Hanoi, November 29, 2005
LAW
ON INTELLECTUAL PROPERTY
National Assembly of the Socialist Republic of Vietnam Legislature XI, Session 8 (From 18 October until 29 November 2005)
Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam as amended by Resolution 51/2001/QH10 passed by Legislature X of the National Assembly at its 10th Session on 25 December 2001; This Law regulates intellectual property.
PART I
GENERAL PROVISIONS
Article 1. Governing scope
This Law regulates copyright, copyright related rights, industrial property rights and rights to plant varieties; and the protection of such rights.
Article 2. Applicable entities
This Law shall apply to Vietnamese organizations and individuals and to foreign organizations and individuals who satisfy the conditions stipulated in this Law and in any international treaty of which the Socialist Republic of Vietnam is a member.
Article 3. Subject matter of intellectual property rights
Article 4. Interpretation of terms
In this Law, the following terms shall be construed as follows:
Business area as stipulated in this clause means the geographical area in which a business entity has its partners, customers or reputation.
Article 5. Application of laws
Article 6. Grounds for the generation and establishment of intellectual property rights
(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 body to grant a protection title in accordance with the registration procedures stipulated in this Law or the recognition of international registration pursuant to an international treaty of which the Socialist Republic of Vietnam is a member. In the case of a well known mark, industrial property rights shall be established on the basis of use and shall not be dependent on 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 of the trade secret and maintaining confidentiality thereof;
(d) The right to prevent unfair competition shall be established on the basis of competitive activities in business.
Article 7. Limitations on intellectual property rights
Article 8. Policies of the State on intellectual property
Article 9. Right and responsibility of organizations and individuals in the protection of intellectual property rights
Organizations and individuals shall have the right to themselves take measures permitted by law to protect their intellectual property rights, and shall be obliged to respect the intellectual property rights of other organizations and individuals in accordance with the provisions of this Law and other relevant laws.
Article 10. Contents of State administration of intellectual property
Article 11. Responsibility for State administration of intellectual property
The Ministry of Culture and Information shall, within the scope of its duties and powers, carry out State administration of copyright and related rights.
The Ministry of Agriculture and Rural Development shall, within the scope of its duties and powers, carry out State administration of rights to plant varieties.
Article 12. intellectual property fees and charges
Organizations and individuals shall be required to pay fees and charges when carrying out procedures related to intellectual property rights in accordance with the provisions of this Law and other related laws.
PART II
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 with works which are protected by copyright
Article 14. Types of works which are protected by copyright
(a) Literary works, scientific works, textbooks, teaching courses and other works expressed in written language or other characters;
(b) Lectures, addresses and other speeches;
(c) Press works;
(d) Musical works;
(dd) Stage works;
(e) Cinematographic works and works created by a process analogous to cinematography (hereinafter all referred to as cinematographic works);
(g) Plastic art works and applied art works;
(h) Photographic works;
(i) Architectural works;
(k) Sketches, plans, maps and drawings related to topography or scientific works;
(l) Folklore and folk art works;
(m) Computer programs and data collections.
Article 15. Subject matter outside the category of copyright protection
Section 2. CONDITIONS FOR PROTECTION OF RELATED RIGHTS
Article 16. Organizations and individuals eligible for protection of related rights
Article 17. Subject matter of related rights eligible for protection
(a) They are made by Vietnamese citizens in Vietnam or abroad;
(b) They are made by foreigners in Vietnam;
(c) They are fixed on audio and visual fixation and protected pursuant to the provisions of article 30 of this Law;
(d) They have not yet been fixed on audio and visual fixation but have already been broadcast and are protected pursuant to the provisions of article 31 of this Law;
(dd) They are protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.
(a) It belongs to audio and visual fixation producers bearing Vietnamese nationality;
(b) It belongs to audio and visual fixation producers protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.
(a) They belong to broadcasting organizations bearing Vietnamese nationality;
(b) They belong to broadcasting organizations protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.
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 in works regulated in this Law shall comprise moral rights and economic rights.
Article 19. Moral rights
Moral rights [of authors] shall comprise the following rights:
Article 20. Economic rights
Article 21. Copyright in cinematographic works and dramatic works
Persons who act as directors, playwrights, choreographers, music composers, art designers, stage sound designers, lighting and art stage designers, stage props and technical effects designers, and persons engaged in other creative jobs in making stage works shall have the rights stipulated in clauses 1, 2 and 4 of article 19 of this Law and other rights as agreed.
Article 22. Copyright in computer programs and data collections
Computer programs shall be protected the same as literary works, irrespective of whether the computer programs are expressed in the form of source codes or machine codes.
Copyright protection of data collections shall not extend to protection of the data itself, and must not be prejudicial to copyright in the data itself.
Article 23. Copyright in folklore and folk art works
(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, sculpture, musical instruments, architectural models and other artistic expressions in any material form.
Article 24. Copyright in literary, artistic and scientific works
The Government shall issue specific regulations governing the protection of copyright in the literary, artistic and scientific works stipulated in article 14.1 of this Law.
Article 25. Cases when published works may be used without having to seek permission or pay royalties or remuneration
(a) Making one copy of the work of an author for scientific research or teaching purposes;
(b) Reasonable quoting from a work in order to comment on or illustrate one's own works, without misrepresenting the author's views;
(c) Quoting from a work in order to write an article published in a newspaper or periodical, in a radio or television broadcast or in a documentary, without misrepresenting the author's views;
(d) Quoting from a work in school or university for lecturing purposes without misrepresenting the author's views and not for commercial purposes;
(dd) Copying of a work by a library for archival and research purposes;
(e) Performing a stage work or other art work in mass cultural, communication or mobilization activities without collecting fees in any form;
(g) Audio-visual recording of a performance in order to report current events or for teaching purposes;
(h) Photographing or televising plastic art; or an architectural, photographic, or applied art work displayed at a public place in order to present images of such work;
(i) Transcribing a work into braille or into characters of other languages for the blind;
(k) Importing copies of another's work for personal use.
Article 26. Cases when published works may be used without having to seek permission but royalties or remuneration must be paid
Article 27. Term of copyright protection
(a) Cinematographic works, photographic works, stage works, applied art works and anonymous works shall have a term of protection of fifty (50) years as from the date of first publication. If a cinematographic work or stage work has not been published within fifty (50) years from the date of its formulation, the term of protection shall be calculated from the date of its formulation. When information on the author of an anonymous work appears, the term of protection of such work shall be calculated pursuant to sub-clause (b) below;
(b) Any work not stipulated in sub-clause (a) above shall be protected for the whole life of the author and for fifty (50) years after his or her death. In the case of a work of joint authors, the term of protection shall expire in the fiftieth year after the death of the last surviving co-author;
(c) The term of protection stipulated in sub-clauses (a) and (b) of this clause shall expire at 24:00 hours on 31 December of the year of expiration of the copyright protection term.
Article 28. Conduct constituting infringement of copyright
Section 2. CONTENTS OF, LIMITATIONS ON AND TERM OF PROTECTION OF RELATED RIGHTS
Article 29. Rights of performers
(a) To have the name acknowledged when performing, when distributing audio and visual fixation or when broadcasting performances;
(b) To protect the integrity of the imagery of the performance, and to prevent others from modifying, editing or distorting the work in any way prejudicial to the honour and reputation of the performer.
(a) To formulate a live performance on audio and visual fixation;
(b) To directly or indirectly reproduce a performance which has been formulated on audio and visual fixation;
(c) To broadcast or to communicate to the public in other ways an unformulated performance so that it may be accessed by the public, except where such performance is intended to be broadcast;
(d) To distribute to the public an original performance and copies thereof by sale, rental or distribution by whatever technical means which are accessible by the public.
Article 30. Rights of producers of audio and visual fixation
(a) To directly or indirectly copy their audio and visual fixation;
(b) To distribute to the public their original audio and visual fixation and copies thereof by sale, rent or distribution by whatever technical means which are accessible by the public.
