| NATIONAL ASSEMBLY No. 36/2009/QH12 | SOCIALIST REPUBLIC OF VIỆT NAM Independence – Freedom – Happiness |
LAW ON AMENDMENT AND SUPPLEMENT TO SOME ARTICLES OF INTELLECTUAL PROTERTY LAW
Pursuant to the 1992 Constitution of the Socialist Republic of Việt Nam, which was amended and supplemented under the National Assembly’s Resolution No. 51/2001/QH10;
The National Assembly stipulates the law on amendments and supplements to some articles of the Intellectual Property Law No. 50/2005/QH11.
Article 1
Amending and supplementing some articles of the Intellectual Property Law:
1. Article 3 is amended, supplemented as follows:
1.Objects of copyright include literary, artistic and scientific works; objects of copyright-related rights include performances, sound recordings, video recordings; broadcasting programs; satellite signals carrying encrypted programs.
2. Objects of industrial property rights include inventions; industrial designs; layout-designs of semi-conductor integrated circuits; business secrets; trademarks; trade names and geographical indications.
3. Objects of rights to plant varieties are propagating materials and harvested materials.”
2. Article 4 is amended, supplemented as follows:
“Article 4. Interpretation of terminologies
In this Law, the following terminologies shall be understood as follows:
1. Intellectual property rights are the rights of organizations, individuals to their intellectual property, including copyrights and copyright-related rights, industrial property rights and rights to plant varieties.
2. Copyrights are the rights of organizations, individuals to works created or owned by them.
3. Copyright-related rights (hereinafter referred to as related rights) are the rights of organizations, individuals to performances, sound recordings, video recordings, broadcasting programs, satellite signals carrying encrypted program.
4. Industrial property rights are the rights of organizations, individuals to inventions; industrial designs; layout-designs of semi-conductor integrated circuits; trademarks; trade names, geographical indications, business secrets created or owned by them and rights to repression of unfair competition.
5. Rights to plant varieties are the rights of organizations, individuals to the new plant varieties which are created or discovered and developed by, or fall under the ownership right of such organizations or individuals.
6. Intellectual property right holder is the owner of the intellectual property right or an organization, individual that is assigned the intellectual property right by the owner.
7. Work is every product created in the literary, artistic and scientific domain, whatever may be the mode or form of its expression.
8. Derivative work is a work that is translated from one language to another, and is adapted, modified, transformed, compiled, annotated and selected work.
9. Published work, sound/video recording is a work, sound/video recording already released with consent of the copyright owner, the related right owner for the purpose of disseminating it to the public with a reasonable amount of copies.
10. Reproduction means the making of one or more copies of a work or a sound/video recording in whatever mode or form, including the making of copies of the work in electronic form.
11. Broadcasting means the transmission, by wire or wireless means, including through the satellite, of sounds or images or both sounds and images of a work, a performance, a phonogram or a broadcasting program to the public to enable them to receive those at a place or at a time selected by them.
12. Invention is a technical solution in form of a product or a process in order to resolve a specific problem by utilizing laws of nature.
13. Industrial design is appearance of a product expressed in shapes, lines, colors or any combination thereof.
14. Semiconductor integrated circuit is a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in or on a piece of semiconductor material, to perform an electronic function. Integrated circuit is synonymous with IC, chip and microelectronic circuit.
15. Layout-design of a semiconductor integrated circuit (hereinafter referred to as layout-design) is a spatial disposition of circuitry elements and interconnections of such elements in a semiconductor integrated circuit.
16. Trademark is a sign used to distinguish goods or services of different organizations, individuals.
17. Collective trademark is a trademark used to distinguish goods or services of members from those of non-members of an organization that is the owner of the trademark.
18. Certification mark is a mark that its owner authorizes other organizations, individuals to use for their goods or services in order to certify characteristics in respect of origin, materials, raw materials, methods of making goods, methods of services supply, quality, precision, safety or other characteristics of such goods or services.
19. Associated marks are marks that are registered by the same owner, identical or similar to each other, and are used for identical or similar or inter-related goods and services.
20. Well-known mark is a mark widely known throughout the territory of Việt Nam.
21. Trade name is a designation that an organization or individual use in business to distinguish the business entity bearing such designation from other business entities operating in the same field and the sphere of business.
The area of business stipulated in this Clause shall be the geographical area where business entity has business partners, clients or reputation.
22. Geographical indication is a sign used to indicate a product originating from a specific area, locality, territory or country.
23. Business secret is information obtained from financial, intellectual investment which is undisclosed and capable for application in business.
