Vietnam is the member of most multilateral conventions or treaties on intellectual property rights (“IPRs”) relating to inventions, trademarks, new plant varieties and copyrights, such as the Paris Convention, Patent Cooperation Treaty (“PCT”), Berne Convention, Rome Convention, International Union for the Protection of New Varieties of Plants (“UPOV”), Trade-related aspects of Intellectual Property Rights (“TRIPs”). Protection of IPRs is becoming increasingly important in promoting creativity, developing the economy and culture and becoming a prerequisite for international integration of each country.
The Law on Intellectual Property 2005 (as revised in 2009) (“IP Law”) is compliance with international standards when Vietnam joined the WTO, demonstrating the equality of interests between citizens and legal entities of Vietnam and foreign citizens and legal entities. Besides, the innovation of the IP Law contributes to raising awareness, knowledge and sense of law observance for the public, organizations and individuals having related rights and obligations.
1. Agencies in Charge
The National Office of Intellectual Property (“NOIP”) is the authority responsible for industrial property matters.
Copyright Office is responsible for copyright matters; and Ministry of Agriculture and Rural Development is charge of plant variety protection.
2. IP Rights in IP Law
IP Law stipulates following IP rights:
- Copyrights and related rights;
- Trademarks, trade name;
- Industrial designs;
- Patent and utility solutions;
- Geographical indications;
- Trade secrets;
- Rights to plant varieties;
- Designs of semi-conducting closed circuits.
2.1. Copyright and Related Rights
The moral rights of the authors are protected for an indefinite term excepting the right to publish or authorize others to publish the works excluding the right to publish, or authorize others to publish the work. While the economic rights have a term of protection of 75 years as from the date of publication or creation if they has not been published within 25 years from the date of its creation, applicable to cinematographic works, photographic works, applied art works and anonymous works.
Other works shall be protected for the whole life of the author and for 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.
Related rights comprise the rights of performances, audio and visual fixation, broadcasts and program satellite signals. These rights are protected for 50 years calculated from the year following the year of formulation of the protected subject matters.
2.2. Industrial Property Rights
Industrial property rights are the ownership rights of individuals and organizations with respect to patents, utility solutions, industrial designs, trademarks, trade name, business secrets, designs of semi-conducting closed circuits, geographical indications and rights to repression of unfair competition.
Protections of registrable objects, including patents, utility solutions, industrial designs, trademarks, designs of semi-conducting closed circuits, geographical indications, are grant by NOIP. Protection titles shall be valid throughout the entire territory of Vietnam.
Term of Protection and Renewability
- An invention patent shall be valid from the grant date until the end of 20 years after the filing date;
- A utility solution patent shall be valid from the grant date until the end of 20 years after the filing date;
- An industrial design patent shall be valid from the grant date until the end of 5 years after the filing date and may be renewed for two consecutive terms, each of 5 years;
- A certificate of registered design of semi-conducting closed circuits shall be valid from the grant date until one of the following, whichever is earlier:
- The end of 10 years after the filing date;
- The end of 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;
- The end of 10 years after the date of creation of the layout design.
- A certificate of registered trademark shall be valid from the grant date until the end of 10 years after the filing date and may be renewed for many consecutive terms, each of 10 years; and
- A certificate of registered geographical indication shall have indefinite validity starting from the grant date.
Contracts for assignment of industrial property rights must be registered with the NOIP. Licences contracts for industrial property rights should be registered, unless otherwise they will not be enforceable against third parties.
2.3 Rights to Plant Varieties
Plant varieties eligible for protection must be new, distinct, uniform, stable and designated by proper denominations, including plant varieties which have been selected and bred or discovered and developed, are on the list of protected plant species promulgated by the Ministry of Agriculture and Rural Development.
In order to obtain protection of rights to plant varieties, an organization or individual must file an application for registration for protection with New Plant Variety Protection Office - Ministry of Agricultural and Rual Development. A plant variety protection certificate shall be valid throughout the entire territory of Vietnam and from the grant date up until the expiry of a period of 25 years for timber trees and vines; and of 20 years for other plant varieties.
3. Enforcement of IP Rights
Under Vietnamese laws, an act of infringement of the intellectual property rights of another organization or individual may, depending upon the nature and seriousness of such infringement, give rise to application of civil, administrative or criminal remedies.
In necessary cases, the competent State body may apply provisional urgent measures, measures to control intellectual property related imports and exports, preventive measures and measures to secure enforcement of an administrative penalty in accordance with the provisions of the IP law and other relevant laws.
For example, Vietnamese Customs can apply intervention measures at Vietnamese border, like injunctions to seize, collect and preserve evidence of infringement as well as compensation for damage or provisional suspension of customs procedures.