Article 31. Rights of broadcasting organizations
(a) To broadcast or re-broadcast their broadcasts;
(b) To distribute their broadcasts to the public;
(c) To formulate [into a fixed form] their broadcasts;
(d) To reproduce formulated broadcasts.
Article 32. Cases when related rights may be exercised without having to seek permission or pay royalties or remuneration
(a) Making one copy of a work for personal scientific research purposes;
(b) Making one copy of a work for teaching purposes, except for performances, audio and visual fixation or broadcasts which have been published for teaching purposes;
(c) Reasonable quoting from a work in order to provide information;
(d) Making of provisional copies of a work by a broadcasting organization for broadcasting purposes when such organization has the broadcasting right.
Article 33. Cases when related rights may be exercised without having to seek permission but when royalties or remuneration must be paid
(a) They directly or indirectly use published audio and visual fixation for commercial purposes in making broadcasts which are sponsored, contain advertisements or which collect fees in any form;
(b) They use published audio and visual fixation in business or commercial activities.
Article 34. Term of protection of related rights
Article 35. Conduct constituting infringement of related rights
Chapter III
COPYRIGHT HOLDERS, AND RELATED RIGHTS HOLDERS
Article 36. Copyright holders
Copyright holder means an organization or individual who holds one, several or all of the economic rights stipulated in article 20 of this Law.
Article 37. Copyright holders being authors
Authors who use their own time, finance and material or technical facilities to create works shall have the moral rights stipulated in article 19 and the economic rights stipulated in article 20 of this Law.
Article 38. Copyright holders being co-authors
Article 39. Copyright holders being organizations and individuals who assign tasks to authors or who enter into contracts with authors
Article 40. Copyright holders being heirs
Any organization or individual who inherits copyright in accordance with the law on inheritance shall be the holder of the rights stipulated in articles 19.3 and 20 of this Law.
Article 41. Copyright holders being assignees of rights
Any organization or individual who is contractually assigned one, several or all of the rights stipulated in articles 19.3 and 20 of this Law shall be the copyright holder.
Article 42. Copyright holders being the State
(a) Anonymous works;
(b) Works for which the term of protection has not expired but the copyright holder died without leaving an heir or the heir renounced the inheritance or was deprived of the right to inherit;
(c) Works for which the ownership right was assigned to the State by the copyright holder.
Article 43. Works belonging to the public
Article 44. Related right holders
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
Article 46. Contracts for the assignment of copyright or related rights
(a) Names and addresses of the assignor and the assignee;
(b) Grounds for the assignment;
(c) Price and method of payment;
(d) Rights and obligations of the parties;
(dd) Liability for contractual breach.
Section 2. LICENSING OF COPYRIGHT AND RELATED RIGHTS
Article 47. General provisions on licensing of copyright and related rights
for the right of publication. Performers shall not be permitted to license the moral rights specified in article 29.2 of this Law.
Article 48. Contracts for the licensing of copyright or related rights
(a) Full names and addresses of the licensor and the licensee;
(b) Grounds for the licence;
(c) Scope of the licence;
(d) Price and method of payment;
(dd) Rights and obligations of the parties;
(e) Liability for contractual breach.
Chapter V
CERTIFICATES OF REGISTERED COPYRIGHT AND RELATED RIGHTS
Article 49. Registration of copyright and related rights
Article 50. Applications for registration of copyright or related rights
(a) A declaration for registration of copyright or related rights.
A declaration must be made in Vietnamese and signed by the author, copyright holder, related rights holder or person authorized to file the application; and must include complete information on the applicant, author, copyright holder or related rights holder; the summarized content of the work, performance, audio and visual fixation or broadcast; the name of the author, and the title of the work used to make the derivative work if the work to be registered is a derivative work; the date, place and form of publication; and an undertaking accepting liability for the information set out in the application.
The Ministry of Culture and Information shall regulate the sample form of a declaration for registration of copyright or related rights.
(b) Two copies of the work the subject of the application for copyright registration, or two copies of the formulated object the subject of the application for related rights registration;
(c) A letter of authorization where the applicant is an authorized person;
(d) Documents proving the right to file the application where the applicant acquires such right by way of inheritance, succession or assignment;
(dd) Written consent of the co-authors in the case of a work under joint authorship;
(e) Written consent of the co-owners if the copyright or related rights are jointly owned.
Article 51. Authority to grant registered copyright certificates and registered related rights certificates
Article 52. Time-limit for granting registered copyright certificates and registered related rights certificates
The State administrative body for copyright and related rights shall be responsible to grant a registered copyright certificate or registered related rights certificate to the applicant, or shall notify the applicant in writing in a case of refusal to grant a certificate, within a time-limit of fifteen (15) working days from the date of receipt of a valid application.
Article 53. Validity of registered copyright certificates and registered related rights certificates
Article 54. Official recording and publication of registered copyright and registered related rights
Article 55. Re-grant, renewal and cancellation of effectiveness of registered copyright certificates and registered related rights certificates
Chapter VI
REPRESENTATION, CONSULTANCY AND SERVICES REGARDING COPYRIGHT AND RELATED RIGHTS
Article 56. Organizations acting as collective representatives of copyright or related rights
(a) Manage copyright or related rights; conduct negotiations for licensing; and collect and distribute royalties, remuneration and other material benefits from the permitted exercise of authorized rights;
(b) Protect the legitimate rights and interests of its members; organize a conciliation if a dispute arises.
(a) To encourage creative and other social activities;
(b) To co-operate with counterparts in international and national organizations on the protection of copyright and related rights;
(c) To make periodic and one-off reports to competent State bodies on its collective representative activities;
(d) Other rights and duties stipulated by law.
Article 57. Consultancy and service organizations regarding copyright and related rights
(a) Provide consultancy on issues related to the law on copyright and related rights;
(b) Carry out, on behalf of and pursuant to authorization from copyright holders and related right holders, procedures for filing applications for registration of copyright and related rights;
(c) Participate pursuant to authorization in other legal relationships on copyright, related rights and protection of legitimate rights and interests of authors, copyright holders and related right holders.
PART III
INDUSTRIAL PROPERTY RIGHTS
Chapter VII
CONDITIONS FOR PROTECTION OF INDUSTRIAL PROPERTY RIGHTS
Section 1. CONDITIONS FOR PROTECTION OF INVENTIONS
Article 58. General conditions for inventions to be eligible for protection
(a) It is novel;
(b) It is of an inventive nature;
(c) It is susceptible of industrial application.
(b) It is susceptible of industrial application.
Article 59. Objects ineligible for protection as inventions
The following objects shall be ineligible for protection as inventions:
Article 60. Novelty of inventions
(a) It is published by another person without permission from the person having the right to register it as 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 as defined in article 86 of this Law;
(c) It is displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to register it as defined in article 86 of this Law.
Article 61. Inventive nature of inventions
An invention shall be deemed to be of an inventive nature if, based on technical solutions already publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam prior to the filing date or the priority date as applicable of the application for registration of the invention, the invention constitutes inventive progress and cannot be easily created by a person with average knowledge in the art.
Article 62. Inventions which are susceptible of industrial application
An invention shall be deemed to be susceptible of industrial application if it is possible to realize mass manufacture or production of products or repeated application of the process which is the subject matter of the invention, and to achieve stable results.
Section 2. CONDITIONS FOR PROTECTION OF INDUSTRIAL DESIGNS
Article 63. General conditions for industrial designs to be eligible for protection
(b) It is of a creative nature;
Article 64. Objects ineligible for protection as industrial designs
The following items shall be ineligible for protection as industrial designs:
Article 65. Novelty of industrial designs
Article 66. Creativity of industrial designs
An industrial design shall be deemed to be creative if, based on industrial designs already publicly disclosed through use or by means of written descriptions or in any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the application for registration of the industrial design, the industrial design cannot be easily created by a person with average knowledge in the art.
