of
using commercial indications specified in Clause 1 of this Article include acts
of affixing such commercial indications on goods, goods packages, means of
service provision, business transaction documents or advertising means;
selling, advertising for sale, stocking for sale and importing goods affixed
with such commercial indications.
Article
131.- Provisional rights to inventions, industrial
designs or layout-designs
1. Where
an applicant for registration of an invention or industrial design knows that
such invention or industrial design is being used by another person without
prior use right for commercial purposes, the applicant may notify in writing
the user of the filing of his/her application, clearly specifying the filing
date and the date of application publication in the Official Gazette of
Industrial Property so that the later shall terminate or continue such use.
2. For a
layout-design which has, before the grant date of the certificate of registered
semiconductor integrated circuit layout-design, been commercially exploited by
the person with the registration right or his/her licensee, if such person
knows that such layout-design is being used by another person for commercial
purposes, he/she may notify in writing the user of his/her registration right
so that the later shall terminate or continue such use.
3. Where
the person notified of contents specified in Clauses 1 and 2 of this Article
continues using such invention, industrial design or layout-design, as soon as
an invention patent, utility solution patent, industrial design patent or
certificate of registered semiconductor integrated circuit layout-design is
granted, the owner of such invention, industrial design or layout-design shall
have the right to request the user of such invention, industrial design or
layout-design to pay a compensation equivalent to the price for licensing of
such invention, industrial design or layout-design within the relevant scope
and duration of use.
Section 2.
LIMITATIONS ON INDUSTRIAL PROPERTY RIGHTS
Article
132.- Elements limiting industrial property rights
Under this
Law, industrial property rights may be limited by the following elements:
1. Right
of prior users to inventions or industrial designs;
2.
Obligations of owners, including:
a/ To
pay remunerations to the authors of inventions, industrial designs or
layout-designs;
b/ To
use inventions or marks.
3.
Licensing of inventions under decisions of state competent agencies.
Article
133.- Rights to use inventions on behalf of the State
1.
Ministries and ministerial-level agencies shall have the right to, on behalf of
the State, use or permit other organizations or individuals to use inventions
in domains under their respective management for public and non-commercial
purposes, national defense, security, disease prevention and treatment and
nutrition for the people, and to meet other urgent social needs without having
to obtain permission of invention owners or their licensees under exclusive
contracts (hereinafter referred to as holders of exclusive right to use
inventions) according to Articles 145
and 146 of this Law.
2. The use
of inventions mentioned in Clause 1 of this Article shall be limited within the
scope of and under the conditions for licensing provided for in Clause 1,
Article 146 of this Law, except where such inventions are created by using
material-technical facilities and funds from the state budget.
Article
134.- Right of prior use of inventions and industrial
designs
1. Where a
person has, before the publication date of an invention or industrial design
registration application, used or prepared necessary conditions for use of an
invention or industrial design identical with the protected invention or
industrial design stated in such registration application but created
independently (hereinafter referred to as the prior use right holder), then
after a protection title is granted, such person shall be entitled to continue
using such invention or industrial design within the scope and volume of use or
use preparations without having to obtain permission 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 shall not be
regarded as an infringement of the right of invention or industrial design
owners.
2. Holders
of prior use right to inventions or industrial designs must not assign such
right to others, except where such 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 must not expand
the use scope and volume unless it is so permitted by invention or industrial
design owners.
Article
135.- Obligation to pay remunerations to authors of
inventions, industrial designs or layout-designs
1. Owners
of inventions, industrial designs or layout-designs are obliged to pay
remunerations to their authors according to the provisions of Clauses 2 and 3
of this Article, unless otherwise agreed upon by the parties.
2. The
minimum level of remuneration payable by an owner to an author is provided for
as follows:
a/ 10%
of the profit amount gained by the owner from the use of an invention,
industrial design or layout-design;
b/ 15%
of total amount received by the owner in each payment for licensing of an
invention, industrial design or layout-design.
3. Where
an invention, industrial design or layout-design is jointly created by more
than one authors, the remuneration level provided for
in Clause 2 of this Article shall be applicable to all co-authors. The
co-authors shall agree by themselves on the division of the remuneration amount
paid by the owner.
4. The
obligation to pay remunerations to authors of inventions, industrial designs or
layout-designs shall exist throughout the term of protection of such
inventions, industrial designs or layout-designs.
Article
136.- Obligation to use inventions and marks
1. Owners
of inventions are obliged to manufacture protected products or apply protected
processes to satisfy the requirements of national defense, security, disease
prevention and treatment and nutrition for the people or to meet other social
urgent needs. When there arise the needs mentioned in this Clause but invention
owners fail to perform such obligation, the competent state agency may license
such inventions to others without permission of invention owners according to
the provisions of Articles 145 and 146 of this Law.
2. Owners
of marks are obliged to use such marks continuously. Where a mark has not been
used for 5 consecutive years or more, the ownership right to such mark shall be
invalidated according to the provisions of Article 95 of this Law.
Article
137.- Obligations to authorize the use of principal
inventions for the purpose of using dependent inventions
1. A
dependent invention means an invention created based on another invention (hereinafter
referred to as principal invention) and may only be used on the condition that
the principal invention is also used.
2. Where
the owner of a dependent invention can prove that his/her invention makes an
important technical advance as compared with the principal invention and has a
great economic significance, he/she may request the owner of the principal
invention to license such principal invention with reasonably commercial price
and conditions.
Where the
owner of a principal invention fails to satisfy the request of the owner of a
dependent invention without justifiable reasons, the concerned competent state
agency may license such invention to the owner of the dependent invention
without permission of the owner of the principal invention according to the
provisions of Articles 145 and 146 of this Law.
Chapter X
TRANSFER
OF INDUSTRIAL PROPERTY RIGHTS
Section 1.
ASSIGNMENT OF INDUSTRIAL PROPERTY RIGHTS
Article
138.- General provisions on assignment of industrial
property rights
1.
Assignment of an industrial property right means the transfer of ownership
right by owner of such industrial property right to another organization or
individual.
2.
Assignment of industrial property rights must be established in the form of
written contracts (hereinafter referred to as industrial property right
assignment contracts).
Article
139.- Restrictions on assignment of industrial
property rights
1.
Industrial property right owners may only assign their rights within the scope
of protection.
2. Rights
to geographical indications shall not be assigned.
3. Rights
to trade names shall only be assigned together with the transfer of the entire
business establishments and business activities under such trade names.
4. The
assignment of the rights to marks must not cause confusion as to properties or
origins of goods or services bearing such marks.
5. Rights
to marks shall only be assigned to organizations or individuals that satisfy
conditions for persons having the right to register such marks.
Article
140.- Contents of industrial property right assignment
contracts
An
industrial property right assignment contract must have the following principal
contents:
1. Full
names and addresses of the assignor and the assignee;
2.
Assignment bases;
3.
Assignment price;
4. Rights and
obligations of the assignor and the assignee.
Section 2.
LICENSING OF INDUSTRIAL PROPERTY OBJECTS
Article
141.- General provisions on licensing of industrial
property objects
1.
Licensing of an industrial property object means the permission by the owner of
such industrial property object for another organization or individual to use
the industrial property object within the scope of his/her use right.
2.
Licensing of industrial property objects must be established in the form of
written contracts (hereinafter referred to as industrial property object
license contracts).
Article
142.- Restrictions on licensing of industrial property
objects
1. The
right to use geographical indications or trade names must not be licensed.
2. The
right to use collective marks must not be licensed to organizations or
individuals other than members of the owners of such collective marks.
3. The
licensee must not enter into a sub-license contract with a third party, unless
it is so permitted by the licensor.
4. Mark
licensees shall be obliged to indicate on goods and goods packages that such
goods have been manufactured under mark license contracts.
5.
Invention licensees under exclusive contracts shall be obliged to use such
inventions in the same manner as the invention owners according to the
provisions of Clause 1, Article 136 of this Law.
Article
143.- Types of industrial property object license
contracts
Industrial
property object license contracts shall be of the following types:
1.
Exclusive contract means a contract under which, within licensing scope and
term, the licensee shall have an exclusive right to use the licensed industrial
property object while the licensor may neither enter into any industrial
property object license contract with any third party nor, without permission
of the licensee, use such industrial property object;
2.
Non-exclusive contract means a contract under which, within licensing scope and
term, the licensor shall still have the rights to use the industrial property
object and to enter into non-exclusive industrial property object license
contracts with others.
3.
Industrial property object sub-license contract means a contract under which
the licensor is a licensee of the right to use an industrial property object
under another contract.
