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Saturday, December 7, 2019

Vietnamese legislation on industrial property

Updated: 10:37’ - 01/04/2011

Pham Diem
State and Law Institute of Vietnam

 

Industrial property constitutes one of the important domains of intellectual property. Formerly, as Vietnam developed a purely agricultural and self-sufficient economy without international economic integration, the industrial property issue did not appear in practical life and was not governed by law.

Once Vietnam embarked on the path of “doi moi dat nuoc” (national renewal) about two decades ago, shifting from a centralized planned economy subsidized by the State to a market economy, conducting national industrialization and modernization and adopting an open-door policy to attract foreign investment and technologies, industrial property and State protection of industrial property have constituted an important factor in national development and assumed importance in perception and legislation.

At present, as Vietnam is conducting negotiations with different partners for early accession to the World Trade Organization (WTO), the protection of industrial property rights in Vietnam has become a pressing issue and one of the prerequisites required by partners in the course of negotiations.

During the 1980s, the Vietnamese government promulgated a number of legal documents on industrial property rights, including the following noteworthy ones:

Decree No. 197/HDBT of December 14, 1982, on trademarks.

Decree No. 85/HDBT of May 13, 1985, on industrial designs.

Decree No. 200/HDBT of December 28, 1988, on utility solutions.

Decree No. 201/HDBT of December 28, 1988, on purchase of patents for innovation, utility solution, industrial designs, trademarks and technical know-how.

Generally, the regulations on protection of industrial property during this period were small in quantity and all issued by the executive body. They remained scattered and uncoordinated, failing to cover many aspects of industrial property protection.

On January 28, 1989, for the first time, Vietnam’s State Council (now the National Assembly Standing Committee) adopted the Ordinance on Protection of Industrial Property Rights. It was the first legal document on industrial property rights promulgated by a legislative body, thus marking an important step in the development of the system of legislation on industrial property in Vietnam.

In the course of improving legislation on industrial property rights, the emergence of the Civil Code in 1995 constituted a landmark. It devoted a whole chapter to industrial property rights in its Part Six on Intellectual Property Rights and Technology Transfer. To make specific the provisions on industrial property rights, the Government promulgated a number of documents such as Decree No. 63/CP of October 24, 1996, detailing industrial property and Decree No. 54/ND-CP of October 3, 2000, adding a number of protected industrial property objects.

The 1995 Civil Code has been in effect now for 10 years. Yet, in the present context of development of a market economy and international integration and cooperation, many of its provisions, including those on industrial property rights, prove to be no longer suitable. Therefore, at its ongoing session, the National Assembly has discussed and passed the revised Civil Code, which will take effect in January 2006. The emergence of the revised Civil Code marks an important step in developing civil legislation, including legislation on industrial property rights in Vietnam. Also at this session, National Assembly deputies have debated the intellectual property bill before voting to pass it into law.

Meanwhile, Vietnam has signed or acceded to different international treaties such as the 1883 Paris Convention for the Protection of Industrial Property, the 1891 Madrid Agreement on International Registration of Trademarks, the Vietnam-USA Bilateral Trade Agreement, etc.

Under the current law of Vietnam, the subjects of industrial property rights include authors and owners of industrial property objects. According to the existing Civil Code, authors are the persons who create intellectual products expressed in forms of invention, utility solution, industrial design; and co-authors are two or more persons who jointly created a work. Owners of industrial property objects include individuals, legal persons, and other subjects who are granted by competent state agencies or receive protection titles for inventions, utility solutions, industrial designs, and trademarks.

Regarding objects of industrial property rights, the current Civil Code provides that the State protects industrial property objects including inventions, utility solutions, industrial designs, trademarks, appellations of origin of goods and other objects as prescribed by law.

According to Article 782 of the Civil Code, “an invention is a technical solution which is new in comparison to the current technical level of the world, which is of a creative character and is applicable in various social and economic fields.” Under the Government’s Decree No. 63/CP of October 24, 1996, the following objects are not protected by the State as inventions:

Scientific schemes, principles and inventions;

Modes and systems of organizations and economic management;

Methods and systems of education and training;

Methods of training domestic animals;

Systems of language, systems of information and data classification;

Designs and diagrams on construction planning and schemes on territorial planning and zoning;

Solutions only to the outer appearance of products which are of aesthetic character only but not of technical character;

Signs, conventions, time tables, regulations and rules, and symbolic signs;

Computer software, integrated circuit layout designs, mathematic models, reference graphs, and the like;

Plant varieties and animal breeds; and,

Disease prevention, diagnosis and treatment methods.

According to Article 783 of the current Civil Code, “an utility solution is a technical solution which is new in comparison to the current technical level of the world and is applicable in various social and economic fields. The State shall encourage all activities pertaining to technical innovation and improvement and rationalization of production.”

Under Article 784 of the same Code, “an industrial design is the outer appearance of a product represented by lines, form and colors or the combination of such elements, which has new characteristics to the world and may serve as a model for the manufacture of industrial products or handicrafts.”

Protected industrial designs must be substantially distinctive from those described in applications for industrial design protection titles already submitted to competent agencies with earlier priority dates.

According to Article 785 of the current Civil Code, “trademarks are symbols which are used to distinguish goods or services of the same kind from different production and business establishments. A trademark may appear in the form of words, letters or images, or a combination of such elements in one or many colors.”

Meanwhile, the appellation of origin of goods is prescribed in Article 786 of the same Code as “the geographical name of the country or locality which serves to identify the origin of goods manufactured in that country or locality provided that these products have distinctive characteristics and quality based on the unique and advantageous geographical conditions including natural and human factors or the combination thereof.”

Under Decree No. 54/ND-CP of October 3. 2000, four more objects in the group of other objects provided by the 1995 Civil Code have been protected, including:

Business secrets;

Geographical indications;

Trade names; and,

The right to fight unfair competition related to industrial property.

According to current legislation, authors of industrial property rights are entitled to inscribe their names in the invention, utility solution or industrial design protection titles, to have the property rights, to receive remuneration and awards, and to request courts or competent state bodies to handle acts of infringing upon their copyrights.

Industrial property object owners have the rights to exclusively use their industrial property objects, to transfer ownership of industrial property objects to other persons, to request competent state bodies to compel violators of their ownership rights to stop their violating acts and pay damages, and to bequeath their industrial property objects.

Regarding the various types of protection titles and their validity, Government Decree No. 63-CP of October 24, 1996, provides in detail that:

Invention protection titles are invention patents, which are valid from the date of issuance to the end of 20 years counting from the date of filing a regular application.

Utility solution protection titles are utility solution patents, which are valid from the date of issuance to the end of 10 years counting from the date of filing a regular application.

Industrial design protection titles are industrial design protection patents which are valid from the date of issuance to the end of 5 years counting from the date of filing a regular application, and each may be extended twice for an additional period of 5 years.

Trademark protection titles are certificates of registered trademarks, which are valid from the date of issuance to the end of 10 years counting from the date of filing a regular application, and each can be extended many times for additional 10-year periods.

Appellation of origin of goods protection titles are certificates of the right to use the appellation of origin of goods which are valid from the date of issuance to the end of 10 years counting from the date of filing a regular application, and each can be extended many times for additional 10-year periods.-

 

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