Article 67. Industrial designs which are susceptible of industrial application
An industrial design shall be deemed to be susceptible of industrial application if it can be used as a model for mass manufacture of products with the outward appearance embodying such industrial design by industrial or handicraft methods.
Section 3. CONDITIONS FOR PROTECTION OF LAYOUT DESIGNS
Article 68 General conditions for layout designs to be eligible for protection
A layout design shall be eligible for protection when it satisfies the following conditions:
Article 69. Objects ineligible for protection as layout designs
The following items shall be ineligible for protection as layout designs:
Article 70. Originality of layout designs
(a) It is the result of its author's creative labour;
(b) It was not widely known among creators of layout designs or manufacturers of semi- conducting closed circuits at the time of its creation.
Article 71. Commercial novelty of layout designs
Section 4. CONDITIONS FOR PROTECTION OF MARKS
Article 72. General conditions for marks to be eligible for protection
A mark shall be eligible for protection when it satisfies the following conditions:
Article 73. Signs ineligible for protection as marks
The following signs shall be ineligible for protection as marks:
Article 74. Distinctiveness of marks
(a) Simple shapes and geometric figures, numerals, letters or scripts of uncommon languages, except where such sign has 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, use, value or other characteristics descriptive of goods or services, except where such sign has acquired distinctiveness by use before the filing of the application for registration of the mark;
(d) Signs describing the legal status and business sector of business entities;
(dd) Signs indicating the geographical origin of goods or services, except where such sign has been widely used and recognized as a mark or registered as a collective mark or certification mark as stipulated in this Law;
(e) 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 applications for registration with earlier filing dates or priority dates, as applicable, including applications for registration of marks filed pursuant to a treaty of which the Socialist Republic of Vietnam is a member;
(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 five years, except where the ground for such invalidation was non-use of the mark pursuant to sub-clause (d) of article 95.1 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 was aimed at taking advantage of the reputation of the well known mark;
(k) Signs identical with or similar to another person's trade name currently in use if the use of such sign may cause confusion to consumers as to the origin of goods or services;
(l) Signs identical with or similar to a protected geographical indication if the use of such sign may mislead consumers as to the geographical origin of goods;
(m) Signs identical with, containing or being translated or transcribed from protected geographical indications for wines or spirits if such sign has been registered for use with respect to wines and spirits not originating from the geographical areas bearing such geographical indications;
(n) Signs identical with or insignificantly different from another person's industrial design which has been protected on the basis of an application for registration of an industrial design with a filing date or priority date earlier than that of the application for registration of the mark.
Article 75. Criteria for evaluation of whether or not a mark is well known
The following criteria shall be taken into account when considering whether or not a mark is well known:
Section 5. CONDITIONS FOR PROTECTION OF TRADE NAMES
Article 76. General conditions for trade names to be 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 sector and locality.
Article 77. Objects ineligible for protection as trade names
Names of State bodies, political organizations, socio-political organizations, socio-politico-professional organizations, social organizations, socio-professional organizations and other entities not involved in business activities shall not be protected as trade names.
Article 78. Distinctiveness of trade names
A trade name shall be deemed to be distinctive when it satisfies the following conditions:
Section 6. CONDITIONS FOR PROTECTION OF GEOGRAPHICAL INDICATIONS
Article 79. General conditions for geographical indications to be eligible for protection
A geographical indication shall be eligible for protection when it satisfies the following conditions:
Article 80. Objects ineligible for protection as geographical indications
The following objects shall be ineligible for protection as geographical indications:
Article 81. Reputation, quality and characteristics of products bearing geographical indications
Article 82. Geographical conditions relevant to geographical indications
Article 83. Geographical areas bearing geographical indications
Geographical areas bearing geographical indications must have their boundaries accurately determined by words and by maps.
Section 7. CONDITIONS FOR PROTECTION OF TRADE SECRETS
Article 84. General conditions for trade secrets to be eligible for protection
A trade secret shall be eligible for protection when it satisfies the following conditions:
Article 85. Objects ineligible for protection as trade secrets
The following confidential information shall be ineligible for protection as trade secrets:
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. Right to register inventions, industrial designs and layout designs
(a) Authors who have created inventions, industrial designs or layout designs by their own labour and at their own expense;
(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 parties involved and provided that such agreements are not contrary to the provisions of clause 2 of this article.
Article 87. Right to register marks
(a) Such mark is used in the names of all co-owners or used for goods or services which are produced or traded with the participation of all co-owners;
(b) The use of such mark does not cause confusion to consumers as to the origin of goods or services.
Article 88. Right to register geographical indications
The right to register Vietnamese geographical indications belongs to the State.
The State shall permit organizations and individuals producing products bearing geographical indications, collective organizations representing such organizations or individuals, and administrative bodies of localities to which such geographical indications pertain, to exercise the right to register geographical indications. Persons who exercise the right to register geographical indications shall not become owners of such geographical indications.
Article 89. Methods of filing an application for registration of establishment of industrial property rights
Article 90. "First to file" principle
Article 91. Priority principle
(a) The first application was filed in Vietnam or in a country being a contracting party to a treaty of which the Socialist Republic of Vietnam is also a member, containing provisions on priority right, or in a country which has agreed with Vietnam to apply such provisions;
(b) The applicant is a citizen of Vietnam or of a country defined in sub-clause (a) of this clause, who resides or has a production or business establishment in Vietnam or in a country defined in sub-clause (a) of this clause;
(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 of which Vietnam is a member.
Article 92. Protection titles
Article 93. Validity of protection titles
(a) The end of ten (10) years after the filing date;
(b) The end of ten (10) years after the date the layout design was first commercially exploited anywhere in the world by a persons with the registration right or his or her licensee;
(c) The end of fifteen (15) years after the date of creation of the layout design.
Article 94. Maintenance and extension of validity of protection titles
Article 95. Termination of validity of protection titles
(a) The owner fails to pay the stipulated validity maintenance or extension fee;
(b) The owner declares relinquishment of the industrial property rights;
(c) The owner no longer exists, or the owner of a certificate of registered mark is no longer engaged in business activities and does not have a lawful heir;
(d) The mark has not been used by its owner or the licensee of the owner without justifiable reason for five (5) consecutive years prior to a request for termination of validity, except where use is commenced or resumed at least three (3) months before the request for termination;
(dd) The owner of a certificate of registered collective mark fails to supervise or ineffectively supervises the implementation of the regulations on use of the collective mark;
(e) The owner of a certificate of registered certification mark violates the regulations on use of the certification mark or fails to supervise or ineffectively supervises the implementation of such regulations;
(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.
Article 96. Cancellation of effectiveness of protection titles
(a) The applicant for registration has neither had nor been assigned the right to register the invention, industrial design, layout design or mark;
(b) The industrial property object failed to satisfy the protection conditions at the time the protection title was granted.
Article 97. Amendments to protection titles
(a) Changes of, and corrections of errors 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 regulations on use of collective marks or the regulations on use of a certification mark.
Article 98. National Register of Industrial Property
Article 99. Publication of decisions relating to protection titles
Decisions on the grant, termination of validity, cancellation of validity or amendment of protection titles for industrial property rights shall be published by the State administrative body for industrial property rights in the Official Gazette of Industrial Property within sixty (60) days as from the date of issuance of such decision.
Section 2. APPLICATIONS FOR REGISTRATION OF INDUSTRIAL PROPERTY
Article 100. General requirements applicable to applications for registration of industrial property
(a) Declaration for registration, made on the stipulated form;
(b) Documents, samples and information identifying the industrial property object registered for protection as specified in articles 102 to 106 inclusive 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;
(dd) Documents evidencing the priority right, if such right is claimed;
(e) Receipt for payment of fees and charges.
(a) Power of attorney;
(b) Documents evidencing the registration right;
(c) Documents evidencing the priority right;
(d) Other documents supporting the application.