24. Plant variety is a plant group within a single botanical taxon of the lowest rank, uniform in morphology, stable through propagation circles, recognizable by the expression of the characteristics defined by a given genotype or a combination of prescribed genotypes, and distinguished from other plant groupings by the expression of at least one of the genetic characteristics.
25. Protection title is a document a State competent authority grants to an organization, individual to establish industrial property rights to inventions, industrial designs, layout-designs, trademarks, geographical indications; and rights to plant varieties.
26. Propaganting material is a plant or part of a plant intended to grow into a new plant used for propagation or cultivation.
27. Harvesed material is a plant or part of a plant collected from the cultivation of propagating materials.”
3. Article 7 is amended, supplemented as follows:
“Article 7. Restrictions of intellectual property rights
1. The owner of intellectual property rights is only eligible to perform his or her rights within the scope and the term of protection stipulated in this Law.
2.The exercise of intellectual property rights shall not infringe upon interests of the State, the public interests, the rights and legitimate interests of other organizations and individuals, and shall not violate other provisions of relevant legislations.
3. In case that requires safeguards for the objects of defence, security, the welfare of people and other interests of the State and society as stipulated in this Law, the State has the right to prohibit or limit the intellectual property rights holders from or to the exercise of their rights, or compel them to allow other organizations, individuals to use one or more of their rights under appropriate requirements; the limitation of rights to inventions categorized as State secrets shall be implemented in conformity with the Government’s regulations.”
4. Article 8 is amended, supplemented as follows:
“Article 8. State policies on intellectual property rights
1.To recognize and protect intellectual rights of organizations, individuals on the basis of ensuring the equal benefits of the intellectual property rights holders and the public interest; not to protect the intellectual property right objects which are against the social morality, public order, or harmful to national defence and security.
2. To encourage and promote creative activities, exploitation of intellectual property assets for spurring socio-economic development and improving the people’s spiritual and material life.
3. To provide financial assistance for the assignment, exploitation of intellectual property rights in service of the public interests, encourage local and foreign organizations and individuals to finance creative activities and intellectual property rights protection.
4. To prioritize investment for training and refreshing a contingent of officials, civil servants, State employees and related people working in the field of intellectual property rights protection and research, and scientific and technological applications to intellectual property rights protection.
5. To mobilize every investment from society in improving the capacity of the intellectual property rights protection system to meet requirements for socio-economic development and international economic integration.”
5. Article 14 is amended, supplemented as follows:
“Article 14. Forms of copyright protected works
1. Protected literary, artistic and scientific works include:
a) Literary and scientific works, textbooks, teaching materials, and other works expressed in forms of letters or other writing characters;
b) Lectures, presentations and other speeches;
c) Journalistic works;
d) Musical works;
đ) Dramatic works;
e) Cinematographic works and works created by similar methods (hereinafter referred to as cinematographic works);
g) Plastic, applied fine art works;
h) Photographic works;
i) Architectural works;
k) Graphics, schetches, maps, drawing pertaining to topography, architecture, scientific works;
l) Folk literary, artistic works;
m) Computer programs and compilation of data.
2. Derivative works shall only be protected in accordance with Clause 1 of this Article if they do not ham the copyrights in respect of the works used to make derivative works.
3. Works protected as prescribed in Clauses 1 and 2 of this Article must be created directly by author’s intelligence without reproducing others’ works.
4. The Government provides guidelines in detail regarding forms of protected works as stipulated in Clause 1 of this Article.”
6. Article 25 is amended, supplemented as follows:
“Article 25. Cases of using published works without obtaining permission, paying royalties, remuneration
1. The cases of using published works without asking for permission, and paying royalties, remuneration include:
a) Self-reproducing a single copy for private scientific research, teaching purpose;
b) Properly quoting the works without altering the author’s words for commentary or for illustration in one’s own work;
c) Quoting the work without altering the author’s words for use in articles, periodic publications, in radio and television programs and documentaries;
d) Quoting the work for teaching in schools without altering the author’s words, and aiming for commercial purposes;
đ) Reproducing the work for archives in libraries for research purpose;
e) Performing dramatic works and other forms of performing arts in cultural gatherings or in propaganda campaigns without any form of charges;
g) Directly recording the performances for news programs or teaching purpose;
h) Taking photos of or televising the works of plastic art, architectural, photographic and applied fine arts already displayed publicly for introduction purposes;
i) Translating the works into Braille or the like for visually-impaired people;
k) Importing copies of others’ works for personal use only;
2. Organizations, individuals used the works as prescribed in Clause 1 of this Article shall neither make any effect to normal exploitation of the work nor cause any harm to the rights of the author, the copyright owner; and shall provide information on the name of the author, origin and source of the work.