Article
144.- Contents of industrial property object license
contracts
1. An
industrial property object license contract must have the following principal
contents:
a/ Full
names and addresses of the licensor and the licensee;
b/
Licensing bases;
c/
Contract type;
d/
Licensing scope of, covering limitations on use right and territorial
limitations;
e/
Contract term;
f/
Licensing price;
g/
Rights and obligations of the licensor and the licensee.
2. An
industrial property object license contract must not have provisions which
unreasonably restrict the right of the licensee, particularly the following
provisions which do not derive from the rights of the licensor:
a/
Prohibiting the licensee to improve the industrial property object other than
marks; compelling the licensee to transfer free of charge to the licensor
improvements of the industrial property object made by the licensee or the
right of industrial property registration or industrial property rights to such
improvements;
b/
Directly or indirectly restricting the licensee to export goods produced or
services provided under the industrial property object license contract to the
territories where the licensor neither holds the respective industrial property
rights nor has the exclusive right to import such goods;
c/
Compelling the licensee to buy all or a certain percentage of raw materials,
components or equipment from the licensor or a third party designated by the
licensor not for the purpose of ensuring the quality of goods produced or
services provided by the licensee;
d/
Forbidding the licensee to complain about or initiate lawsuits with regard to
the validity of the industrial property rights or the licensor’s right to
license.
3. Any
clauses in the contract falling into the cases specified in Clause 2 of this
Article shall be ex-officio invalid.
Section 3.
COMPULSORY LICENSING OF INVENTIONS
Article
145.- Bases for compulsory licensing of inventions
1. In the
following cases, the right to use an invention may be licensed to another
organization or individual under a decision of the competent state agency
defined in Clause 1, Article 147 of this Law without permission from the holder
of exclusive right to use such invention:
a/ Where
the use of such invention is for public and non-commercial purposes or in
service of national defense, security, disease prevention and treatment and
nutrition for people or other urgent needs of the society.
b/ Where
the holder of exclusive right to use such invention fails to fulfill the
obligations to use such invention provided for in Clause 1, Article 136 and
Clause 5, Article 142 of this Law upon the expiration of a 4-year duration as
from the date of filing the invention registration application and the
expiration of a 3-year duration as from the date of granting the invention
patent;
c/ Where a
person who wishes to use the invention fails to reach an agreement with the
holder of exclusive right to use such invention on the entry of an invention
license contract in spite of his/her efforts made within a reasonable time for
negotiation on satisfactory commercial price and conditions;
d/
Where the holder of exclusive right to use such invention is considered having
performed anti-competition practices banned by competition law.
2. The
holder of exclusive right to use an invention may request the termination of
the use right when the bases for licensing provided for in Clause 1 of this
Article no longer exist and are unlikely to recur, provided that such
termination shall not be prejudicial to the invention licensee;
Article
146.- Conditions of limitation on the right to use
inventions licensed under compulsory decisions
1. The
right to use an invention licensed under a decision of a competent state agency
must be compliant with the following conditions:
a/ Such
licensed use right is non-exclusive;
b/ Such
licensed use right is only limited to a scope and duration sufficient to
achieve the licensing objectives, and largely for the domestic market, except
for the cases specified at Point d, Clause 1, Article 145 of this Law. For an
invention in semi-conductor technology, the licensing thereof shall be only for
public and non-commercial purposes or for handling anti-competition practices
according to the provisions of the competition law;
c/ The
licensee must neither assign nor sub-license such right to others, except where
the assignment is effected together with the transfer of his/her business
establishment;
d/ The
licensee shall have to pay the holder of exclusive right to use the invention a
satisfactory compensation depending on the economic value of such use right in
each specific case, and compliant with the compensation bracket set by the
Government.
2. Apart
from the conditions specified in Clause 1 of this Article, the right to use an
invention licensed in any of the cases specified in Clause 2, Article 137 of
this Law must also satisfy the following conditions:
a/ The
holder of exclusive right to use the principal invention shall also be licensed
to use the dependent invention on reasonable terms;
b/ The
licensee of the right to use the principal invention must not assign such
right, except where the assignment is effected together with all rights to the
dependent invention.
Article
147.- Competence and procedures for licensing of
inventions under compulsory decisions
1. The
Science and Technology Ministry shall issue decisions on licensing of
inventions based on the consideration of requests for licensing in the cases
specified at Points b, c and d, Clause 1, Article 145 of this Law.
Ministries
and ministerial-level agencies shall issue decisions on licensing of inventions
in domains under their respective management in the cases specified at Point a,
Clause 1, Article 145 of this Law after consulting opinions of the Science and
Technology Ministry.
2.
Decisions on licensing of inventions must set out appropriate use scope and
conditions according to the provisions of Article 146 of this Law.
3. The
state agency competent to decide on licensing of inventions shall have to
promptly notify the holders of exclusive right to use such inventions of its
decisions.
4.
Decisions on licensing of inventions or on refusal of licensing of inventions
may be subject to complaints or lawsuits according to the provisions of law.
5. The
Government shall specify procedures for licensing of inventions defined in this
Article.
Section 4.
REGISTRATION OF CONTRACTS FOR TRANSFER OF INDUSTRIAL
PROPERTY RIGHTS
Article
148.- Validity of contracts for transfer of industrial
property rights
1. For the
industrial property rights established on the basis of registration according
to the provisions of Point a, Clause 3, Article 6 of this Law, an industrial
property right assignment contract shall be valid upon its registration with
the state management agency in charge of industrial property rights.
2. For the
industrial property rights established on the basis of registration according
to the provisions of Point a, Clause 3, Article 6 of this Law, an industrial
property object license contract shall be valid as agreed upon by the involved
parties but shall be legally effective to a third party upon registration with
the state management agency in charge of industrial property rights.
3.
Validity of an industrial property object license contract shall be terminated
ex-officio upon the termination of licensor’s industrial property rights.
Article
149.- Dossiers for registration of contracts for
transfer of industrial property rights
A dossier
for registration of an industrial property object license contract or an
industrial property right assignment contract shall comprise:
1. A
declaration for registration, made according to a set form;
2. The
original or a valid copy of the contract;
3. The
original of the protection title, for case of industrial property right
assignment;
4. Co-owners’ written consent, or a written explanation of the reason
for disagreement of any co-owner with the right assignment where the industrial
property rights are under joint ownership;
5.
Vouchers of payment of fees and charges;
6. A power
of attorney, if the dossier is filed through a representative.
Article
150.- Processing of dossiers for registration of
contracts for transfer of industrial property rights
Order and
procedures for receiving and processing dossiers for registration of industrial
property object license contracts or industrial property right assignment
contracts shall be specified by the Government.
Chapter XI
INDUSTRIAL
PROPERTY REPRESENTATION
Article
151.- Industrial property representation services
1.
Industrial property representation services cover:
a/ Representing
organizations or individuals before competent state agencies in the
establishment and enforcement of industrial property rights;
b/
Providing consultancy on issues related to procedures for the establishment and
enforcement of industrial property rights;
c/
Other services related to procedures for the establishment and enforcement of
industrial property rights.
2.
Industrial property representatives include organizations providing industrial
property representation services (hereinafter referred to as industrial
property representation service organizations) and individuals practicing
industrial property representation of such organizations (hereinafter referred
to as industrial property agents).
Article
152.- Scope of rights of industrial property representatives
1.
Industrial property representation service organizations shall only provide
services within the scope of authorization and may re-authorize other
industrial property representation service organizations when they obtain
written consents of authorizing parties.
2.
Industrial property representation service organizations may waive their
industrial property representation service business after having lawfully
transferred all incomplete representation jobs to other industrial property
representation service organizations.
3.
Industrial property representatives must not perform the following activities:
a/
Concurrently representing parties that dispute over industrial property rights;
b/
Withdrawing applications for protection titles, declaring waiver of protection
or withdrawing appeals against the establishment of industrial property rights
without consents of authorizing parties;
c/
Deceiving or forcing their clients to enter into and perform contracts for
industrial property representation services.
Article
153.- Responsibilities of industrial property
representatives
1.
Industrial property representatives shall have the following responsibilities:
a/ To
clearly notify fee and charge amounts and rates, which are related to
procedures for establishment and enforcement of industrial property rights,
service charge amounts and rates according to the service charge tariff
registered at the state management agency in charge of industrial property
rights;
b/ To
keep confidential information and documents related to cases of their
representation;
c/ To
truthfully and adequately inform all notices and requests of the state agency
competent to establish and enforce industrial property rights; to deliver on
time protection titles and other decisions to the represented parties;
d/ To
protect rights and legitimate interests of the represented parties by promptly
satisfying all requests of the state agency competent to establish and enforce
industrial property rights in favor of the represented parties;
e/ To
notify the state agency competent to establish and enforce industrial property
rights of all changes in the names, addresses of and other information on the
represented parties when necessary.