(a) A copy of the 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. Requirements on the uniformity of an application for registration of industrial property
(a) Industrial designs of a set of products consisting of numerous items expressing a single common inventive idea and used together or for a common purpose;
(b) An industrial design accompanied by one or more variants being variations of such industrial design which express a single common inventive idea and which are not significantly different from such industrial design.
Article 102. Requirements on applications for registration of inventions
(a) Fully and clearly disclose 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 explain accompanying drawings, if it is required to further clarify the nature of the invention;
(c) Clarify the novelty, inventive step and susceptibility of industrial application of the invention.
Article 103. Requirements on applications for registration of industrial designs
(a) Fully disclose all features expressing the nature of the industrial design and clearly identify features which are new, different from the least different known industrial design, and consistent with the set of photos or drawings;
(b) Where the application for registration of the industrial design consists of variants, the descriptive section 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 descriptive section must fully show features of each product of the set.
Article 104. Requirements on applications for registration of layout designs
Documents, samples and information identifying a layout design which needs to be registered for protection in an application for registration of a layout design shall include:
Article 105. Requirements on applications for registration of marks
(a) A sample of the mark and a list of goods or services bearing the mark;
(b) Regulations on use of collective marks or regulations on use of certification marks.
(a) Name, address, grounds of establishment and operation 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;
(dd) Measures for dealing with breaches of regulations on use of the mark.
(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;
(dd) Expenses to be paid by the mark user for certification and protection of the mark, if any.
Article 106. Requirements on applications for registration of geographical indications
(a) The name or sign being the geographical indication;
(b) The product bearing the geographical indication;
(c) 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) Map of the geographical area bearing the geographical indication;
(dd) Documents evidencing that the geographical indication is under protection in the country of origin in the case of a foreign geographical origin.
(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 within the meaning stipulated in article 79 of this Law;
(d) Description of local and stable methods of production and processing;
(dd) Information on relationship between the peculiar characteristics and quality, or reputation of the product and the geographical conditions as stipulated in article 79 of this Law;
(e) Information on the mechanism of self-control of the peculiar characteristics or quality of the product.
Article 107 Authorized representation in procedures related to industrial property rights
(a) Full name and address of the principal and of the attorney;
(b) Scope of authorization;
(c) Valid term of authorization;
(d) Date of making the power of attorney;
(dd) Signature and seal (if any) of the principal.
Section 3. PROCEDURES FOR PROCESSING APPLICATIONS FOR REGISTRATION OF INDUSTRIAL PROPERTY AND FOR GRANTING PROTECTION TITLES
Article 108. Receipt of applications for registration of industrial property, and filing dates
(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 in the case of a mark a sample of the mark and a list of goods or services bearing the mark;
(b) Description, including the scope of protection, in the case of an application for registration of an invention; a set of photos and drawings and a description in the case of an application for registration of an industrial design; and a description of peculiar characteristics of a product bearing a geographical indication, in the case of an application for registration of a geographical indication;
(c) Receipt for payment of filing fee.
Article 109. Formal examination of applications for registration of industrial property
(a) It does not fulfil 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 organization or individual but one or more of them do not agree to the filing;
(d) The application is filed in contravention of regulations on the filing method stipulated in article 89 of this Law;
(dd) The applicant fails to pay fees and charges.
(a) Issue a notice of intended refusal to accept the invalid application, clearly stating reasons and setting a time-limit for the applicant to correct errors or to object to such intended refusal;
(b) Issue a notice of refusal to accept the invalid application if the applicant fails to correct errors, improperly corrects errors or fails to make a justifiable objection to such intended refusal stipulated in sub-clause (a) of this clause;
(c) Issue a notice of refusal to grant a certificate of registered design of semi-conducting closed circuits in case of a closed circuit registration application;
(d) Carry out procedures specified in clause 4 of this article if the applicant properly corrects errors or makes a justifiable objection to the intended refusal to accept the invalid application stipulated in sub-clause (a) of this clause.
Article 110. Publication of applications for registration of industrial property
Article 111. Confidentiality of applications for registration of inventions and industrial designs prior to publication thereof
Article 112. Third party opinions on the grant of protection titles
As from the date an application for registration of industrial property is published in the Official Gazette of Industrial Property up until prior to the date of issuance of a decision on grant of a protection title, any third party shall have the right to express an opinion to the competent State administrative body for industrial property rights on the grant or refusal to grant a protection title for 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 applications for registration of inventions
Article 114. Substantive examination of applications for registration of industrial property
(a) Applications for registration of inventions which have already been accepted as being valid and involve requests for substantive examination filed according to regulations;
(b) Applications for registration of industrial designs, marks and geographical indications which have been accepted as being valid.
Article 115. Amendment, supplementation, division and conversion of applications for registration of industrial property
(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, bequest or inheritance, or under a decision of a competent agency;
(dd) To convert an application for registration of an invention involving a request for an invention patent into an application for registration of an invention involving a request for a utility solution patent, and vice versa.
Article 116. Withdrawal of applications for registration of industrial property
Article 117. Refusal to grant protection titles
(a) There are grounds to affirm that the subject matter stated in the application does not fully satisfy the conditions for protection;
(b) The application satisfies the conditions for the grant of a protection title but does not have the earliest filing date or priority date as in the case stipulated in clause 1 of article 90 of this Law;
(c) The application falls into a case stipulated in clause 2 of article 90 of this Law but fails to have the consensus of all applicants.
(a) Notify 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) Notify the refusal to grant a protection title if the applicant makes no objection or makes unjustifiable objection to such intended refusal stipulated in sub-clause (a) of this clause;
(c) Grant a protection title and record 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 stipulated in sub-clause (a) of this clause.
Article 118. Grant of protection titles, entry into the register
Where an application for registration of industrial property does not fall into the cases of refusal to grant protection titles stipulated in clauses 1, 2 and 3(b) of article 117 of this Law and the applicant has paid the fee, the State administrative body for 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 applications for registration of industrial property
(a) For an invention, twelve (12) months from the date of its publication if a request for substantive examination is filed before the date of publication of the application, or from the date of receipt of a request for substantive examination if such request is filed after the date of publication of the application;
(b) For an industrial design, a mark or a geographical indication, six (6) months from the date of publication of the application.
Section 4. INTERNATIONAL APPLICATIONS AND PROCESSING OF INTERNATIONAL APPLICATIONS
Article 120. International applications and processing of international applications
Chapter IX
OWNERS OF INDUSTRIAL PROPERTY RIGHTS, CONTENTS OF INDUSTRIAL PROPERTY RIGHTS, AND LIMITATIONS ON INDUSTRIAL PROPERTY RIGHTS
Section 1. OWNERS OF INDUSTRIAL PROPERTY RIGHTS, CONTENTS OF INDUSTRIAL PROPERTY RIGHTS
Article 121. Owners of industrial property objects
Owner of a mark means an organization or individual who is granted a protection title for such mark by the competent body or who has an internationally registered mark recognized by the competent body or who has a well known mark.
The State shall grant the right to use geographical indications to organizations or individuals who manufacture 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 the right to use geographical indications.
Article 122. Authors of inventions, industrial designs and layout designs and their rights
(a) To be named as authors in invention patents, utility solution patents, industrial design patents or certificates of registered design of semi-conducting closed circuits;
(b) To be acknowledged as authors in documents in which inventions, industrial designs or layout designs are published or introduced.
Article 123. Rights of owners of industrial property objects
(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.
(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 clause 1(a) of this article;
(b) Organizations and individuals who 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 clause 1(b) of this article.
Article 124. Use of industrial property objects
(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 or stocking for circulation the products stipulated in sub-clause (c) of this clause;
(dd) Importing the products stipulated in sub-clause (c) of this clause.
(a) Manufacturing products with an appearance embodying the protected industrial design;
(b) Circulating, advertising, offering or stocking for circulation products stipulated in sub-clause (c) of this clause;
(c) Importing products stipulated in sub-clause (c) of this clause.
