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Patent Examination Procedure in Vietnam

By
sblaw
-
Patent Examination Procedure in Vietnam

Applicants should be aware of the examination process a patent going through the National Office of Intellectual Property of Viet Nam (NOIP). This process is begun with the filing of a patent application with NOIP and completed by granting a patent.


(1) Filing the application

In order to obtain the patent right in Viet Nam, you must file the application for granting a Patent (for Invention and for Utility solution separately), directly or by mail, to the National Office of Intellectual Property of Viet Nam (NOIP) or its brand offices in Ho Chi Minh City or Da Nang.

Organizations, individuals of Viet Nam, foreign individuals permanently residing in Viet Nam and foreign organizations and individuals having a production or trading establishment in Viet Nam may file applications for a patent either directly or though a lawful representative in Viet Nam.

Foreign individuals not permanently residing in Viet Nam, foreign organizations and individuals not having a production or trading establishment in Viet Nam shall file applications for a patent through a lawful representative in Viet Nam.

Besides, foreign applicants can also obtain a patent right in Viet Nam by filing an international application which designates or selects Viet Nam through the PCT system. Applicant must carry out procedures for registration of an invention under the PCT’s provisions at NOIP within 31 months from the international filing date or from the priority date, if the priority right is claimed in the application.


The first-to-file principle

Viet Nam adopts the first-to-file system, i.e. where two or more applications are filed by many different parties for registration of the same invention, the patent may only be granted to the valid application with the earliest priority or filing date among applications that satisfy all required conditions; where there are two or more applications satisfying all the conditions for the grant of patent and having the same earliest priority or filing date, the patent may only be granted to a single application out of these applications under an agreement by all applicants. Without such an agreement, all these applications shall be refused for the grant of a patent.

Accordingly, it is advisable to file an application for a patent as soon as possible after the invention and not to make the invention public before filing the application.


(2) Formality examination

A patent application filed with the NOIP shall be subject to formal examination for evaluating its validity.

The time limit for formality examination of an application is one (1) month from the filing date. In the course of formality examination, if the applicant corrects or supplements documents on his/her own initiative or upon the request of the NOIP, the time limit for formality examination may be prolonged for a period of time during which documents are corrected or supplemented.


(3) Request for correction and amendment

Before the expiration of the time limit above, the NOIP shall complete the formality examination of applications and send notices on examination results to applicants.

  • For a valid application, the NOIP shall send to the applicant a notice on acceptance of valid application.
  • For an application failling to meet formal requirements, the NOIP shall issue a notice of intended refusal to accept valid applications, clearly stating reasons and setting a time limit for the applicant to correct errors or to object such intended refusal and set a time limit of one month from the date of notification for the applicant to give opinions or correct errors;


(4) Refuse to accept the valid application

If the applicant to whom the NOIP has sent a notice on its intended refusal of the application fails to correct errors or unsatisfactorily corrects errors or makes no opposition or makes unreasonable opposition to the intended rejection within the set time limit, the NOIP shall send a notice on its refusal of the application and, upon the applicant’s request, refund the paid fees and charges for jobs to be done after the formality examination.

The applicant and all organizations and individuals having rights and interests directly related to decision may lodge complaints with the Director General of NOIP or initiate a lawsuit at court if they disagree with this decision within 90 days from the date the person having the right to complaint receives the notice of this decision.

Within 10 days from the date of receipt of a complaint about the decision of refusal, NOIP shall issue a notice of acceptance or rejection of such complaint, clearly stating the reason(s) for rejection.

Upon the expiration of the time limit for settlement of the complaint about the decision concerning the patent application (the 1st complaints), if the complaint is not settled or complainants disagree with complaint-settling decisions of the NOIP, the complainants or persons having rights and interests directly related to the decision may further lodge their complaints (the 2nd complaints) to the Minister of Science and Technology or initiate lawsuits at court within 30 days from the date of expiration of the time limit for settlement of the 1st complaint if by that date the 1st complaint is not settled, or from the date the person having the right to complaint receives or knows about the decision on settlement of the 1st complaint. Upon the expiration of the time limit for settlement of the 2nd complaint above or if the complainant disagree with complaint-settling decisions of the Minister of Science and Technology, such complainant or person may initiate lawsuits at court.