2.
Industrial property representation service organizations shall bear civil
liabilities toward the represented parties for representation performed by
their industrial property agents on their behalf.
Article
154.- Conditions for industrial property
representation service business
Organizations
which satisfy the following conditions shall be allowed to provide industrial
property representation services as industrial property representation service
organizations:
1. Being
law-practicing businesses or organizations, or scientific and technological
service organizations lawfully established and operating;
2. Having
the function of providing industrial property representation services, which is
stated in their business registration certificates or operation registration
certificates (hereinafter referred to collectively 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.
Article
155.- Conditions for industrial property
representation service practice
1. An
individual who satisfies the following conditions shall be allowed to practice
industrial property representation service:
a/
Having industrial property representation service-practicing certificate;
b/
Working for one industrial property representation service organization.
2.
Individuals who satisfy the following conditions shall be granted industrial
property representation service-practicing certificates:
a/
Being Vietnamese citizens with full capacity for civil acts;
b/
Residing permanently in
c/
Having university degrees;
d/ Having
personally been engaged in the domain of industrial property law for 5
consecutive years or more or in the examination of assorted industrial property
registration applications at the national or international industrial property
offices for 5 consecutive years or more or having graduated from training
courses on industrial property law recognized by competent agencies;
e/
Being not cadres or civil servants working in the state agency competent to
establish and enforce industrial property rights;
f/
Passing examinations on industrial property representation profession,
organized by competent agencies.
3. The
Government shall specify programs on industrial property law training,
examination of industrial property representation profession, and grant of
industrial property representation service-practicing certificates.
Article
156.- Recording and deletion of names of industrial
property representation service organizations, withdrawal of industrial
property representation service-practicing certificates
1.
Organizations and individuals that satisfy the conditions for industrial
property representation service business or practice specified in Articles 154
and 155 of this Law shall be, at their request, recorded in the national
register of industrial property representatives and published in the Official
Gazette of Industrial Property by the state management agency in charge of
industrial property rights.
2. Where there
are grounds to confirm that an industrial property representative no longer
satisfies the business or practice conditions specified in Articles 154 and 155
of this Law, the state management agency in charge of industrial property
rights shall delete the name of such industrial property representative in the
national register of industrial property and publish such deletion in the
Official Gazette of Industrial Property.
3.
Industrial property representation service organizations which violate the provisions
of Clause 3, Article 152 and Article 153 of this Law shall be handled according
to the provisions of law;
4.
Industrial property agents who make professional mistakes while practicing or
violate the provisions of Point c, Clause 3, Article 152 and Point a, Clause 1,
Article 153 of this Law shall, depending on the nature and seriousness of their
mistakes or violations, be subject to cautions, monetary fines or withdrawal of
industrial property representation service-practicing certificates.
Part Four
RIGHTS TO
PLANT VARIETIES
Chapter
XII
CONDITIONS
FOR PROTECTION OF RIGHTS TO PLANT VARIETIES
Article
157.- Organizations and individuals that have rights
to plant varieties protected
1.
Organizations and individuals that have rights to plant varieties protected
mean 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 1 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; and foreign organizations and
individuals that have permanent residence addresses in Vietnam or have
establishments producing or trading in plant varieties in Vietnam.
Article
158.- General conditions for plant varieties eligible
for protection
Plant
varieties eligible for protection mean those which have been selected and bred
or discovered and developed, are on the list of State-protected plant species
promulgated by the Agriculture and Rural
Development Ministry, and are new, distinct, uniform, stable and designated by
proper denominations.
Article
159.- Novelty of plant varieties
A plant
variety shall be deemed new if reproductive materials or harvested materials of
such variety has not yet been sold or otherwise distributed for the purpose of
exploitation in the Vietnamese territory by the registration right holder
defined in Article 164 of this Law or his/her licensee one year before the
filing date of the registration application; or for exploitation outside the
Vietnamese territory six years before the filing date of the registration
application for timber trees or vines, and four years for other plant
varieties.
Article
160.- Distinctness of plant varieties
1. A
variety shall be deemed to be distinct if it is clearly distinguishable from
any other variety whose existence is a matter of common knowledge at the time
of filing the application or the priority date, as the case may be.
2. Plant
varieties whose existence is a matter of common knowledge defined in Clause 1
of this Article mean those falling into one of the following cases:
a/
Their reproductive materials or harvested materials have been widely used in
the market of any country at the time of filing of the protection registration
application;
b/ They
have been protected or registered into the list of plant species in any
country;
c/ They
are subject matters of protection registration applications or registered into
the list of plant species in any country, provided that these applications have
not been rejected;
d/
Their detailed descriptions have been published.
Article
161.- Uniformity of plant varieties
A plant
variety shall be deemed uniform if, subject to the variation that may be
expected from the particular features of its propagation, it is sufficiently
uniform in its relevant characteristics.
Article 162.- Stability of plant varieties
A plant
variety shall be deemed stable if its relevant originally described
characteristics remain unchanged after repeated propagation or, in the case of
a particular cycle of propagation, at the end of each cycle.
Article
163.- Denominations of plant varieties
1. The
registrant must designate a proper denomination for a plant variety which must
be the same as the denomination registered in any country upon filing of the
protection registration application.
2. The
denomination of a plant variety shall be deemed proper if it is distinguishable
from those of other plant varieties of common knowledge in the same species or
similar species.
3.
Denominations of plant varieties shall be deemed improper in the following
cases:
a/ They
consist of numerals only, except where such numerals are relevant to
characteristics or the breeding of such varieties;
b/ They
violate the 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;
f/ They
are identical or similar to denominations of harvested materials of such plant
varieties;
g/ They
affect prior rights of other organizations or individuals.
4.
Organizations and individuals that offer for sale or bring to the market reproductive
materials of plant varieties must use the denominations of such plant varieties
as stated in protection titles even after the expiration of the protection
terms.
5. When
denominations of plant varieties are combined with trademarks, trade names or
indications similar to denominations of plant varieties already registered for
sale offer or brought to the market, such denominations must still be
distinguishable.
Chapter
XIII
ESTABLISHMENT
OF RIGHTS TO PLANT VARIETIES
Section 1.
ESTABLISHMENT OF RIGHTS TO PLANT VARIETIES
Article
164.- Registration of rights to plant varieties
1. To
obtain protection of rights to plant varieties, organizations and individuals
must file their applications for protection registration with the state
management agency in charge of rights to plant varieties.
2.
Organizations and individuals having the right to register plant varieties for protection (hereinafter
referred to as registrants) include:
a/
Breeders who have personally selected and bred or discovered and developed the
plant varieties with their own efforts and expenses;
b/
Organizations and individuals that fund breeders to select and breed or
discover and develop plant varieties in form of job assignment or hiring,
unless otherwise agreed upon;
c/
Organizations and individuals that are transferred or inherit the right to
register for protection of plant varieties.
3. For
plant varieties which are selected and bred or discovered and developed with
the use of the state budget or under projects managed by the State, the rights
to such plant varieties shall belong to the State. The Government shall specify
the registration of rights to plant varieties mentioned in this Clause.
Article
165.- Mode of filing applications for registration of
rights to plant varieties
1.
Vietnamese organizations and individuals or foreign organizations and
individuals that have permanent residence addresses in Vietnam or have plant
variety production or trading establishments in Vietnam may file their
applications for registration of rights to plant varieties (hereinafter
referred to as protection registration applications) directly or through their
lawful representatives in Vietnam.
2. Foreign
organizations and individuals having no permanent residence addresses in
Article
166.- First-to-file principle for plant varieties
1. Where
two or more parties independently file protection registration applications on
different days for the same plant variety, the plant variety protection
certificate shall only be granted to the earliest valid registrant.
2. Where
there are many protection registration applications for the same plant variety
filed on the same day, the plant variety protection certificate shall only be
granted to the registrant whose name is used for the filing of the sole
application as agreed upon by all the other registrants. Where these
registrants fail to reach agreement, the state management agency in charge of
rights to plant varieties shall consider to grant the
plant variety protection certificate to the party who is determined to be the
first breeder who has selected and bred or discovered and developed such
variety.
Article
167.- Priority principle for protection registration
applications
1. A
registrant may claim the priority right where a protection registration
application is filed within 12 months from the date of filing the protection
registration application for the same plant variety in a country which has
concluded with the Socialist Republic of Vietnam an agreement on plant variety
protection. The first filing date shall not be included in this time limit.