3. Regulations at points a and đ, Clause 1 of this Article shall not be applicable for architectural works, plastic artistic works and computer programs.”
7. Article 26 is amended, supplemented as follows:
“Article 26. Cases of using published works without asking for permission, but paying royalties, remuneration
1. Broadcasting organizations using published works for the purpose of launching broadcasts with sponsorship, advertisements or collection of money in any form shall not have to ask for permission from, but shall be liable for paying royalties or remunerations to, the copyright owner, from the time they use those works. The level of royalties, remuneration, and other material benefits, as well as means of payment shall be mutually agreed by concerned parties; in case where a mutual agreement cannot be reached, the concerned parties shall follow the Government’s regulations or file a lawsuit in accordance with law. Broadcasting organizations using published works for the purpose of broadcasting without sponsorship, advertisements, or collection of money in any form shall not be subject to obtaining permission from, but shall be liable for paying royalties, remunerations to, the copyright owner, from the time they use those works in accordance with the Government’s regulations.
2. Organizations and individuals when using the works as stipulated in Clause 1 of this Article must neither influence the normal exploitation of works nor cause any harm to the rights of the author, the copyright owner; and must provide information about the name of the author, source and origin of the works.
3. The use of works referred to in cases as stipulated in Clause 1 of this Article shall not be applicable for cinematographic works.”
8. Article 27 is amended, supplemented as follows:
“Article 27. Terms of copyrights protection
1. Personal rights stipulated in Clauses 1, 2 and 4 of Article 19 of this Law shall be protected indefinitely.
2. Personal rights stipulated in Clause 3 of Article 19, and property rights stipulated in Article 20 of this Law shall enjoy the following protection terms:
a) Cinematographic works, photographic works, applied fine art works, and anonymous works shall have the term of protection of 75 years from their first publications; cinematographic work, photographic works, and applied fine art works that have not yet been published within 25 year since their fixation shall be protected for 100 years as from their fixation date; with regard to an anonymous work, when information on the author is available, the protection term shall be counted as stipulated in point b of this Clause;
b) Works that are none of the types referred to at point a of this Clause shall have the term of protection that lasts throughout the life of the author and the following 50 years from the year of the author’s death; in respect of works created by co-authors, the term of protection shall end in the 50th year after the year the last surviving co-author dies.
c) Terms of protection stipulated at points a, and b of this Clause shall be ended at twelve o’clock midnight of December 31 of the expiry year of copyrights protection term.”
9. Article 30 is amended, supplemented as follows
“Article 30. Rights of producers of sound/video recordings
1. The producer of a sound/video recording shall have the exclusive right to carry out or authorize others to implement any of the following rights:
a) Directly or indirectly reproducing his or her sound/video recordings;
b) Importing, distributing to the public the original or copies of his/her sound/video recordings in the forms of sale, rental or distribution by any other technical means accessible to the public;
2. The producer of a sound/video recording shall be given material benefits when his/her sound/video recording is distributed to the public.”
10.Article 33 is amended, supplemented as follows:
“Article 33. Cases of using related rights without getting permission, but paying royalties, remuneration
1. Organizations, individuals directly or indirectly using already published sound/video recordings for the commercial purpose of broadcasting with sponsorship, advertisements or collection of money in any form shall not be entitled to ask for permission from, but shall be required to pay royalties, remuneration as agreed to, the authors, the copyright owners, performers, the producers of sound/video recordings and the broadcasting organizations from the time they use those works; in case where a mutual agreement cannot be reached, the concerned parties shall have to follow the Government’s regulations or file a lawsuit in accordance with legal regulations;
Organizations, individuals directly or indirectly using already published sound/video recordings for the commercial purpose of broadcasting without sponsorship, advertisements or collection of money in any form shall not be entitled to get permission from, but shall be required to pay royalties, remuneration as agreed to, the authors, the copyright owners, performers, the producers of sound/video recordings and the broadcasting organizations from the time they use those works in accordance with the Government’s regulations.
2.Organisations, individuals using published sound/video recordings in business and commercial activities shall not be liable to obtaining permission from, but paying royalties, remuneration as agreed to, the authors, the copyright owners, performers, the producers of sound/video recordings, the broadcasting organisations from the time they use those works; in case where a mutual agreement cannot be reached, the concerned parties shall follow the Government’s regulations or file a lawsuit in accordance with law.
3. Organizations and individuals using the rights as referred to in Clauses 1 and 2 of this Article shall neither influence the normal exploitation of performances, sound/video recordings and broadcasts nor prejudice the rights of performers, the producers of sound/video recordings and broadcasting organizations.”