(5) Publication of the Patent Application

The patent application accepted as valid shall be published by the NOIP in its Industrial Property Official Gazette in the nineteenth (19) month from the date of priority or the filing date in case the application has no date of priority or within two (2) months after being accepted as a valid application, whichever is later for oppositions and comments of third parties.

Applicants shall pay a fee for such publication.

Patent applications under the Patent Cooperation Treaty (PCT) shall be published within two (2) months from the date it is accepted as a valid application and enters the national phase.

Patent applications containing a request for earlier publication shall be published within two (2) months from the date the NOIP receives that request or the date it is accepted as a valid application, whichever is later.

(6) Request for the Substantive Examination

An substantive examination of the application will be carried out only for which the applicant or a third party has filed a request for examination and paid the examination fees within 42 months as of the filing date or the priority date, as applicable, and the time limit for making request for substantive examination of an patent application involving a request for a utility solution patent shall be 36 months counting from the filing date or the priority date, as applicable.

Where no request for substantive examination is filed within the time limit mentioned above, the invention registration application shall be considered having been withdrawn at the expiration of that time limit.


(7) The Substantive Examination

The purpose of substantive examination of patent applications is to assess the patentability of objects claimed in the application under the requirements and corresponding protection scope. A substantive examination will be carried out by examiners of the NOIP within 12 months from the date of receiving the request for substantive examination.

If the applicant, in the course of substantive examination, corrects or supplements documents or makes justifications on his/her own initiative or upon the request of the NOIP, the time limit for substantive examination may be prolonged for a period of time during which the applicant does so.


(8) Notification of the Substantive Examination Results

On the date of expiration of the time limit for substantive examination of an application at the latest, the NOIP shall send to the applicant one of the following notices:

  • a notice on its intended refusal to grant a patent, clearly stating the reason(s) for refusal, possibly guiding the change of the protection scope and setting a time limit of two (2) months from the date of issuance of the notice for the applicant to give opinions and satisfy the requirements (The applicant may request prolongation of the time limit), if the object claimed in the application fails to satisfy the protection conditions.
  • a notice on its intended refusal to grant a patent, clearly pointing out errors and setting a time limit of two (2) months from the date of issuance of the notice for the applicant to justify or correct errors. (The applicant may request prolongation of the time limit), if the object claimed in the application satisfies the protection conditions but the application still contains errors.
  • or makes reasonable justifications within the time limit abovea notice on its intended grant of a patent and request the applicant to pay the fee as referred to in the Item (10), if the object claimed in the application satisfies the protection conditions or makes reasonable justifications within the time limit above.


(9) The Decision of Refusal

If the applicant to whom the NOIP has sent a notice on its intended refusal of the application fails to correct errors or unsatisfactorily corrects errors or makes no opposition or makes unreasonable opposition to the intended rejection within the set time limit, the NOIP shall send a notice on its refusal of the application.

When dissatisfaction is in the decision of refusal of examiners, the applicant may appeal against the decision of refusal with Director General of NOIP or initiate lawsuits at court in accordance with procedures mentioned in the item (4) above.


(10) Request to pay fee

As mentioned in the Item (8), if the patent is granted, the NOIP shall request the applicant to pay the fee for the grant of a patent, the fee for notification of the patent grant decision, the registration fee and the fee for maintenance of the first year’s validity of the patent.


(11) Issue the Patent

Within 10 days after applicants pay fully and on time the fees and charges, the NOIP shall carry out the procedures for granting the patent for the invention.


(12) Entry into the National Register of Industrial Property and publication of the patent

The Patent shall be recorded in the National Register of Inventions and the decision on granting the patent shall be published by the NOIP in the Industrial Property Official Gazette within two (2) months from the date of issuance and after applicants pay a publication fee.

Note:

(i) As from the date an patent application is published the Industrial Property Official Gazette until prior to the date of decision on the grant of a patent, any third party shall have the right to present opinions to the NOIP in relation to the grant or refusal of the patent in respect of the application. Such opinions must be given in written form and be accompanied by materials or must specify the source of information used for proving.

(ii) The time limit for re-examination of patent applications shall be equal to two thirds of, and in complicated cases extendable up to, the time limit for initial examination.