2. In
order to enjoy the priority right, the registrant must express the claim for
the priority right in his/her protection registration application. Within 3
months after filing the registration application, the registrant must produce
copies of documents on the first application certified by the competent agency
and samples or other evidence proving that the variety in both applications is
the same and pay the fee. The registrant may supply necessary information,
documents or materials to the state management agency in charge of rights to
plant varieties for examination according to the provisions of Articles 176 and
178 of this Law within 2 years after the expiration of the duration for
enjoying the priority right, or within an appropriate duration depending on the
species of the plant variety stated in the application, after the first
application is rejected or withdrawn.
3. Where a
protection registration application is eligible for the priority right, the
priority date shall be the first filing date.
4. Within
the time limit specified in Clause 1 of this Article, the filing of another
application or the publication or use of the plant variety being the subject
matter of the first application shall not be considered a ground for rejecting
the protection registration application eligible for the priority right.
Article
168.- Plant variety protection certificates and the
national register of protected plant varieties
1. A
protection certificate for a plant variety shall state the denomination and
species of such variety, the name of the owner of rights to such plant variety
(hereinafter referred to as the protection certificate holder), the name of the
plant variety breeder and the protection term of rights to the plant variety.
2. The
state management agency in charge of rights to plant varieties shall record the
grant and contents of protection certificates in the national register for
protected plant varieties, and archive such information.
Article
169.- Validity of plant variety protection
certificates
1. Plant
variety protection certificates shall be valid throughout the Vietnamese
territory.
2. Plant
variety protection certificates shall be valid from the grant date to the end
of a period of 25 years for timber trees and vines; or 20 years for other plant
varieties.
3. Plant
variety protection certificates may have their validity terminated or be
invalidated according to the provisions of Articles 170 and 171 of this Law.
Article
170.- Termination and restoration of validity of plant
variety protection certificates
1. The
validity of a plant variety protection certificate may be terminated in the
following cases:
a/ The
protected plant variety no longer satisfies the conditions of uniformity and
stability as at the time of certificate grant;
b/ The
protection certificate holder fails to pay the validity maintenance fee
according to regulations;
c/ The
protection certificate holder fails to supply necessary documents and
reproductive materials for maintaining and preserving the plant variety
according to regulations;
d/ The
protection certificate holder fails to change the denomination of the plant
variety at the request of the state management agency in charge of rights to
plant varieties.
2. In the
cases specified at Points a, c and d, Clause 1 of this Article, the concerned
state management agency in charge of rights to plant varieties shall issue a
decision on termination of validity of the plant variety protection
certificate.
3. In the
case specified at Point b, Clause 1 of this Article, upon the expiration of the
time limit for payment of the validity maintenance fee, the concerned state
management agency in charge of rights to plant varieties shall issue a decision
on termination of validity of the plant variety protection certificate as from
the first day of the next valid year in which the validity maintenance fee is
not paid.
4. In the
cases specified at Point a, Clause 1 of this Article, all organizations and
individuals may request the state management agency in charge of rights to
plant varieties to terminate the validity of the plant variety protection
certificates.
Based on
the results of considering the application for cancellation of a plant variety
protection certificate and the opinions of relevant parties, the concerned
state management agency in charge of rights to plant varieties shall issue a
decision to terminate the validity of the certificate or to refuse the validity
termination of the protection certificate.
5. In the
cases specified in Clause 1 of this Article, the concerned state management
agency in charge of rights to plant varieties shall publish such termination on
a specialized magazine, clearly stating the reasons therefor,
and concurrently send a notice thereon to the certificate holder. Within 30
days from the date of notification, the certificate holder may file a request
for application of remedies to reasons for which the validity is terminated
with the state management agency in charge of rights to plant varieties and pay
the fee for restoration of validity of the plant variety protection
certificate. Within 90 days after the date of filing the request, the
protection certificate holder must remedy reasons for which the validity is
terminated, for the cases specified at Points b, c and d, Clause 1 of this
Article. The state management agency in charge of rights to plant varieties
shall consider and restore the validity of the protection certificate and
publish it in a specialized magazine.
In the
cases specified at Point a, Clause 1 of this Article, the validity of the plant
variety protection certificate shall be restored after its holder successfully
proves that the plant variety has satisfied the conditions of uniformity and
stability and has been so certified by the state management agency in charge of
rights to plant varieties.
Article
171.- Invalidation of plant variety protection
certificates
1. A plant
variety protection certificate shall be invalidated in the following cases:
a/ The
plant variety protection registration application is filed in the name of a
person who does not have the registration right, except where the right to such
plant variety has been assigned to the holder of the registration right;
b/ The
protected plant variety fails to satisfy the conditions of novelty or
distinctness at the time of grant of the plant variety protection certificate;
c/ The
plant variety fails to satisfy the conditions of uniformity or stability where
the plant variety protection certificate is granted on the basis of results of
technical test conducted by the registrant.
2. In the
valid term of the plant variety protection certificate, all organizations and
individuals may request the state management agency in charge of rights to
plant varieties to invalidate the plant variety protection certificate.
Basing
itself on results of the examination of the requests for invalidation of plant
variety protection certificates and opinions of relevant parties, the state
management agency in charge of rights to plant varieties shall issue notices on
refusal to invalidate or issue decisions on invalidation of plant variety
protection certificates.
3. Where a
plant variety protection certificate is invalidated, all transactions arising
on the basis of the plant variety granted such protection certificate shall be
null and void. The handling of null and void transactions shall comply with the
Civil Code.
Article
172.- Modification or re-grant of plant variety
protection certificates
1.
Protection certificate holders may request the state management agency in
charge of rights to plant varieties to modify or correct errors related to
their names and addresses, provided that they shall pay fees and charges. Where
such errors are made by the state management agency in charge of rights to
plant varieties, this agency must correct such errors and protection
certificate holders shall not have to pay fees and charges.
2.
Protection certificate holders may request the state management agency in
charge of rights to plant varieties to re-grant plant variety protection
certificates where their protection certificates are lost or damaged provided
they shall pay fees and charges.
Article
173.- Publication of decisions related to plant
variety protection certificates
Decisions
on grant, re-grant, termination of validity, invalidation or modification of
plant variety protection certificates shall be published by the state
management agency in charge of rights to plant varieties in a specialized
magazine on plant varieties within 60 days after such decisions are issued.
Section 2.
PROTECTION REGISTRATION APPLICATIONS AND PROCEDURES FOR PROCESSING THEREOF
Article
174.- Protection registration applications
1. A
protection registration application comprises the following documents:
a/ A
declaration form for registration made according to a set from;
b/
Photos and technical declarations made according to a set form;
c/
Power of attorney, where the application is filed through a representative;
d/
Documents evidencing the registration right where the registrant is a
transferee of the registration right;
e/
Documents evidencing the priority right, where the application contains a claim
for enjoying the priority right.
f/
Vouchers of payment of fees and charges.
2.
Protection registration applications and documents for transaction between
registrants and the state management agency in charge of rights to plant varieties
must be made in Vietnamese, except for the following documents which may be
made in another language but must be translated into Vietnamese at the request
of the state management agency in charge of rights to plant varieties:
a/
Power of attorney;
b/ Documents
evidencing the registration right;
c/
Documents evidencing the priority right;
d/
Other documents in support of applications.
3.
Documents evidencing the priority right of a registration application for
protection of rights to a plant variety include:
a/
Copies of the first application(s) certified by the receiving agency;
b/
Papers on transfer or inheritance of the priority right if such right is
acquired from another person.
4. Each
application shall be registered only for the protection of one plant variety.
Article
175.- Receipt of protection registration applications,
filing date
1. A
protection registration application shall be received by the concerned state
management agency in charge of rights to plant varieties only when it is
enclosed with all the documents specified in Clause 1, Article 174 of this Law.
2. The
filing date of an application is the date on which such application is received
by the concerned state management agency in charge of rights to plant
varieties.
Article
176.- Formal examination of protection registration
applications
1. The
state management agency in charge of rights to plant varieties shall conduct
the formal examination of applications within 15 days after receiving such
applications to determine the validity of such applications.
2. A
protection registration application shall be deemed invalid in the following
cases:
a/ It
fails to satisfy the formal requirements as specified;
b/ The
plant variety stated in such application does not belong to a plant species on
the list of protected plant species;
c/ It is
filed by a person who does not have the registration right, even where the
registration right belongs to many organizations or individuals but one or
several of them do not agree to make the registration.