11. Article 41 is amended, supplemented as follows:
“Article 41. Copyrights Owner is a copyrights assignee
1. An organization, individual that is assigned one, several or the whole of the rights stipulated in Article 20 and clause 3, Article 19 of this Law as agreed in the contract shall be the owner of copyrights.
2. An organisation, individual that is managing an anonymous work shall be given the rights of the copyrights owner until when the author of the work is identified.”
12. Article 42 is amended, supplemented as follows:
“Article 42. Copyrights owner is the State
1. The State is the copyrights owner of the following works:
a) Anonymous works, except for the cases stipulated in Clause 2, Article 41 of this Law;
b) Works, which are still under protection terms when the copyrights owners died without any heir(s), or with heir(s) who have waived, or has had no, the right to such works.
c) A work that its ownership rights are assigned to the State by the copyrights owner.
2. The Government shall provide specific provisions on the use of Stated-owned works.”
13. Article 87 is amended, supplemented as follows:
“Article 87. Right to registration of trade mark
1. Organizations, individuals shall have the right to registration of a trademark to be used for goods or services that they supply.
2. Organizations, individuals legally engaged in the trade in a product produced by a third party shall have the right to registration of a trademark to be used for such product, provided for the producer neither uses such a mark for the product nor objects to that registration.
3. A collective organization legally established shall have the right to registration of a collective mark to be used by its members in accordance with the rules on using collective mark; With regard to a sign indicating the geographical origin of goods or services, the organization that has the right to registration shall be the collective organization of organizations, and individuals engaged in the production or trade in the relevant locality; With regard to geographical name, and other signs indicating the geographical origin of Vietnamese local specialties, registration shall be allowed by a competent State agency.
4. An organization functioned to control and certify the quality, characteristics, origin, or other relevant criteria relating to goods or services shall have the right to registration of a certification trademark, provided that such organization is not engaged in the production or trade of such goods or services. With regard to the geographical name, other signs indicating geographical origin of Vietnamese local specialties, registration shall be allowed by a competent State agency.
5. Two or more organizations, or individuals shall have the right to jointly register a single trademark in order to become the co-owners thereof, provided that:
a) The use of such a mark shall be on behalf of all of the co-owners or shall be for the goods or services of which all of the co-owners are engaged in the production or trade;
b) The use of such a mark shall not cause any confusion to consumers regarding origin of goods, services.
6. A person who has the right to registration as prescribed in Clauses 1, 2, 3, 4, and 5 of this Article, even including a person who already submitted a registration application, shall have the right to assign the right to registration to other organizations or individuals by way of a written contract for bequest or by-law inheritance, provided that the assignees satisfy the criteria applicable to the person having the correlative right to registration.
7. With regard to a trademark being protected in a member country of an international treaty which prohibits the representative or the agent of a mark owner to register such mark and of which the Socialist Republic of Việt Nam is also a member country, then such representative or agent shall not be permitted to register such mark unless it is so agreed by the mark owner, except where a legitimate reason is available.”
14. Article 90 is amended, supplemented as follows:
“Article 90. The first-to-file principle
1. In case where two or more applications are filed to register the similar or equivalent invention, industrial designs identical with or insignificantly different from each other, a protection title shall only be granted to the invention or the industrial design with valid application with the earliest date of priority or filing date among the applications that satisfies all the conditions for the issue of a protection title.
2. In case where two or more applications are filed by several people to register the marks identical with or confusingly similar to each other, in respect of identical or similar goods or services, or in case where many applications are filed by only one person to register the similar trademarks to be used for similar products and services, a protection title shall only be granted to a trademark with valid application that bears the earliest date of priority or filing date among the applications that satisfy all the conditions for the issue of a protection title.
3, In case where many applications as stipulated in Clauses 1 and 2 of this Article jointly meet the criteria for the issue of protection titles and all have the earliest date of priority or filing date, a protection title shall only be granted to an object of a single application out of those applications in accordance with the agreement of all applicants. Without such an agreement, all of the respective objects of those applications shall be refused for the grant of a protection title.”
15. Article 119 is amended, supplemented as follows:
“Article 119. Time limit for processing industrial property registration application
1. An application for industrial property registration shall be examined as to form within 1 month from the filing date.
2. An industrial property registration application shall be examined as to substance within the following time limits:
a) 18 months for an application for registration of an invention from the date of publication of the application if a request for substantive examination of the application is made before the date of publication of the application, or from the date of request for substantive examination of the application if such request is made after the date of publication;
b) 9 months from the date of publication of the application as far as marks are concerned;
c) 7 months from the date of publication of the application as far as industrial designs are concerned;
b) 6 months from the date of publication of the application as far as geographical indications are concerned.