(a) Reproducing the layout design; manufacturing semi-conducting closed circuits under the protected layout design;
(b) Selling, leasing, advertising, offering or stocking copies of the protected layout design, semi- conducting closed circuits manufactured under the protected layout design or articles containing such semi-conducting closed circuits;
(c) Importing copies of the protected layout design, semi-conducting closed circuits manufactured under the protected layout-design or articles containing such semi-conducting closed circuits.
(a) Applying the trade secret to the 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 trade secret.
(a) Affixing the protected mark on goods, goods packages, business facilities, means of service provision or 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.
(a) Affixing the protected geographical indication in or on goods or goods packages, business facilities, 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
(a) Using inventions, industrial designs or layout designs in service of their personal needs or for non-commercial purposes, or for purposes of evaluation, analysis, research, teaching, testing, trial production or information collection for carrying out procedures of application for licences for production, importation or circulation of products;
(b) Circulating, importing, exploiting utilities of products which were 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 territory of Vietnam;
(d) Using inventions or industrial designs by persons with the prior use right according to the provisions of article 134 of this Law;
(dd) Using inventions by persons authorized by competent State bodies according to the provisions of articles 145 and 146 of this Law;
(e) 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 protection in an honest manner before the date of filing the application for registration of such geographical indication;
(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.
(a) Disclosing or using trade secrets acquired without knowing or having the obligation to know that they were unlawfully acquired by others;
(b) Disclosing secret data in order to protect the public according to the provisions of clause 1 of article 128 of this Law;
(c) Using secret data stipulated in article 128 of this Law not for commercial purposes;
(d) Disclosing or using trade secrets obtained independently;
(dd) Disclosing or using trade secrets obtained by analyzing or evaluating lawfully distributed products, unless otherwise agreed upon by analyzers or evaluators and owners of such trade secrets or sellers of such products.
Article 126. Acts of infringement of rights to inventions, industrial designs and layout designs
The following acts shall be regarded as infringements of rights of owners of inventions, industrial designs and layout designs:
Article 127. Acts of infringement of the right to trade secrets
(a) Accessing or acquiring information pertaining to a trade secret by taking acts against secrecy- keeping measures applied by lawful controllers of such trade secret;
(b) Disclosing or using information pertaining to a trade secret without the permission of the owner of such trade secret;
(c) Breaching secrecy-keeping contracts or deceiving, inducing, buying off, forcing, seducing or abusing the trust of persons in charge of secrecy-keeping in order to access, acquire or disclose a trade secret;
(d) Accessing or acquiring information pertaining to the trade secret of an applicant for a licence for trading in or circulating products by taking acts against secrecy-keeping measures applied by competent bodies;
(dd) Using or disclosing trade secrets, while knowing or having the obligation to know that they have been acquired by others engaged in one of the acts stipulated in sub-clauses (a), (b), (c) or (d) of this clause;
(e) Failing to perform the secrecy-keeping obligation stipulated in article 128 of this Law.
Article 128. Obligation to maintain secrecy of test data
Article 129. Acts of infringement of rights to marks, trade names and geographical indications
(a) Using signs identical with protected marks for goods or services identical with goods or services on the list registered together with such mark;
(b) Using signs identical with protected marks for goods or services similar or related to those goods or services on the list registered together with such mark, 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 list registered together with such mark, 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 not identical 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 impressions as to the relationship between users of such signs and well known mark owners.
(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 indication;
(b) Using protected geographical indications for products similar to products bearing geographical indications for the purpose of taking advantage of their reputation and popularity;
(c) Using any sign identical with, or similar to, a protected geographical indication for products not originating from geographical areas bearing such geographical indication, and therefore misleading consumers into believing such 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
(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 of which the Socialist Republic of Vietnam is a member 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 such domain name, benefiting from or prejudicing the reputation and popularity of the respective mark, trade name or geographical indication.
Article 131. Provisional rights to inventions, industrial designs and layout designs
Section 2. LIMITATIONS ON INDUSTRIAL PROPERTY RIGHTS
Article 132. Factors limiting industrial property rights
Industrial property rights may be limited pursuant to this Law by the following factors:
(a) To pay remuneration to the authors of inventions, industrial designs or layout designs;
(b) To use inventions or marks.
Article 133. Right to use inventions on behalf of the State
Article 134. Right of prior use of inventions and industrial designs
Article 135. Obligation to pay remuneration to authors of inventions, industrial designs and layout designs
(a) Ten (10) per cent of the profit gained by the owner from the use of the invention, industrial design or layout design;
(b) Fifteen (15) per cent of the total amount received by the owner in each payment for licensing of the invention, industrial design or layout design.
Article 136. Obligation to use inventions and marks
Article 137. Obligation to authorize the use of principal inventions for the purpose of using dependent inventions
Where the owner of a principal invention fails to satisfy the request of the owner of a dependent invention without justifiable reason, the State body concerned may license such invention to the owner of the dependent invention without permission from the owner of the principal invention in accordance with 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
Article 139. Restrictions on assignment of industrial property rights
Article 140. Contents of industrial property right assignment contracts
An industrial property right assignment contract must contain the following principal contents:
Section 2. LICENSING OF INDUSTRIAL PROPERTY RIGHTS
Article 141. General provisions on licensing of industrial property rights
Article 142. Restrictions on licensing of industrial property objects
Article 143. Types of industrial property object licence contracts
Industrial property object licence contracts shall be of the following types:
Article 144. Contents of industrial property object licence contracts
(a) Full names and addresses of the licensor and of the licensee;
(b) Grounds for licensing;
(c) Contract type;
(d) Licensing scope including limitations on use right and territorial limitations;
(dd) Contract term;
(e) Licensing price;
(g) Rights and obligations of the licensor and of the licensee.
of the licensor:
(a) Prohibiting the licensee from improving 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 from exporting goods produced or services provided under the industrial property object licence contract to the territories where the licensor neither holds the respective industrial property right 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) Prohibiting the licensee from complaining about or initiating lawsuits with regard to the validity of the industrial property rights or the licensor's right to license.
Section 3. COMPULSORY LICENSING OF INVENTIONS
Article 145. Grounds for compulsory licensing of inventions
(a) Where the use of such invention is for public and non-commercial purposes or in service of national defence and security, disease prevention, and treatment and nutrition of people or other urgent needs of society;
(b) Where the holder of the exclusive right to use such invention fails to fulfil the obligations to use such invention stipulated in clause 1 of article 136 and clause 5 of article 142 of this Law upon the expiration of four years as from the date of filing the application for registration of the invention, or the expiration of three years 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 the exclusive right to use such invention or on entry into an invention licence contract in spite of efforts made within a reasonable time for negotiating a satisfactory commercial price and conditions;
(d) Where the holder of the exclusive right to use such invention is deemed to have performed anti-competitive practices prohibited by the law on competition.
Article 146. Conditions limiting the right to use inventions compulsorily licensed pursuant to a decision
(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 case stipulated in clause 1(d) of article 145 of this Law. For an invention in semi-conducting technology, licensing shall be only for public and non-commercial purposes or for dealing with anti-competitive practices prohibited by the law on competition;
(c) The licensee must neither assign nor sub-license such right to others, except where the assignment is effected together with the transfer of the licensee's establishment;
(d) The licensee must pay the holder of the exclusive right to use the invention satisfactory compensation depending on the economic value of such use right in each specific case, and compliant with the compensation framework stipulated by the Government.
(a) The holder of the exclusive right to use the principal invention shall also be licensed to use dependent inventions 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 inventions.
Article 147. Authority and procedures for compulsorily licensing of an invention pursuant to a decision
Ministries and ministerial equivalent bodies shall, after consulting the opinion of the Ministry of Science and Technology, issue decisions on licensing of inventions in domains under their respective management in the case stipulated in sub-clause (a) of article 145.1 of this Law.