3. The
state management agency in charge of rights to plant varieties shall carry out
the following procedures:
a/
Notifying the refusal to accept the applications in the cases specified at
Points b and c, Clause 2 of this Article, clearly stating the reasons therefor;
b/
Notifying the registrant of errors for correction in the cases specified at
Point a, Clause 2 of this Article, and setting a time limit of 30 days after
the receipt of the notice for the correction of such errors by the registrant;
c/
Notifying the refusal to accept the application where the registrant fails to
correct errors or where the registrant does not make a reasonable appeal
against the notice specified at Point b of this Clause;
d/
Notifying the acceptance of the application, requesting the registrant to
supply samples of the variety to the testing institution for performance of
technical tests and procedures specified in Article 178 of this Law where such
application is valid or where the registrant has properly corrected the errors
or made a justifiable opposition to the notice specified at Point b of this
Clause.
Article
177.- Publication of protection registration
applications
1. Where
an application is accepted as valid, the concerned state management agency in
charge of rights to plant varieties shall publish such valid application in a
specialized magazine on plant varieties within 90 days from the date of
application acceptance.
2.
Published contents of an application include the serial number and filing date
of the application, the representative agent (if any), the registrant, the
owner, the denomination of the plant variety, the name of the plant species,
the date on which the application is accepted as valid.
Article
178.- Substantive examination of protection
registration applications
1. The
state management agency in charge of rights to plant varieties shall conduct
the substantive examination of applications already accepted as valid. The
examination covers:
a/
Examination of novelty and proper denominations of plant varieties.
b/
Examination of results of technical tests of plant varieties.
2.
Technical test means experiments conducted to determine the distinctness,
uniformity and stability of varieties.
Technical
test shall be conducted by the competent state agency or organizations or
individuals that are capable of conducting the test of plant varieties in
compliance with regulations of the Agriculture and Rural Development Ministry.
The state
management agency in charge of rights to plant varieties may use previously
obtained technical test results.
3. The
time limit for examination of technical test results shall be 90 days from the
date of receipt of such technical test results.
Article
179.- Modification and supplementation of protection
registration applications
1. Before
the concerned state management agency in charge of rights to plant varieties
notifies the refusal to grant a plant variety protection certificate or the
decision on grant of a plant variety protection certificate, the registrant
shall have the following rights:
a/ To
modify or supplement the protection registration application without changing
its nature;
b/ To
request the recording of changes in his/her name or address.
c/ To
request the recording of change of the registrant due to the application assignment
under a contract or as a result of inheritance or bequest.
2. The
requester for carrying out of procedures specified in Clause 1 of this Article
must pay fees and charges.
Article
180.- Withdrawal of protection registration
applications
1. Before
the concerned state management agency in charge of rights to plant varieties
decides or refuses to grant a plant variety protection certificate, the
registrant may withdraw the protection registration application. A request for application withdrawal must be made
in writing.
2. From
the moment the registrant withdraws the protection registration application,
all subsequent procedures related to such application shall be stopped; fee and
charge amounts already paid for procedures which have not yet been carried out
shall be refunded at the request of the registrant.
Article
181.- Opinions of the third party on the grant of
plant variety protection certificates
From the
date of publication of a plant variety protection registration application in a
specialized magazine on plant varieties until before a decision on grant of a
plant variety protection certificate is issued, any third party can give
opinions challenging the grant of such plant variety protection certificate to
the state management agency in charge of rights to plant varieties. Such
opinions must be made in writing and accompanied by documents and evidence to
support them.
Article
182.- Refusal to grant plant variety protection
certificates
A
protection registration application shall be rejected and the grant of a plant
variety protection certificate refused where the concerned plant variety fails
to satisfy the conditions specified in Articles 176 and 178 of this Law. In
case of refusal to grant a plant variety protection certificate, the state management
agency in charge of rights to plant varieties shall carry out the following
procedures:
1.
Notifying the intended refusal to grant a plant variety protection certificate,
clearly stating the reasons therefor and setting a time limit for the
registrant to correct errors or make oppositions to the intended refusal;
2.
Notifying the refusal to grant a plant variety protection certificate where the
registrant fails to correct errors and makes no opposition to the intended
refusal mentioned in Clause 1 of this Article;
3.
Carrying out the procedures specified in Article 183 of this Law where the
registrant has corrected errors or made a justifiable opposition to the
intended refusal mentioned in Clause 1 of this Article.
Article
183.- Grant of plant variety protection certificates
Where a
protection registration application is not rejected as specified in Article 182
of this Law and the registrant pays the fee, the state management agency in
charge of rights to plant varieties shall decide to grant a plant variety
protection certificate and record it in the national register of protected
plant varieties.
Article
184.- Complaints about the grant or the refusal to
grant plant variety protection certificates
1. The
registrant and any third party may complain about the decision or the refusal
to grant a plant variety protection certificate.
2. The
settlement of complaints about decisions or refusals to grant plant variety
protection certificates shall comply with the provisions of law on complaints
and denunciations.
Chapter
XIV
CONTENTS
OF AND LIMITATIONS ON RIGHTS TO PLANT VARIETIES
Section 1.
CONTENTS OF RIGHTS TO PLANT VARIETIES
Article
185.- Rights of plant variety breeders
The
breeder of a plant variety shall have the following rights:
1. To have his/her name as a breeder recorded in
the plant variety protection certificate, the national register of protected
plant varieties, and published documents on plant varieties;
2. To
receive remunerations according to the provisions of Point a, Clause 1, Article
191 of this Law.
Article
186.- Rights of protection certificate holders
1. A
protection certificate holder shall have the right to exercise or authorize
others to exercise the following rights to reproductive materials of a
protected plant variety:
a/ To
conduct the 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;
g/ To
stock them for the purposes specified at Points a, b, c, d, e and f of this
Clause.
2. To
prevent others from using the plant variety according to the provisions of
Article 188 of this Law.
3. To pass
by inheritance or bequest or transfer the rights to the plant variety according
to the provisions of Chapter XV of this Law.
Article
187.- Extension of rights of protection certificate
holders
Rights of
a protection certificate holder shall be extended to the following plant
varieties:
1. Plant
varieties which originate from the protected plant variety, except where such
protected plant variety itself originates from another protected plant variety;
A plant
variety is deemed to originate from a protected plant variety if such plant
variety still retains the expression of the essential characteristics resulting
from the genotype or combination of genotypes of the protected variety, except
for differences resulting from impacts on the protected variety;
2. Plant
varieties which are not definitely distinct from the protected plant variety;
3. Plant
varieties, the production of which requires the repeated use of protected plant
variety.
Article
188.- Acts of infringing upon rights to plant
varieties
The
following acts shall be regarded as infringements of rights of a protection
certificate holder:
1.
Exploiting or using rights of such protection certificate holder without
his/her permission;
2. Using a
plant variety denomination which is identical or similar to a denomination
protected for a plant variety of the same species or a species closely linked
to the protected plant variety.
3. Using a
protected plant variety without paying the remuneration according to the
provisions of Article 189 of this Law.
Article
189.- Provisional rights to plant varieties
1.
Provisional rights to a plant variety are rights of the protection registrant
of such plant variety, which arise from the date of publication of the
protection registration application till the date of grant of a plant variety
protection certificate. Where a plant variety protection certificate is not
granted for such plant variety, the protection registrant shall not have these
provisional rights.
2. Where
the registrant is aware of the fact that the plant variety registered for
protection is being used by another person for commercial purposes, the plant
variety protection registrant may notify in writing that user of the fact that
a registration application for protection of the plant variety has been filed,
clearly specifying the filing date and the date of publication of such
protection registration application, so that the latter shall stop or continue
using the plant variety.
3. Where
the user already notified according to the provisions of Clause 2 of this
Article continues using the plant variety, the plant variety protection
certificate holder may, upon the grant of the certificate, request such plant
variety user to pay a compensation amount equivalent to the licensing price of
such plant variety within the corresponding use scope and duration.
Section 2.
LIMITATIONS ON RIGHTS TO PLANT VARIETIES
Article 190.- Limitations on rights of plant variety protection
certificate holders
1. The
following acts shall not be regarded as infringements of rights to protected
plant varieties:
a/
Using plant varieties for personal and non-commercial purposes;
b/
Using plant varieties for crossbreeding for scientific research purposes;
c/
Using plant varieties to create new plant varieties distinct from the protected
plant varieties;
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 shall not be applicable to acts related to materials of
protected plant varieties which have been sold or otherwise brought to the
domestic or overseas markets by protection certificate holders or their
licensees, except for the following acts:
a/ Acts
relating to further propagation of such plant varieties;
b/ Acts
relating to export of reproductive materials of such plant varieties to
countries where the genus or species of such plant varieties are not protected,
except where such materials are exported for consumption purpose;
Article
191.- Obligations of protection certificate holders
and breeders of plant varieties
1.