3. The time limit for re-examination of an industrial property registration application shall be equal to two thirds of, and in complicated cases extendable up to, the time limit for the initial examination.
4. The time allowed for amendment and supplement of applications shall not be counted in the time limits referred to in Clauses 1, 2 and 3 of this Article; the time limit for processing requests for amendment and supplement of applications shall not exceed one third of the corresponding time limits prescribed in clauses 1 and 2 of this Article.”
16. Article 134 is amended, supplemented as follows:
“Article 134. Right of prior use to inventions, industrial designs
1. In case any person who has, before the filing date or the date of priority (if have) of a registration application for an invention or an industrial design, used or made necessary preparations for use of an invention or industrial design identical with the invention or industrial design stated in the filed registration application but which was created independently (hereinafter referred to as prior use right holder), then after a protection title is granted, such person shall be entitled to continue such use of that invention or industrial design within the same used scope and volume or preparations already made for use without having to obtain permission of, or paying compensation to, the owner of the protected invention or industrial design. Such exercise of the rights of the prior use right holder of invention or industrial design shall not be regarded as an infringement of the rights of the invention or industrial design owner.
2. The holder of prior use rights to an invention or an industrial design shall not be entitled to transfer such rights to others, except where such rights are transferred together with the transfer of business or production premise where such the use or preparations for use of the invention or the industrial design was made. The holder of prior use rights cannot expand the scope and volume of use unless he/she is permitted by the owner of the invention or industrial design.”
17. Article 154 is amended, supplemeted as follows:
“Article 154. Conditions for conducting industrial property representative service business
An organization that satisfies the following conditions shall be entitled to conduct industrial property representative service business in the capacity as an industrial property representative service organization:
1. An enterprise, a cooperative, a law firm, or a scientific and technological service organization established and operating legally, except for foreign law firms operating in Việt Nam; 2. To have a function of conducting business of industrial property representative service recorded in the certificate of business registration, or the certificate of operation registration (hereinafter referred to as the certificate of business registration); 3. The head of the organization or the person entrusted by the head of the organization shall meet the conditions required for undertaking industrial property service practice as stipulated in Clause 1, Article 155 of this Law.”
18. Article 157 is amended, supplemented as follows:
“Article 157. Organization, individual eligible to plant variety rights protection
1. Organizations, individuals who are eligible to the protection of plant variety rights are organizations, individuals that bred, or discovered and developed the plant varieties, or invested in breeding or discovering and developing the plant varieties or were transferred the rights over the plant varieties.
2. Organizations, individuals mentioned in Clause 1 of this Article include Vietnamese individuals and organizations; individuals and organizations of foreign countries which have signed agreements on the protection of plant variety with the Socialist Republic of Việt Nam; foreign organizations and individuals that place a headquarters and register an address of residence in Việt Nam or have a plant variety business or production establishment in Việt Nam; foreign organizations and individuals that place a headquarters and register an address of residence or have a plant variety business or production establishment in a country which has signed an agreement on the protection of plant variety with the Socialist Republic of Việt Nam.”
19. Article 160 is amended, supplemented as follows:
“Article 160. Distinctness of the plant variety
1. The variety shall be regarded to have distinctiveness if it is clearly distinguishable from any other variety whose existence is common knowledge at the time of filing or on the priority date, as the case may be.
2. A variety of common knowledge stipulated in Clause 1 of this Article means the variety of one of the following cases:
a) A variety with its propagating materials or harvested products having been widely used in the market of any country in the world at the time of filing of the application for registration of protection;
b) A variety that has been protected or put into the List of plant species of any country;
c) A variety that remains the subject of a registration application for protection or an application for a place in the List of plant species in any country provided that those applications are not refused.”
20. Article 163 is amended, supplemented as follows:
“Article 163. Denomination of the plant variety
1. The applicant must propose a suitable name for the plant variety to the State management office on plant variety rights, and that name must be the same as the denomination registered for protection in any country which has signed an agreement on the protection of plant variety with the Socialist Republic of Việt Nam.
2. The variety denomination shall be regarded proper if it is easily distinguishable from the names of other plant varieties of common knowledge in the same species or similar species.
3. The variety denomination shall not be considered proper in the following cases:
a) Consisting of numbers only, except where such numbers relate to the characteristics or formation of such plant variety;
b) Violating social morality;
c) Easily causing misrepresentation of features or characteristics of that variety
d) Easily causing misunderstanding about breeder’s identification.