Section 4. REGISTRATION OF CONTRACTS FOR TRANSFER OF INDUSTRIAL PROPERTY RIGHTS
Article 148. Validity of contracts for transfer of industrial property rights
Article 149. Application file for registration of a contract for transfer of industrial property rights
An application file for registration of an industrial property object licence contract or of an industrial property right assignment contract shall contain:
Article 150. Processing application files for registration of contracts for transfer of industrial property rights
The Government shall provide regulations on the order and procedures for receiving and processing application files for registration of industrial property object licence contracts and of industrial property right assignment contracts.
Chapter XI
INDUSTRIAL PROPERTY REPRESENTATION
Article 151. Industrial property representation services
(a) Representing organizations or individuals before competent State bodes 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.
Article 152. Scope of rights of industrial property representatives
(a) Concurrently represent different parties in dispute over industrial property rights;
(b) Withdraw applications for protection titles, declare waiver of protection or withdraw appeals against the establishment of industrial property rights without consent from the authorizing parties;
(c) Deceive their clients regarding contracts for industrial property representation services or force their clients to enter into and perform such contracts.
Article 153. Responsibilities of industrial property representatives
(a) To clearly notify fee and charge amounts and rates related to procedures for establishment and enforcement of industrial property rights, and service charge amounts and rates according to the service charge tariff registered at the State administrative body for industrial property rights;
(b) To keep confidential information and documents related to cases in which they act as representatives;
(c) To truthfully and fully inform represented parties of all notices and requests from the State body competent to establish and enforce industrial property rights; to deliver on time to the represented parties protection titles and other decisions;
(d) To protect the rights and legitimate interests of represented parties by promptly satisfying all requests regarding represented parties from the State body competent to establish and enforce industrial property rights;
(dd) To notify the State body competent to establish and enforce industrial property rights of all changes in the names, addresses of and other information about the represented parties when necessary.
Article 154. Conditions applicable to industrial property representation service business
Organizations which satisfy the following conditions shall be permitted to provide industrial property representation services as industrial property representation service organizations:
Article 155. Conditions applicable to industrial property representation service practices
(a) Having an industrial property representation service practising certificate;
(b) Working for one industrial property representation service organization.
(a) Being a Vietnamese citizen with full capacity for civil acts;
(b) Residing permanently in Vietnam;
(c) Having a university degree;
(d) Having been engaged personally in the domain of industrial property law for five consecutive years or more, or in the examination of assorted industrial property registration applications at national or international industrial property offices for five consecutive years or more, or having graduated from a training course on industrial property law recognized by the competent body;
(dd) Not being a civil servant working in the State body competent to establish and enforce industrial property rights;
(e) Having passed an examination on the industrial property representation profession organized by the competent body.
Article 156. Recording and deleting names of industrial property representation service organizations; withdrawal of industrial property representation service practising certificates
PART IV
RIGHTS TO PLANT VARIETIES
Chapter XII
CONDITIONS FOR PROTECTION OF RIGHTS TO PLANT VARIETIES
Article 157. Organizations and individuals whose rights to plant varieties are eligible for protection
Article 158. General conditions for plant varieties to be eligible for protection
Plant varieties eligible for protection means plant varieties which have been selected and bred or discovered and developed, are on the list of State protected plant species promulgated by the Ministry of Agriculture and Rural Development; and are new, distinct, uniform, stable and designated by proper denominations.
Article 159. Novelty of a plant variety
A plant variety shall be deemed new if reproductive materials or harvested materials of such variety have not yet been sold or otherwise distributed for the purpose of exploitation in the territory of Vietnam by the registration right holder defined in article 164 of this Law or his or her licensee one (1) year before the filing date of the application for registration, or for exploitation outside the territory of Vietnam six (6) years before the filing date of the application for registration for timber trees or vines, or four (4) years for other plant varieties.
Article 160. Distinctness of a plant variety
(a) Their reproductive materials or harvested materials have been widely used in the market of any country at the time of filing of the application for registration for protection;
(b) They have been protected or registered on the list of plant species in any country;
(c) They are the subject matter of an application for registration for protection or registration on the list of plant species in any country, provided that such application has not been rejected;
(d) Their detailed description has been published.
Article 161. Uniformity of a plant variety
A plant variety shall be deemed uniform if, subject to variation which may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.
Article 162. Stability of a plant variety
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
(a) They consist of numerals only, except where such numerals are relevant to characteristics or the breeding of such variety;
(b) They violate social ethics;
(c) They may easily mislead as to features or characteristics of such variety;
(d) They may easily mislead as to identification of the breeder;
(dd) They are identical or confusingly similar to marks, trade names or geographical indications protected before the date of publication of the application for registration for protection of such plant variety;
(e) They are identical or similar to the denomination of a harvested material of such plant variety;
(g) They affect prior rights of other organizations or individuals.
Chapter XIII
ESTABLISHMENT OF RIGHTS TO PLANT VARIETIES
Section 1. ESTABLISHMENT OF RIGHTS TO PLANT VARIETIES
Article 164. Registration of rights to plant varieties
(a) Breeders who have personally selected and bred or discovered and developed the plant variety by their own efforts and at their own expense;
(b) Organizations and individuals who fund breeders to select and breed or discover and develop the plant variety by job assignment or hiring, unless otherwise agreed;
(c) Organizations and individuals to whom are transferred, or who inherit the right to register for protection of the plant variety.
Article 165. Method of filing applications for registration of rights to plant varieties
Article 166. "First to file" principle applicable to plant varieties
Article 167. Priority principle applicable to protection registration applications
Article 168. Plant variety protection certificates, and the National Register of Protected Plant Varieties
Article 169. Validity of plant variety protection certificates
Article 170. Suspension and restoration of validity of plant variety protection certificates
(a) The protected plant variety no longer satisfies the conditions of uniformity and stability as at the time of grant of the certificate;
(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 administrative body for rights to plant varieties.
Based on the results of considering the application for suspension of a plant variety protection certificate and the opinions of relevant parties, the relevant State administrative body for rights to plant varieties shall either issue a decision to suspend the validity of the certificate or shall refuse the application.
In the case stipulated in sub-clause (a) of 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 after this has been so certified by the State administrative body for rights to plant varieties.
Article 171. Cancellation of effectiveness of plant variety protection certificates
(a) The application for registration for protection of the plant variety was filed in the name of a person who did not have the registration right, except where the right to such plant variety was assigned to the holder of the registration right;
(b) The protected plant variety failed to satisfy the conditions of novelty or distinctness at the time
of grant of the plant variety protection certificate;
(c) The plant variety failed to satisfy the conditions of uniformity or stability where the plant variety protection certificate was granted on the basis of results of technical tests conducted by the registrant.
Based on the results of the examination of a request for cancellation of effectiveness of a plant variety protection certificate and opinions of the relevant parties, the State administrative body for rights to plant varieties shall either issue a notice of refusal to cancel or shall issue a decision on cancellation of effectiveness of the plant variety protection certificate.
Article 172. Amendment and re-grant of plant variety protection certificates
Article 173. Publication of decisions related to plant variety protection certificates
Decisions on the grant, re-grant, suspension, cancellation, and amendment of plant variety protection certificates shall be published by the State administrative body for rights to plant varieties in a specialized magazine on plant varieties within sixty (60) days after such decisions are issued.
Section 2. APPLICATIONS FOR REGISTRATION FOR PROTECTION, AND PROCESSING APPLICATIONS
Article 174. Applications for registration for protection
(a) A declaration for registration made on the stipulated sample form;
(b) Photos and a technical declaration made on the stipulated sample 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;
(dd) Documents evidencing the priority right where the application contains a claim for priority right;
(a) Copies of the first application(s) certified by the receiving agency;
(b) Documents on transfer or inheritance of the priority right if such right is acquired from another person.