Protection certificate holders shall have the following obligations:
a/ To pay
remunerations to breeders of plant varieties as agreed upon; in the absence of
such agreement, the remuneration level must comply with the provisions of law;
b/ To
pay the fee for maintenance of validity of plant variety protection
certificates according to regulations.
c/ To
preserve protected plant varieties, supply reproductive materials of protected
plant varieties to the state management agency in charge of rights to plant
varieties, and maintain the stability of protected plant varieties according to
regulations.
2.
Breeders of plant varieties shall be obliged to help protection certificate
holders maintain
reproductive materials of protected plant varieties.
Chapter XV
TRANSFER
OF RIGHTS TO PLANT VARIETIES
Article
192.- Licensing of plant varieties
1.
Licensing of a plant variety means the permission of the protection certificate
holder for another person to conduct one or several acts of his/her right to
use the plant variety.
2. Where
the right to use a plant variety is under co-ownership, the licensing of such
plant variety to another person must be consented by
all co-owners.
3. The
licensing of a plant variety must be effected in the form of a written
contract.
4. A plant
variety licensing contract must not contain terms which unreasonably restrict
rights of the licensee, particularly restrictions neither deriving from nor
aimed at protecting rights of the licensor to the licensed plant variety.
Article
193.- Rights of parties to a licensing contract
1. The
licensor may or may not permit the licensee to sublicense a third party.
2. The
licensee shall have the following rights:
a/ To
license the use right to a third party if it is so permitted by the licensor;
b/ To
request the licensor to take necessary and appropriate measures against any
infringements by a third party causing damage to the licensee;
c/ To take
necessary measures to prevent a third party’s infringements if within a time
limit of 3 months from the date of receipt of the request mentioned at Point b
of this Clause, the licensor fails to act as requested.
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 such plant variety to the
assignee. The assignee shall become the plant variety protection certificate
holder from the date of registration of the assignment contract with the state
management agency in charge of rights to plant varieties according to
procedures specified by law.
2. Where
rights to a plant variety are under joint ownership, the assignment of such
rights to another person must be consented by all
co-owners.
3. The
assignment of rights to a plant variety must be effected in the form of written
contract.
Article
195.- Bases and conditions for compulsory licensing of
plant varieties
1. In the
following cases, the rights to use a plant variety shall be licensed to another
organization or individuals under a decision of the competent state agency
defined in Clause 1, Article 196 of this Law without permission of the
protection certificate holder or his/her exclusive licensee (hereinafter
referred to as the holder of the exclusive right to use a plant variety):
a/ The use
of such plant variety is for the public interest and non-commercial purposes,
in service of national defense, security, food security and nutrition for the
people or to meet other urgent social needs;
b/ Persons
having demand and capacity to use such plant variety fail to reach agreement
with the holder of the exclusive right to use such plant variety on the entry
into a license contract though they have made best efforts within a reasonable
period of time to negotiate for satisfactory prices and commercial conditions;
c/ The
holder of the exclusive right to use such plant variety is considered having
performed anti-competition practices prohibited according to the provisions of
competition law.
2. The
holder of the exclusive right to use a plant variety may request the termination
of the use right when the bases for licensing provided for in Clause 1 of this
Article cease to exist and are unlikely to recur, provided that such use right
termination is not prejudicial to the licensee.
3. The
right to use a plant variety licensed under a decision of the competent state
agency must satisfy the following conditions:
a/ Such
licensed use right is non-exclusive;
b/ Such
licensed use right is limited within a scope and duration sufficient to attain
the licensing objectives, and largely for the domestic market, except for the
cases specified at Point c, Clause 1 of this Article;
c/ The
licensee must not assign the use right to another person, except where the
assignment is made together with the transfer of his/her business establishment,
and must not sub-license to others;
d/ The
licensee must pay an adequate compensation to the holder of exclusive right to
use the plant variety, taking into account the economic value of such use right
in each specific case and in compliance with the compensation rate bracket
promulgated by the Government;
4. The
Government shall specify cases of compulsory licensing of plant varieties and
the compensation rate bracket mentioned at Point d, Clause 3 of this Article.
Article
196.- Competence and procedures for licensing of plant
varieties under compulsory decisions
1. The
Agriculture and Rural Development Ministry shall issue decisions on licensing
of plant varieties in the fields under its state management on the basis of
considering licensing requests for the cases specified in Clause 1, Article 195
of this Law.
Ministries
and ministerial-level agencies shall issue decisions on licensing of plant
varieties in the fields under their state management on the basis of consulting
opinions of the Agriculture and Rural Development Ministry for the cases
specified in Clause 1, Article 195 of this Law.
2. Plant
variety licensing decisions must set the use scope and conditions in compliance
with the provisions of Clause 3, Article 195 of this Law.
3. The
state agency competent to decide on licensing of plant varieties must promptly
notify holders of the exclusive right to use such plant varieties of such
decisions.
4.
Decisions on licensing of plant varieties or refusal to license plant varieties
may be complained about or subject to lawsuits according to the provisions of
law.
5. The
Government shall specify procedures for licensing of plant varieties mentioned
in this Article.
Article
197.- Rights of protection certificate holders in case
of compulsory licensing of plant varieties
Protection
certificate holders subject to compulsorily licensing of plant varieties shall
have the following rights:
1. To
receive compensations corresponding to the economic value of the licensed use
right or equivalent to the licensing price under contracts with corresponding
scope and term;
2. To
request the state management agency in charge of rights to plant varieties to
amend, terminate validity or invalidate of the compulsory licensing when the
conditions for such compulsory licensing no longer exist and such amendment,
termination of validity or invalidation does not cause damage to compulsory
licensees.
Part Five
PROTECTION
OF INTELLECTUAL PROPERTY RIGHTS
Chapter
XVI
GENERAL
PROVISIONS ON PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
Article
198.- Right to self-protection
1.
Intellectual property right holders shall have the right to apply the following
measures to protect their intellectual property rights:
a/
Applying technological measures to prevent acts of infringing upon intellectual
property rights;
b/
Requesting organizations or individuals that commit acts of infringing upon
intellectual property rights to terminate their infringing acts, make public
apologies or rectifications and pay damages;
c/
Requesting competent state agencies to handle acts of infringing upon
intellectual property rights according to the provisions of this Law and other
relevant provisions of law;
d/
Initiating lawsuits at courts or arbitration centers to protect their
legitimate rights and interests.
2.
Organizations and individuals that suffer from damage caused by acts of
infringing upon intellectual property rights or discover acts of infringing
upon intellectual property rights which cause damage to consumers or society
shall have the right to request competent state agencies to handle such acts
according to the provisions of this Law and other relevant provisions of law.
3.
Organizations and individuals that suffer from damage or are likely to suffer
from damage caused by acts of unfair competition shall have the right to
request competent state agencies to apply the civil remedies provided for in
Article 202 of this Law and the administrative remedies provided for by
competition law.
Article
199.- Remedies against acts of infringing upon
intellectual property rights
1.
Organizations and individuals that commit acts of infringing upon intellectual
property rights of other organizations and individuals shall, depending on the
nature and seriousness of such infringements, be handled with civil, administrative
or criminal remedies.
2. In case
of necessity, competent state agencies may apply provisional urgent measures,
measures to control intellectual property-related imports and exports, or
measures to prevent and secure the administrative sanctioning according to the
provisions of this Law and other relevant provisions of law.
Article 200.-
Competence to handle acts of infringing upon intellectual property rights
1. Courts,
inspectorates, market management offices, custom offices, police offices and
People’s Committees of all levels, within the ambit of their tasks and powers,
are competent to handle acts of infringing upon intellectual property
rights.
2. The
application of civil remedies or criminal remedies shall fall within the
competence of courts. In case of necessity, courts may apply provisional urgent
measures provided for by law.
3. The
application of administrative remedies shall fall under the competence of
inspectorates, police offices, market management offices, custom offices and People’s
Committee of all levels. In case of necessity, these agencies may apply
measures to prevent and secure the administrative sanctioning provided for by
law.
4. The
application of measures to control intellectual property-related imports and/or
exports shall fall under the competence of custom offices.
Article
201.- Intellectual property assessment
1. Intellectual property assessment means the
use by competent organizations or individuals of their professional knowledge
and expertise to make assessment of and conclusion on matters related to
intellectual property right infringement cases.