đ) Identical or confusingly similar to a trade mark, trade name or geographical indication already protected before the date of publication of a registration application for protection of such plant variety;
e) Affecting prior rights of any other organization or individual.
4. Organization, individual that offers for sale or brings to the market propagating materials of a plant variety shall have to use the name of the plant variety as that written in the Protection Certificate even after the protection period is expired.
5. When the name of a plant variety is combined with a trademark, a trade name or indications similar to the name of plant variety already registered for sale or offer in the market, such name must still be easily distinctive.”
21. Article 165 is amended, supplemented as follows:
“Article 165. Registration for rights over a plant variety
1. An organization, an individual as stipulated in Article 157 of this Law shall submit an application for registration of rights over a plant variety (hereinafter referred to as a protection application) either directly or indirectly through its legal representative in Việt Nam.
2. An organization that meets the following conditions is permitted to conduct business of plant variety rights representative service in the capacity as a plant variety rights representative organization: a) An enterprise, a cooperative, a law firm, and a technological and scientific service organisation of Việt Nam established and operating in line with law, except for foreign law firms operating in Việt Nam;
b) Having a function of conducting business of plant variety rights representative service written in the certificate of business registration, the certificate of operation registration (hereinafter referred to as the Certificate of Business Registration);
3. The head of the organization or the person entrusted by the head of the organisation, who satisfies the conditions prescribed in Clauses 4 and 5 of this Article, shall be entitled to practise plant variety rights representative services.
4. An individual is permitted to provide plant variety rights representative services when he/she satisfies the following criteria:
a) Holding a certificate of exercise of plant variety rights representative service practice;
b) Taking part in a plant varierty rights representative service organization.
5. An individual who meets the following criteria shall be entitle to the grant of a certificate for the exercise of plant variety rights representative service practice:
a) Vietnamese citizen with fully competent civil capacity;
b) Residing in Việt Nam;
c) Holding a university degree;
d) Directly working in the legal field regarding the rights to the plant variety consecutively for more than five years, or directly examining applications for registration of rights to plant variety at a national or international plant variety rights agency consecutively for more than five years, or graduating from a legal training course on the rights to plant variety recognised by an authorized agency;
đ) Not civil servants and officials currently working in State offices authorised to provide the establishment and ensure the enforcement of plant variety rights;
e) Fufilling requirements at a test on knowledge on plant variety rights representative profession organised by an authorised agency.
6. The Government shall provide specific regulations on a lawful representative who files an application and organize plant variety rights representative services.”
22. Article 186 is amended, supplemented as follows:
“Article 186. Rights of the Protection Certificate Holder
1. The holder of a protection certificate has the rights to use or permit others to use the following rights over propagating materials of the protected plant variety:
a) Production or propagation;
b) Processing for propagation purpose;
c) Offering for sale;
d) Selling or others forms of marketing;
đ) Exporting;
e) Importing;
g) Stocking for any of the behaviors mentioned at points a, b, c, d, đ and e of this Clause.
2. The rights of a plant variety protection certificate holder stipulated in Clause 1 of this Article shall be applied to harvested products that are seized from the illegal use of propagating materials of the protected plant variety, except where the protection certificate holder was given an appropriate chance to exercise his/her rights to propagating materials but did not do so.
3. To prohibit others from using the plant variety in accordance regulations mentioned in Article 188 of this Law.
4. To pass by inheritance or bequest and transfer the rights over the plant variety in accordance with regulations prescribed in Chapter XV of this Law.”
23. Article 187 is amended, supplemented as follows:
“Article 187. Extension of the rights of the protection certificate holder
The rights of a protection certificate holder shall be extended to the following plant varieties:
1. A plant variety that is predominantly derived from the protected plant variety, except where such protected plant variety is predominantly derived from another protected plant variety.
A plant variety is regarded as predominantly deriving from the protected plant variety if such plant variety still retains the expression of the essential characteristics that result from the genotype or a combination of the genotypes of the protected variety, except for the differences which result from the effects on the protected variety.
2. Plant varieties which are not clearly distinguishable from the protected plant variety;
3. A plant variety that the production of which requires the repeated use of the protected plant variety.”
24. Article 190 is amended, supplemented as follows:
“Article 190. Limitations to the right of the plant variety protection certificate holder
1. The following acts are not considered as infringements of the rights over the protected plant variety:
a) Using the variety for personal and non-commercial purposes;
b) Using the variety for experimental purpose;
c) Using the variety to breed other plant varieties, except for cases stipulated in Article 187 of this Article;
d) Production households may use the products harvested from the plant variety to self-propagate and cultivate on their own land for the next crop.
