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Official Gazette

Wednesday, September 20, 2017

Intellectual property institutions in Vietnamese law

Updated: 11:43’ - 24/01/2014

Pham Diem

Since Vietnam initiated the national renewal, shifting to the market economy, openness and international integration, the State has attached importance to the protection of intellectual property rights. Intellectual property law has gradually been institutionalized, modified, supplemented and completed.

In the first years of the national renewal process, intellectual property was primarily regulated by legal documents of executive agencies and ordinances of the National Assembly Standing Committee. They were series of decrees on industrial property and copyright, regulations on invention, utility solution, industrial design and trademark and an ordinance on the protection of industrial property rights, etc. The substantive development of intellectual property law in Vietnam is the promulgation of the 1995 Civil Code and, especially, the 2005 Law on Intellectual Property. The Civil Code has a separate part - Part Six - on Intellectual Property Rights and Technology Transfer. The 1995 Civil Code has been amended several times and its provisions on intellectual property rights have been amended most. The 2005 Law on Intellectual Property not only concretized these provisions of the Civil Code but also supplemented many provisions based on the reality of social life in Vietnam and the world at large. In 2009, many provisions in the Law on Intellectual Property were amended and supplemented.

In general, in Vietnam the intellectual property institution is regulated chiefly in the Law on Intellectual Property and the Civil Code, as well as the Penal Code, the Customs Law and the Law on Handling of Administrative Violations, which contain provisions on the protection of intellectual property rights. Furthermore, many governmental decrees and ministerial circulars have concretized and guided the implementation of the Law on Intellectual Property.

For intellectual property involving foreign elements, Vietnamese laws stipulate that in case treaties to which the Socialist Republic of Vietnam is a contracting party contain provisions different from those of these laws, the provisions of such treaties will apply. In the process of international integration, the Vietnamese State has concluded or acceded to most of treaties on intellectual property. They are multilateral treaties, namely the Berne Convention for the Protection of Literary and Artistic Works, the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks; and bilateral agreements such as the US-Vietnam Agreement on Providing Legal Protection for Copyright Owners, the ASEAN Framework Agreement on Intellectual Property Cooperation.

Under Vietnamese intellectual property law, the Vietnamese State recognizes and protects intellectual property rights of organizations and individuals on the basis of harmonizing benefits of intellectual property rights holders and public interests and does not protect intellectual property objects which are contrary to social ethics and public order and prejudicial to national defense and security. It also implements policies to encourage and promote creative activities and utilization of intellectual assets in order to contribute to the socio-economic development and the improvement of the people’s material and spiritual lives, provide financial supports for the receipt and exploitation of assigned intellectual property rights in the public interest, encourage organizations and individuals at home or abroad to fund creative activities and the protection of intellectual property rights. Priority will be given to investment in training state employees and other persons engaged in the protection of intellectual property rights. Resources in the society will be mobilized to invest in building capacity for the intellectual property rights protection system to meet the requirements of socio-economic development and international integration.

The state management of intellectual property covers the formulation and direction of the materialization of strategies and policies on protection of intellectual property rights, the promulgation and implementation of legal documents on intellectual property as well as the implementation of procedures related to the registration of intellectual property rights and grant of intellectual property rights protection certificates. The State also inspects and examines the observance of intellectual property law, the settlement of complaints and denunciations, and handling of violations of intellectual property law. It also encourages the education, communication and dissemination of intellectual property knowledge and law and international cooperation in intellectual property.

Under Vietnamese law, 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. Vietnam’s Law on Intellectual Property applies to Vietnamese organizations and individuals; and to foreign organizations and individuals that satisfy the conditions specified in this Law and treaties to which Vietnam is a contracting party.

Copyright and related rights

In Vietnam, subject matters of copyright include literary, artistic and scientific works while subject matters of related rights include performances, phonograms, video recordings, broadcasts and encrypted program-carrying satellite signals. The Law on Intellectual Property defines copyright as rights of organizations and individuals to works they have created or own, and copyright-related rights as rights of organizations and individuals to performances, phonograms, video recordings, broadcasts and encrypted program-carrying satellite signals.

Copyright and related rights whose holders are Vietnamese citizens and legal entities and that were made public and exercises in Vietnam shall be protected under Vietnamese laws. Copyright and related rights of foreigners and foreign entities will also be protected like those of Vietnamese citizens and legal entities.

The Law on Intellectual Property stipulates specific conditions for protection, contents of, limitations on and term of protection of and transfer of copyright and related rights, certificates of registered copyright of related rights, and copyright and related rights representation, consultancy and service organizations.

For foreigners and foreign entities’ products and works that were made public and used in Vietnam based on treaties to which Vietnam is a contracting party, the copyright and copyright-related right protection regime complies with such treaties.

Industrial property rights and rights to plant varieties

Under Vietnamese law, subject matters of industrial property rights include inventions, industrial designs, layout-designs of semiconductor integrated circuits, trade secrets, marks, trade names and geographical indications. Industrial property rights are defined as rights of organizations and individuals to inventions, industrial designs, layout-designs of semiconductor integrated circuits, marks, trade names, geographical indications and trade secrets they have created or own, and the right to repression of unfair competition. Subject matters of rights to plant varieties include reproductive materials (plants or parts of plants that can grow into new plants for breeding or cultivation) and harvest materials (plants or parts of plants harvested from the cultivation of reproductive materials). Rights to plant varieties are those of organizations and individuals to new plant varieties they have selected, created, discovered or inherited.

Vietnam’s Law on Intellectual Property provides conditions for protection of, establishment, contents of and limitations on, and transfer of industrial property rights and rights to plant varieties.

Industrial property rights and rights to plant varieties for foreigners and foreign entities in Vietnam are established and protected similarly for Vietnamese citizens and legal entities. Relevant treaties to which Vietnam is a contracting party are observed.

Protection of intellectual property rights

Vietnamese law stipulates the protection of intellectual property rights includes self-protection and handling by competent state agencies of infringements upon intellectual property rights.

  For self-protection, intellectual property right holders have the right to apply technological measures to prevent infringements, request infringers to terminate their infringements, make public apologies or rectifications and pay damages, request competent state agencies to handle infringements, and bring the cases to court or arbitration.

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 punish infringements upon intellectual property rights. The application of civil and criminal measures falls within the competence of courts, while the application of administrative sanctions falls under the competence of inspectorates, police offices, market management offices, custom offices and People’s Committee of all levels. Custom offices are competent to apply measures to control intellectual property-related imports and exports.

In general, Vietnamese law on intellectual property rights has been incrementally improved. The Vietnamese State has attached importance to the protection of intellectual property rights. Intellectual property right infringements have reduced. However, for various reasons, subjective and objective, these infringements remain complex. At present, the Vietnamese State considers protection of intellectual property rights as a national policy, thus contributing to the country’s socio-economic development and the attraction of foreign and domestic investments and technologies.

VNL_KH1 

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