2. State
agencies competent to handle acts of infringing upon intellectual property
rights shall have the right to ask for intellectual property assessment while
handling cases or matters they have accepted.
3.
Intellectual property right holders and other related organizations and
individuals shall have the right to request intellectual property assessment to
protect their legitimate rights and interests.
4. The Government shall specify intellectual
property assessment.
Chapter
XVII
HANDLING
OF INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS
WITH CIVIL REMEDIES
Article
202.- Civil remedies
Courts
shall apply the following civil remedies in handling organizations and
individuals that have committed acts of infringing upon intellectual property
rights:
1.
Compelling the termination of infringing acts;
2.
Compelling the public apology and rectification;
3.
Compelling the performance of civil obligations;
4.
Compelling the payment of damages;
5.
Compelling destruction, distribution or use for non-commercial purposes of
goods, raw materials, materials and means used largely for the production or
trading of intellectual property right-infringing goods, provided that such destruction,
distribution or use does not affect the exploitation of rights by intellectual
property right holders.
Article
203.- Right and burden of proof of involved parties
1. The
plaintiff and the defendant in a lawsuit against intellectual property right
infringement shall enjoy the right and bear the burden of proof provided for in
Article 79 of the Civil Procedure Code and this Article.
2. The
plaintiff shall prove that he/she is the intellectual property right holder
with one of the following evidence:
a/ Copies
of the copyright registration certificate, related right registration
certificate or protection title; or an extract of the national register of
copyright and related rights, the national register of industrial property or
the national register of protected plant varieties;
b/
Necessary evidence proving the basis for establishment of copyright or related
rights in case of absence of a copyright registration certificate, related
right registration certificate; necessary evidence proving rights to business
secrets, trade names or well-known marks;
c/
Copies of license contracts for intellectual property objects where the use
right is licensed under contracts.
3. The
plaintiff shall have to produce evidence of acts of infringing upon
intellectual property rights or acts of unfair competition.
4. In a
lawsuit against an infringement of the right to an invention which is a
production process, the defendant shall have to prove that his/her products are
produced by a process other than the protected process in the following cases:
a/ The
product made by the protected process is new;
b/ The
product made by the protected process is not new, but the invention owner
believes that the product of the defendant is made by the protected process and
fails to identify the process used by the defendant in spite of application of
appropriate measures.
5. Where a
party to a lawsuit against an infringement of intellectual property rights can
prove that appropriate evidence proving his/her claims is under the control of
the other party and therefore inaccessible, the former shall have the right to
request the court to compel the latter to produce such evidence.
6. When
making a claim for compensation for damage, the plaintiff must prove his/her
actual damage and specify the basis for determining compensation for damage
according to the provisions of Article 205 of this Law.
Article
204.- Principles of determination of damage caused by
infringements of intellectual property rights
1. Damage
caused by acts of infringing upon industrial property rights include:
a/
Material damage, including property losses, decreases in income and profit,
loss of business opportunities, reasonable expenses for prevention and
remedying of such damage;
b/
Spiritual damage, including damage to honor, dignity, prestige, reputation and
other spiritual losses caused to authors of literary, artistic and scientific
works; to performers; to authors of inventions, industrial designs,
layout-designs; and breeders of plant varieties.
2. The
extent of damage shall be determined on the basis of actual losses suffered by
intellectual property right holders due to acts of infringing upon intellectual
property rights.
Article
205.- Bases for determination of compensations for
damage caused by infringements of intellectual property rights
1. Where
the plaintiff can prove that an act of infringing upon intellectual property
rights has caused material damage to him/her, he/she shall have the right to
request the court to decide on the compensation level on one of the following
bases:
a/ Total
material damage calculated in an amount of money plus profit gained by the
defendant as a result of an act of infringing upon intellectual property rights
where the reduced profit amount of the plaintiff has not yet been calculated
into such total material damage;
b/ The
price of the licensing of an intellectual property object with the presumption
that the defendant has been licensed by the plaintiff to use that object under
a license contract within a scope corresponding to the committed infringing
act;
c/ Where
it is impossible to determine the level of compensation for material damage on
the bases specified at Points a and b of this Clause, such compensation level
shall be set by the court, depending on the damage extent, but must not exceed
VND 500 million.
2. Where
the plaintiff can prove that an act of infringing upon intellectual property
rights has caused spiritual damage to him/her, he/she shall have the right to
request the court to decide on the compensation level ranging from VND 5
million to VND 50 million, depending on the damage extent.
3. In
addition to the damage compensation defined in Clauses 1 and 2 of this Article,
industrial property right holders shall also have the right to request the
court to compel organizations or individuals that have committed acts of
infringing upon industrial property rights to pay reasonable costs of hiring
attorneys.
Article
206.- Right to request the court to apply provisional
urgent measures
1. Upon or
after the initiation of a lawsuit, an intellectual property right holder shall
have the right to request the court to apply provisional measures in the
following cases:
a/
There exists a danger of irreparable damage to such intellectual property right
holder;
b/
Goods suspected of infringing upon intellectual property rights or evidence
related to the act of infringing upon industrial property rights are likely to
be dispersed or destroyed unless they are protected in time.
2. The
court shall decide to apply provisional urgent measures at the request of the
industrial property right holder defined in Clause 1 of this Article before
listening to the party subject to such measures.
Article
207.- Provisional urgent measures
1. The
following provisional urgent measures shall be applied to goods suspected of
infringing upon intellectual property rights or to raw materials, materials or
means of production or trading of such goods:
a/
Seizure;
b/
Distraint;
c/
Sealing; ban from alteration of original state; ban from movement;
d/ Ban
from ownership transfer.
2. Other
provisional urgent measures shall be applied according to the provisions of the
Civil Procedure Code.
Article
208.- Obligations of persons requesting the
application of provisional urgent measures
1. Persons
requesting the application of provisional urgent measures are obliged to prove
their right to request provided for in Clause 1, Article 206 of this Law with
documents and evidence specified in Clause 2, Article 203 of this Law.
2. Persons
requesting the application of provisional urgent measures are obliged to pay
compensations for damage caused to persons subject to such measures in cases
where the latter are found having not infringed upon industrial property
rights. To secure the performance of this obligation, a person requesting the
application of provisional urgent measures shall have to deposit a security in
one of the following forms:
a/ A sum
of money equal to 20% of the value of the goods subject to the application of
provisional urgent measures, or at least VND 20 million where it is impossible
to value such goods;
b/ A
guarantee deed issued by a bank or another credit institution.
Article
209.- Cancellation of the application of provisional
urgent measures
1. The
court shall issue decisions on cancellation of provisional urgent measures
already applied in the cases specified in Clause 1, Article 122 of the Civil
Procedure Code or in cases where the provisional urgent measure debtor can
prove that the application of provisional urgent measures is not well grounded .
2. In case
of cancellation of a provisional urgent measure, the court shall consider the
refund to the person requesting the application of such provisional urgent
measure of the security defined in Clause 2, Article 208 of this Law. Where a
request for the application of a provisional urgent measure is not well
grounded, thus causing damage to the provisional urgent measure debtor, the
court shall compel the requester to pay compensation for the damage.
Article 210.-
Competence and procedures for application of provisional urgent measures
Competence
and procedures for application of provisional urgent measures shall comply with
the provisions of Chapter VIII, Part One of the Civil Procedure Code.
Chapter
XVIII
HANDLING
OF INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS WITH ADMINISTRATIVE AND
CRIMINAL REMEDIES; CONTROL OF INTELLECTUAL PROPERTY-RELATED IMPORTS AND/OR
EXPORTS
Section 1.
HANDLING OF INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS WITH ADMINISTRATIVE
AND CRIMINAL REMEDIES
Article 211.- Acts of
infringing upon industrial property rights which shall be administratively
sanctioned
1. The
following acts of infringing upon industrial property rights shall be
administratively sanctioned:
a/
Committing an act of infringing upon intellectual property rights which causes
damage to consumers or society;
b/ Failing
to terminate an act of infringing upon intellectual property rights though the
intellectual property right holder has issued a written notice requesting the
termination of such act;
c/
Producing, importing, transporting or trading in intellectual property
counterfeit goods defined in Article 213 of this Law or assigning others to do
so;
d/
Producing, importing, transporting or trading in articles bearing a mark or a
geographical indication that is identical or confusingly similar to a protected
mark or geographical indication or assigning others to do so.
2. The
Government shall specify acts of infringing upon intellectual property rights
which shall be administratively sanctioned, sanctioning forms and levels, and
procedures for sanctioning such acts.