Article 175. Receipt of applications for registration for protection, and filing dates
Article 176. Formal examination of applications for registration for protection
(a) It fails to satisfy the formal requirements as stipulated;
(b) The plant variety stated in such application does not belong to a plant species on the list of protected plant species;
(c) The application is filed by a person who does not have the registration right, including where the registration right belongs to many organizations or individuals but one or more of them do not agree to register.
(a) Notify a refusal to accept the application in the cases stipulated in sub-clauses (b) and (c) of clause 2 of this article, clearly stating the reasons therefor;
(b) Notify the registrant of errors for correction in the case stipulated in sub-clause (a) of clause 2
of this article, setting a time-limit of thirty (30) days after the receipt of the notice for the correction of such errors by the registrant;
(c) Notify 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 stipulated in sub-clause (b) of this clause;
(d) Notify the acceptance of the application, requesting the registrant to supply samples of the plant variety to the testing institution for performance of technical tests and procedures stipulated 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 stipulated in sub- clause (b) of this clause.
Article 177. Publication of applications for registration for protection
Article 178. Substantive examination of contents of applications for registration for protection
(a) Examination of the novelty and proper denomination of the plant variety;
(b) Examination of results of technical tests of the plant variety.
The technical test shall be conducted by the competent State body or by an organization or individual capable of testing plant varieties in compliance with regulations of the Ministry of Agriculture and Rural Development.
The State administrative body for rights to plant varieties may use previously obtained technical test results.
Article 179. Amendment and supplementation of applications for registration for protection
(a) To amend or supplement the application without changing the nature of the application;
(b) To request the recording of changes of the registrant's name or address;
(c) To request the recording of a change of registrant due to assignment of the application pursuant to a contract or as a result of inheritance or bequest.
Article 180. Withdrawal of applications for registration for protection
Article 181. Opinions of third parties on the grant of a plant variety protection certificate
As from the date of publication of an application for registration for protection of a plant variety in a specialized magazine on plant varieties up until before a decision on grant of a plant variety protection certificate is issued, any third party shall be permitted to provide an opinion to the State administrative body for rights to plant varieties challenging the grant of such plant variety protection certificate. An opinion must be made in writing and accompanied by documents and evidence to support it.
Article 182. Refusal to grant a plant variety protection certificate
An application for registration for protection shall be rejected and the grant of a plant variety protection certificate refused where the relevant plant variety fails to satisfy the conditions stipulated in articles 176 and 178 of this Law. In a case of refusal to grant a plant variety protection certificate, the State administrative body for rights to plant varieties shall carry out the following procedures:
Article 183. Grant of plant variety protection certificates
Where an application for registration for protection is not rejected as provided for in article 182 of this Law and the registrant pays the fee, the State administrative body for rights to plant varieties shall issue a decision granting a plant variety protection certificate and shall record it in the National Register of Protected Plant Varieties.
Article 184 Complaints about the grant or the refusal to grant a plant variety protection certificate
Chapter XIV
CONTENTS OF AND LIMITATIONS ON RIGHTS TO PLANT VARIETIES
Section 1. CONTENTS OF RIGHTS TO PLANT VARIETIES
Article 185. Rights of breeders of plant varieties
The breeder of a plant variety shall have the following rights:
Article 186. Rights of protection certificate holders
(a) To conduct production or propagation;
(b) To process the reproductive materials for the purpose of propagation;
(c) To offer the reproductive materials for sale;
(d) To sell the reproductive materials or to conduct other marketing activities;
(dd) To export the reproductive materials;
(e) To import the reproductive materials;
(g) To stock reproductive materials for the purposes specified in sub-clauses (a) to (e) inclusive of this clause.
Article 187. Extension of rights of protection certificate holders
The rights of a protection certificate holder shall be extended to the following plant varieties:
Article 188. Acts constituting an infringement of the right to a plant variety
The following acts shall be deemed an infringement of the rights of a protection certificate holder:
Article 189. Provisional rights to plant varieties
Section 2. LIMITATIONS ON RIGHTS TO PLANT VARIETIES
Article 190. Limitations on rights of plant variety protection certificate holders
(a) Using the plant variety for personal and non-commercial purposes;
(b) Using the plant variety for cross-breeding for scientific research purposes;
(c) Using the plant variety to create new plant varieties distinct from the protected plant varieties;
(d) Using harvested materials of the protected plant variety by an individual production household for self-propagation and cultivation in the next season on the land area belonging to such household.
(a) Acts relating to further propagation of such plant variety;
(b) Acts relating to export of reproductive materials of such plant variety to countries where the genus or species of such plant variety is not protected, except where such materials are exported for consumption purposes.
Article 191. Obligations of protection certificate holders and breeders of plant varieties
(a) To pay remuneration to the breeder of the plant variety 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 the plant variety protection certificate in accordance with regulations;
(c) To preserve the protected plant variety, to supply reproductive materials of the protected plant variety to the State administrative body for rights to plant varieties, and to maintain the stability of the protected plant variety in accordance with regulations.
Chapter XV
TRANSFER OF RIGHTS TO PLANT VARIETIES
Article 192. Licensing of plant varieties
Article 193. Rights of parties to a licensing contract
(a) To license the use right to a third party if so permitted by the licensor;
(b) To request the licensor to take necessary and appropriate measures to prevent infringement by a third party causing loss and damage to the licensee;
(c) To take necessary measures to prevent a third party's infringements if, within a time-limit of three months from the date of receipt of the request stipulated in sub-clause (b) above, the licensor fails to act as requested.
Article 194. Assignment of rights to plant varieties
Article 195. Bases and conditions for compulsory licensing of plant varieties
(a) The use of such plant variety is for the public interest and non-commercial purposes, or in service of national defence and security, food security and nutrition of the people or to meet other urgent social needs;
(b) The persons having the need 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 licensing contract though they have made best efforts within a reasonable period of time to negotiate a satisfactory price and commercial conditions;
(c) The holder of the exclusive right to use such plant variety is deemed to have conducted anti- competitive practices prohibited by the law on competition.
(b) Such licensed use right is limited within a scope and duration sufficient to attain the licensing objective, and is largely for the domestic market except for the case stipulated in sub-clause (c) of 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 the business establishment of the licensee, and the licensee must not sub-license to others;
(d) The licensee must pay adequate compensation to the holder of the 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.
Article 196. Authority and procedures for licensing of plant varieties pursuant to compulsory decisions
Ministries and ministerial equivalent bodies shall, after consulting the opinion of the Ministry of Agriculture and Rural Development, issue decisions on licensing of plant varieties in domains under their respective management for the cases stipulated in clause 1 of article 195 of this Law.
Article 197. Rights of protection certificate holders in cases of compulsory licensing of plant varieties
A protection certificate holder subject to compulsorily licensing of the plant variety shall have the following rights:
PART V
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
Chapter XVI
GENERAL PROVISIONS ON PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
Article 198. Right to self-protection
(a) To apply technological measures to prevent acts of infringement of its intellectual property rights;
(b) To request any organization or individual who commits an act of infringement of the intellectual property rights of the holder to terminate such act, make a public apology or rectification, and pay damages;
(c) To request the competent State body to deal with acts of infringement of its intellectual property rights in accordance with the provisions of this Law and other relevant laws;
(d) To initiate a lawsuit at a court or a claim at an arbitration centre to protect the legitimate rights and interests of the holder.
Article 199. Remedies when dealing with acts of infringement of intellectual property rights
Article 200. Authority for dealing with acts of infringement of intellectual property rights
Article 201. Intellectual property assessment
Chapter XVII
APPLICATION OF CIVIL REMEDIES IN DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS
Article 202. Civil remedies
Courts may apply the following civil remedies in dealing with organizations and individuals who have committed acts of infringement of intellectual property rights:
Article 203. Burden of proof of litigants9
(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 the absence of a copyright registration certificate, related right registration certificate; necessary evidence proving the right to a trade secret, trade name or well known mark;
(c) Copy of the license contract for an intellectual property object where the use right is licensed pursuant to a contract.