2. The rights over a plant variety shall not be applied for the acts related to any material of the protected variety which have been sold or otherwise brought to the Vietnamese or overseas markets by the protection certificate owners or those permitted by them, except for the following acts:
a) Relating to the continuous propagation of such plant variety;
b) Relating to the export of materials of such plant variety capable of propagation to the countries which do not give the protection to that plant species or its sub-species except where such materials are exported for consumption purpose only.”
25. Article 194 is amended, supplemented as follows:
“Article 194. Assignment of the rights to plant variety
1. The assignment of the rights to a plant variety means that the plant variety protection certificate owner transfers all the rights of such plant variety to the assignee. The assignee shall become the owner of the plant variety Protection Certificate starting from the date the assignment contract is registered to the state management authority on the rights over plant varieties in accordance with the prescribed procedures.
2. In case where the rights of a plant variety is under co-ownership, the assignment of such rights to others must obtain all co-owners’ agreement.
3. The assignment of the rights to a plant variety must be made in the form of a written contract.
4. The assignment of the rights to a plant variety created with the State funding shall be made in line with regulations of the Law on Transfer ofTechnology.”
26. Article 201 is amended, supplemented as follows:
“Article 201. Appraisal, valuation of intellectual property
1. Appraisal, valuation of intellectual property means the competent organizations or individuals, as stipulated in Clause 2 and 3 of this Article, use their knowledge and expertise in intellectual property to make assessment, and conclusion on matters related to intellectual property rights.
2. Enterprises, cooperatives, non-productive units, law firms, except for foreign law firms operating in Việt Nam, which meet the following criteria, shall be entitled to conduct appraisal and valuation of intellectual property:
a) Having a contingent of human resources and technical and material facilities qualified for the organization of appraisal and valuation services in accordance with law;
b) Having a function of carrying out appraisal and valuation of intellectual property written in the certificate of business registration, the certificate of operation registration;
c) The head of the organisation or the person entrusted by the head of the organisation who hold a certificate of intellectual property appraisal expert.
3. An individual who meets all the following criteria shall be granted a certificate of intellectual property appraisal expert by a competent State agency:
a) Vietnamese citizen with fully competent civil capacity;
b) Residing in Việt Nam;
c) Ethically qualified;
d) Having a university degree on a major suitable for the area that he/she submits a request for the grant of a certificate of appraisal expert, boasting professional experiences in such field for more than five years and fulfilling requirements of a test on professsional competence on appraisal and valuation.
4. State competent agencies shall have the right to handle infringements of intellectual property rights and shall have the right to call for appraisal and valuation of intellectual property for the cases they are handling.
5. Intellectual property rights holders and other related organizations, individuals shall have the right to request for appraisal and valuation of intellectual property in order to defend their legitimate rights and interests.
6. The government shall make specific provisions regarding the organization and operation of appraisal and valuation of intellectual property.”
27. Article 211 is amended, supplemented as follows:
“Article 211. Acts of Intellectual Property Rights (IPR) infringements subject to administrative sanctions
1. The following acts of IPR infringements committed by organizations and individuals shall be subject to administrative sanctions:
b) Producing, importing, transporting and trading in intellectual property counterfeit goods referrred to in Article 213 of this Law or assigning others to do such acts;
c) Producing, importing, transporting, trading, storing stamps, labels or other articles bearing a fake mark or geographical indication or assigning others to do such acts;
2. The Government shall make specific provisions regarding acts of IPR infringements to be liable for administrative sanctions, as well as forms and levels of those sanctions and handling procedures.
3. Organizations and individuals that have committed acts of unfair competition on intellectual property shall be sanctioned administratively in line with legal regulations on competition.”
28. Article 214 is amended, supplemented as follows:
“Article 214. Forms of administrative penalties and consequence remedies
1. Organizations, or individuals that have committed acts of IPR infringements referred to in Clause 1 of Article 211 of this Law shall be compelled to stop the infringements and subject to one of the following main sanctions:
a) Warning;
b) Monetary fine.
2. Depending on nature and level of infringement, the IPR infringing organizations and individuals may also be liable to one or the following supplementary sanctioning forms:
a) Confiscating intellectual property counterfeit goods, raw materials, materials, and implements mainly used for manufacturing or trading such intellectual property counterfeit goods;
b) Suspending relevant business activities occurred in the area where violations are found for a definite term.