3.
Organizations and individuals that commit acts of unfair competition in
intellectual property shall be sanctioned for administrative violations
according to the provisions of competition law.
Article 212.- Acts of
infringing upon industrial property rights which shall be criminally handled
Individuals
who commit acts of infringing upon intellectual property rights involving
elements which constitute a crime shall be examined for penal liability according
to the provisions of criminal law.
Article 213.-
Intellectual property counterfeit goods
1.
Intellectual property counterfeit goods referred to in this Law include goods
bearing counterfeit marks and goods bearing counterfeit geographical
indications (hereinafter referred to as counterfeit mark goods) defined in
Clause 2 of this Article and pirated goods defined in Clause 3 of this Article.
2.
Counterfeit mark goods are goods or their packages bearing marks or signs which
are identical with or indistinguishable from marks or geographical indications
currently protected for those very goods without permission of mark owners or
organizations managing such geographical indications.
3. Pirated
goods are copies made without the permission of copyright holders or related
right holders.
Article
214.- Forms of administrative sanctions and
consequence 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 subject to one of the following
principal sanctions:
a/
Caution;
b/
Monetary fine.
2.
Depending on the nature and seriousness of their infringements, intellectual
property rights-infringing organizations or individuals shall also be subject
to one of the following additional sanctions:
a/
Confiscation of intellectual property counterfeit goods, raw materials,
materials and means used mainly for production or trading of such intellectual
property counterfeit goods;
b/
Suspension of business activities in domains where infringements have been
committed for a definite time.
3. In
addition to the sanctions specified in Clauses 1 and 2 of this Article,
intellectual property rights-infringing organizations and individuals shall
also be subject to one or several of the following consequence remedies:
a/
Compelled destruction or distribution or use for non-commercial purposes of
intellectual property counterfeit goods as well as raw materials, materials and
means used mainly for production or trading of such intellectual property
counterfeit goods, provided that such destruction, distribution or use does not
affect the exploitation of rights by intellectual property right holders;
b/
Compelled transportation out of the Vietnamese territory of transit goods
infringing upon intellectual property rights or compelled re-export of
intellectual property counterfeit goods, as well as imported means, raw
materials and materials used mainly for production or trading of such intellectual
property counterfeit goods, after infringing elements are removed from such
goods.
4. The
level of monetary fine specified at Point b, Clause 1 of this Article shall be
set at least equal to the value of detected infringing goods but must not
exceed five times such value.
The
Government shall specify method of determination of value of infringing goods.
Article
215.- Preventive measures to secure the administrative
sanctioning
1. In the
following cases, organizations and individuals shall have the right to request
competent agencies to apply preventive measures to secure the administrative
sanctioning specified in Clause 2 of this Article:
a/ Acts
of infringing upon intellectual property rights are likely to cause serious
damage to consumers or society;
b/
Infringement material evidence is likely to be dispersed or infringing
individuals or organizations show signs of shirking their liabilities;
c/ To
secure the enforcement of decisions on sanctioning of administrative
violations.
2.
Preventive measures to secure the administrative sanctioning applied according
to administrative procedures to acts of infringing upon intellectual property
rights include:
a/
Temporary custody of persons;
b/
Temporary custody of infringing goods, material evidence and means;
c/ Body
search;
d/
Search of means of transport and objects; search of places where infringing
goods, material evidence and means are hidden;
e/
Other administrative preventive measures according to the provisions of law on
handling of administrative violations.
Section 2.
CONTROL OF INTELLECTUAL PROPERTY-RELATED IMPORTS AND/OR EXPORTS
Article
216.- Measures to control intellectual
property-related imports and/or exports
1.
Measures to control intellectual property-related imports and exports include:
a/
Suspension of customs procedures for goods suspected of infringing upon
intellectual property rights;
b/
Inspection and supervision to detect goods showing signs of intellectual
property right infringement.
2.
Suspension of customs procedures for goods suspected of infringing upon
intellectual property rights means a measure taken at the request of
intellectual property right holders in order to collect information and
evidence on goods lots in question so that the intellectual property right
holders can exercise the right to request the handling of infringing acts and
request the application of provisional urgent measures or preventive measures
to secure the administrative sanctioning.
3.
Inspection and supervision to detect goods showing signs of infringement of
intellectual property rights means a measure taken at the request of intellectual
property right holders in order to collect information so that they can
exercise the right to request the suspension of customs procedures.
4. In the
course of application of the measures specified in Clauses 2 and 3 of this
Article, if any intellectual property counterfeit goods are detected according
to Article 213 of this Law, customs offices shall have the right and
responsibility to apply administrative remedies to handle them according to the
provisions of Article 214 and Article 215 of this Law.
Article
217.- Obligations of persons requesting the
application of measures to control intellectual property-related imports and/or
exports
1. Persons
requesting the application of measure to control intellectual property-related
imports and/or exports shall have the following obligations:
a/ To
prove that they are intellectual property right holders by producing documents
and evidence specified in Clause 2, Article 203 of this Law;
b/ To
supply information sufficient to identify goods suspected of infringing upon
intellectual property rights or to detect goods showing signs of intellectual
property rights infringement;
c/ To
file written requests to customs offices and pay fees and charges prescribed by
law;
d/ To pay
damages and other expenses incurred to persons subject to control measures in
cases where the controlled goods are found having not infringed upon industrial
property rights.
2. To
secure the performance of the obligations specified at Point d, Clause 1 of
this Article, a person requesting the application of the measure of suspension
of customs procedures shall have to deposit a security in one of the following
forms:
a/ A sum
of money equal to 20% of the value of the goods lot subject to the application
of the measure of suspension of customs procedures, or at least VND 20 million
where it is impossible to value such goods lot;
b/ A
guarantee deed issued by a bank or another credit institution.
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 shall be 10 working days from the
date of issuance of the suspension decision. Where the customs procedure
suspension requester has justifiable reasons, this duration may be prolonged
but must not exceed 20 working days, provided that the requester deposits the
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
persons requesting the suspension of customs procedures do not initiate civil
lawsuits and customs offices do not decide to accept the cases for handling of
administrative violations of the goods lot exporters or importers according to
administrative procedures, customs offices shall have the following
responsibilities:
a/ To
continue carrying out customs procedures for such goods lots;
b/ To
compel persons requesting the suspension of customs procedures to compensate
all the damage caused to the goods lot owners due to unreasonable requests for
the suspension of customs procedures, and to pay expenses for warehousing and
preservation of goods as well as other expenses incurred by customs offices and
other related agencies, organizations and individuals according to the
provisions of law on customs;
c/ To
refund to persons requesting the suspension of customs procedures the remaining
security amount after the obligation of paying compensations and expenses
specified at Point b of this Clause is fulfilled.
Article
219.- Inspection and supervision to detect goods
showing signs of intellectual property right infringement
Where an
intellectual property right holder requests the inspection and supervision to
detect goods showing signs of intellectual property right infringement, the
customs office shall, when detecting such a goods lot, promptly notify the
requester thereof. Within three working days from the date of notification, if
such requester does not request the suspension of customs procedures with
regard to the detected goods lot and the customs office does not decide to
consider the application of the administrative remedies specified in Articles
214 and 215 of this Law, the customs office shall have to continue carrying out
customs procedures for such goods lot.
Part Six
IMPLEMENTATION
PROVISIONS
Article 220.-
Transitional provisions
1.
Copyright and related rights protected under the legal documents effective
before the effective date of this Law shall continue to be protected under this
Law if they remain in term of protection on 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, shall continue to be processed
according to the provisions of the legal documents effective at the time of
filing of such applications.
3. All
rights and obligations conferred by protection titles granted according to the
provisions of law effective before the effective date of this Law and
procedures for maintenance, renewal, modification, licensing, ownership
assignment, settlement of disputes relating to these protection titles shall be
subject to the provisions of this Law, except for the grounds for invalidation
of protection titles which shall only be subject to the provisions of legal
documents effective at the time of grant of such protection titles.
4. Trade
secrets and trade names which 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 rights against industrial property-related unfair
competition shall 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, shall only be
protected after their registration according to the provisions of this Law.
Article
221.- Implementation effect
This Law
takes effect as from July 1, 2006.
Article
222.- Implementation guidance
The
Government and the Supreme People’s Court shall detail and guide the
implementation of this Law.
This Law
was passed on November 29, 2005, by the XIth National Assembly of
the Socialist Republic of Vietnam at its 8th session.
Chairman
of the National Assembly
NGUYEN VAN AN