(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 having applied appropriate measures.
Article 204. Principles for determining loss and damage caused by an infringement of intellectual property rights
(a) Material loss and damage including property loss, decrease in income and profit, loss of business opportunity, and reasonable expenses for mitigating and remedying the material damage;
(b) Spiritual loss and damage including damage to honour, dignity, prestige, reputation and other spiritual loss caused to authors of literary, artistic and scientific works; to performers; to authors of inventions, industrial designs, layout designs; and to breeders of plant varieties.
Article 205. Bases for determining amount of damages for loss and damage caused by an infringement of intellectual property rights
(a) Total material damage calculated in an amount of money plus profit derived by the defendant as a result of the act of infringement of intellectual property rights, where the reduced profit amount of the plaintiff has not yet been included in such total material damage;
(b) The price of the licensing of an intellectual property object on the assumption that the defendant was licensed by the plaintiff to use that object under a license contract within a scope corresponding to the act of infringement which was committed;
(c) Where it is impossible to determine the amount of damages for material damage on the bases stipulated in sub-clause (a) and (b) of this clause, such amount of damages shall be set by the court depending on the extent of loss but must not exceed five hundred million (500,000,000) dong.
Article 206. Right to request the court to apply provisional urgent measures
(a) There is a danger of irreparable damage to such intellectual property right holder;
(b) Goods suspected of infringement of intellectual property rights or evidence related to the act of infringement of industrial property rights are likely to be dispersed or destroyed unless they are protected in time.
Article 207. Provisional urgent measures
(a) Retention;
(b) Seizure;
(c) Sealing; prohibiting any alteration of the original state; prohibiting any movement;
(d) Prohibiting transfer of ownership.
Article 208. Obligations of applicants for provisional urgent measures
(a) A sum of money equal to twenty (20) per cent of the value of the goods subject to the application of provisional urgent measures, or at least twenty million (20,000,000) dong where it is impossible to value such goods;
(b) A deed of guarantee issued by a bank or other credit institution.
Article 209. Cancellation of application of provisional urgent measures
Article 210. Authority and procedures for application of provisional urgent measures
The authority and procedures for application of provisional urgent measures shall be implemented in accordance with the provisions of Chapter VIII, Part One of the Civil Procedure Code.
Chapter XVIII
DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF ADMINISTRATIVE AND CRIMINAL MEASURES; CONTROL OF INTELLECTUAL PROPERTY RELATED IMPORTS AND EXPORTS
Section 1. DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF ADMINISTRATIVE AND CRIMINAL MEASURES
Article 211. Acts of infringement of industrial property rights which shall be subject to administrative penalties
(a) Acts of infringement of intellectual property rights which cause loss and damage to consumers or society;
(b) Failure to terminate an act of infringement of intellectual property rights although the intellectual property right holder has issued a written notice requesting termination of such act;
(c) Producing, importing, transporting or trading in intellectual property counterfeit goods stipulated in article 213 of this Law, or assigning others to do so;
(d) Producing, importing, transporting or trading in articles bearing a mark or geographical indication which is identical or confusingly similar to a protected mark or geographical indication, or assigning others to do so.
Article 212. Acts of infringement of industrial property rights which shall be subject to criminal penalties
Any individual who commits an act of infringement of intellectual property rights involving a criminal element shall be criminally prosecuted in accordance with the criminal law.
Article 213. Intellectual property counterfeit goods
Article 214. Forms of administrative penalty and measures for remedying consequences
Any organization or individual who commits an act of infringement of intellectual property rights defined in clause 1 of article 211 of this Law shall be compelled to terminate such act and shall be subject to one of the following principal penalties:
(a) A caution;
(b) A monetary fine.
(a) Confiscation of intellectual property counterfeit goods, raw materials and materials, and facilities used mainly for production or trading of such intellectual property counterfeit goods;
(b) Suspension of business activities for a fixed period in the sector in which the infringement was committed.
(a) Compulsory destruction, distribution or use for non-commercial purposes of intellectual property counterfeit goods as well as raw materials and materials, and facilities used mainly for production or trading of such intellectual property counterfeit goods, provided that such destruction, distribution or use will not affect the exploitation of rights by intellectual property right holders;
(b) Compulsory transportation out of the territory of Vietnam of transit goods infringing intellectual property rights or compulsory re-export of intellectual property counterfeit goods and imported materials and raw materials, and facilities used mainly for production or trading of such intellectual property counterfeit goods after the infringing elements have been removed from such goods.
The Government shall issue detailed regulations on the method of determining the value of infringing goods.
Article 215. Preventive measures and/or measures to secure enforcement of administrative penalties
(a) An act of infringement of intellectual property rights is likely to cause serious loss and damage to consumers or society;
(b) Material evidence of the infringement is likely to be dispersed or there are indications that the offender will evade responsibility;
(c) In order to secure enforcement of a decision imposing an administrative penalty.
(a) Temporary detention of persons;
(b) Temporary custody of infringing goods, material evidence and facilities;
(c) Body searches;
(d) Searches of means of transport and objects; searches of places where infringing goods, material evidence and facilities are hidden;
(dd) Other administrative preventive measures in accordance with the law on dealing with administrative breaches.
Section 2. CONTROL OF INTELLECTUAL PROPERTY RELATED IMPORTS AND EXPORTS
Article 216. Measures to control intellectual property related imports and exports
(a) Suspension of customs procedures for goods suspected of infringing intellectual property rights;
(b) Inspection and supervision to detect goods showing signs of infringing intellectual property rights.
Article 217. Obligations of applicants for measures to control intellectual property related imports and exports
(a) To prove that the applicant is an intellectual property right holder by producing the documents and evidence stipulated in clause 2 of article 203 of this Law;
(b) To supply information sufficient to identify goods suspected of infringing intellectual property rights or to detect goods showing signs of infringing intellectual property rights;
(c) To file a written request with the customs office and to the pay fees and charges stipulated by law;
(d) To pay damages and other expenses incurred to persons subject to control measures in a case where the controlled goods are found not to have infringed industrial property rights.
(a) A sum of money equal to twenty (20) per cent of the value of the goods consignment subject to the application of the measure of suspension of customs procedures, or at least twenty million (20,000,000) dong where it is impossible to value such goods;
Article 218. Procedures for application of the measure of suspension of customs procedures
(a) To continue customs procedures for the goods consignment in question;
(b) To compel the applicant to compensate for all loss and damage caused to the owner of the goods consignment due to the unreasonable request for suspension of customs procedures, and to pay expenses for warehousing and preservation of goods as well as other expenses incurred by the customs office and any related body, organization or individual in accordance with the law on customs;
(c) To refund to the applicant the remaining security amount after the obligation to pay compensation and expenses stipulated in sub-clause (b) above has been fulfilled.
Article 219. Inspection and supervision to detect goods showing signs of infringement of intellectual property rights
Where an intellectual property right holder requests inspection and supervision to detect goods showing signs of infringement of intellectual property rights and the customs office then finds such a goods consignment, the customs office shall promptly notify the applicant thereof. If the applicant does not request the suspension of customs procedures with regard to the offending goods consignment and the customs office does not issue a decision on consideration of application of the administrative penalties stipulated in articles 214 and 215 of this Law within three working days from the date of notification, then the customs office must continue carrying out customs procedures for the goods consignment in question.
PART VI
IMPLEMENTING PROVISIONS
Article 220. Transitional provisions
Article 221. Effectiveness
This Law shall be of full force and effect as of 1 July 2006.
Article 222. Implementing guidelines
The Government and the Supreme People's Court shall provide detailed regulations and guidelines for the implementation of this Law.
This Law was passed by Legislature XI of the National Assembly of the Socialist Republic of Vietnam at its 8th session on 29 November 2005.
CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Van An