3. In addition to sanctioning forms referred to in Clauses 1 and 2 of this Article, organizations and individuals that have committed IPR infringing acts may also be liable to the following consequence-overcoming measures:
a) Compelling destruction, or distribution, or putting into use for non-commercial purposes, of intellectual property counterfeit goods, raw materials, materials, and implements mainly used for manufacturing or trading such intellectual property counterfeit goods provided that such distribution and use does not affect the intellectual property right holders’ ability to exploit their rights;
b) Compelling delivery of the transiting goods out of the territory of Việt Nam or re-export of intellectual property counterfeit goods, implements, raw materials, and materials imported mainly for manufacturing or trading such intellectual property counterfeit goods, after having removed infringing elements on those goods.
4. Levels of fine, the competence of imposing administrative sanctions on IPR infringements shall be made in accordance with legal regulations on handling administrative violations.”
29. Article 218 is amended, supplemented as follows:
“Article 218. Procedures for the application of suspension of customs procedures
1. When a person who requests for suspension of customs procedures has fully performed his or her obligations as stipulated in Article 217 of this Law, the customs office shall issue a decision on suspension of customs procedures with regard to the relevant lot of goods.
2. The term of suspension of customs procedures shall be 10 working days from the date the person who requests for the suspension of customs procedures receives the customs office’s announcement on customs procedures suspension. This term may be prolonged up to 20 working days provided for the person who requests for the suspension of customs procedures has to deposit an additional amount of money for guarantee as prescribed in Clause 2, Article 217 of this Law.
3. At the expiration of the term as stipulated in Clause 2 of this Article if the person who requests for the suspension of customs procedures fails to initiate a civil lawsuit and the customs office does not accept the case to handle the exporter, or the importer of the lots of goods under procedures for handling administrative violations, then the customs office shall take the following responsibilities:
a) Continuing to complete customs procedures for such lots of goods;
b) Compelling the person who requests for the suspension of customs procedures to compensate the owner of the lots of goods for all the damages incurred due to unreasonable request for the suspension of customs procedures, and pay expenses for storage and preservation of goods as well as other costs incurred for the customs office, and other related offices, organizations and individuals in accordance with the law and regulations on customs;
c) Reimbursing the person who requests for the suspension of customs procedures the rest of the deposited guarantee amount after he/she has performed obligations and paid all the costs referred to at point b of this Clause.”
30. Article 220 is amended, supplemented as follows:
“Article 220. Transitional provisions
1. Copyright, related rights protected under legal documents that take effect before the effective date of this Law shall continue to be protected under this Law if it remains in term of protection on that date.
2. Applications for registration of copyright, related rights, inventions, utility solutions, industrial designs, trademarks, appellations of origin, layout-designs, plant varieties which have been filed with competent authorities before the effective date of this Law shall continue to be processed in accordance with legal documents that remain applicable at the time of filing.
3. All rights and obligations conferred by protection titles granted under the provisions applicable before the effective date of this Law and procedures for maintenance, renewal, correction, invalidation, transfer of use rights, assignment of ownership, resolution of disputes pertaining to these protection titles shall be subject to this Law, except for those grounds for invalidation of a protection title which shall be subject to the provisions of legal documents applicable to the grant of that protection title. This provision shall also be applied to Decision to register the appellation of origin of goods stipulated in line with legal regulations applicable before the effective date of this Law; State management agencies on industrial property rights shall process procedures on the grant of a certificate of registration of geographical indications as to the appellations of origin of goods.
4. Trade secrets and trade names already existed and protected under the Government’s Decree 54/2000/ND-CP dated October 3, 2000 detailing the protection of industrial property rights with regard to trade secrets, geographical indications, trade names and the protection of rights against unfair competition on intellectual property shall continue to be protected under regulations of this Law.
5. From the effective date of this Law, geographical indications, including those protected under the Decree referred in Clause 4 of this Article, shall only be protected after they were registered with the State authority of industrial property in line with regulations of this Law.”
Article 2
The phrase of “the Ministry of Culture-Information” are replaced by the phrase of “the Ministry of Culture, Sports and Tourism” in Clauses 2, 3 and 5 of Article 11, at point a of Clause 2 of Article 50, and in clause 4 of Article 51 of the Law on Intellectual Property No. 50/2005/QH11.
Article 3
1. This Law shall enter into force as from 01 January 2010.
2. The Government shall make detailed provisions and provide guidelines for the implementation of provisions prescribed in this Law; and provide guidelines for other necessary contents of this Law so to meet requirements of State management in the field.
This Law has been ratified by the National Assembly of the Socialist Republic of Việt Nam at the 5th session of its 12th Legislature on June 19, 2009.
| CHAIRMAN OF THE NATIONAL ASSEMBLY (Signed) NGUYỄN PHÚ TRỌNG |