(iii)“PCT applications” include: (a) applications containing a claim for the protection in Viet Nam and filed in any member countries of the PCT, including Viet Nam (PCT applications designating or selecting Viet Nam); (b) applications filed in Viet Nam and containing a claim for the protection in any member countries of the PCT, including Viet Nam (PCT applications originating from Viet Nam).

Source: https://www.aseanip.org/IP-in-ASEAN/Patent-and-Utility-Model/Viet-Nam

Trademark Vietnam

By
sblaw
-
registering trademark for foreign company in Vietnam

(1) Filing the application

The application for a mark registration must be filed directly or by mail, to the National Office of Intellectual Property of Viet Nam (NOIP) or its brand offices in Ho Chi Minh City or Da Nang.

Organizations, individuals of Viet Nam, foreign individuals permanently residing in Viet Nam and foreign organizations and individuals having a production or trading establishment in Viet Nam may file applications for a mark registration either directly or though a lawful representative in Viet Nam.

Foreign individuals not permanently residing in Viet Nam, foreign organizations and individuals not having a production or trading establishment in Viet Nam shall file applications for a mark registration through a lawful representative in Viet Nam.

Foreign applicants can obtain a mark registration in Viet Nam by filing an international application with the International Bureau of the World Intellectual Property Organization (WIPO) which designates Viet Nam through the Madrid Agreement or the Madrid Protocol or both of them.

The first-to-file principle

Viet Nam has adopted the first-to-file system, i.e. where two or more applications are filed by many different parties for registration of the same mark, the registration may only be granted to the valid application with the earliest priority or filing date among applications that satisfy all required conditions; where there are two or more applications satisfying all the conditions and having the same earliest priority or filing date, the registration may only be granted to a single application out of these applications under an agreement by all applicants. Without such an agreement, all these applications shall be refused for the grant of a mark registration.

Accordingly, it is advisable to file an application for a patent as soon as possible after the invention and not to make the invention public before filing the application.

Formality examination

An application for a mark registration filed with the NOIP shall be subject to formality examination for evaluating its validity.

The time limit for formality examination of an application is one (1) month from the filing date. In the course of formality examination, if the applicant corrects or supplements documents on his/her own initiative or upon the request of the NOIP, the time limit for formality examination may be prolonged for a period of time during which documents are corrected or supplemented.

(2) Request for correction and amendment

Before the expiration of the time limit above, the NOIP shall complete the formality examination of applications and send notices on examination results to applicants.

  • For a valid application, the NOIP shall send to the applicant a notice on acceptance of valid application.
  • For an application failing to meet formal requirements, the NOIP shall send to the applicant:

a notice of intended refusal to accept valid applications, clearly stating reasons and setting a time limit for the applicant to correct errors or to object such intended refusal andset a time limit of one month from the date of notification for the applicant to give opinions or correct errors.


(3) Refuse to accept the valid application

If the applicant to whom the NOIP has sent a notice on its intended refusal of the application fails to correct errors or unsatisfactorily corrects errors or makes no opposition or makes unreasonable opposition to the intended rejection within the set time limit, the NOIP shall send a notice on its refusal of the application and, upon the applicant’s request, refund the paid fees and charges for jobs to be done after the formality examination.

Applicants and all organizations and individuals having rights and interests directly related to decision may lodge a complaint with the Director General of NOIP or initiate a lawsuit at court if they disagree with the decision within 90 days from the date the person having the right to complaint receives the notice.

Within 10 days from the date of receipt of a complaint about the notice of refusal, NOIP shall issue a notice of acceptance or rejection of such complaint, clearly stating the reason(s) for rejection.

Upon the expiration of the time limit for settlement of the complaint about the decision or notice concerning the application for mark registration (the 1st complaints) by the NOIP, if the complaint is not settled or the complainant disagree with complaint-settling decisions of the NOIP, the complainant or person having rights and interests directly related to those decision may further lodge their complaints (the 2nd complaints) to the Minister of Science and Technology or initiate a lawsuit at court within 30 days from the date of expiration of the time limit for settlement of the 1st complaint if by that date the 1st complaint is not settled, or from the date the person having the right to complaint receives or knows about the decision on settlement of the 1st complaint. Upon the expiration of the time limit for settlement of the 2nd complaint above or if the complainant disagree with complaint-settling decisions of the Minister of Science and Technology, such complainant or person may initiate a lawsuit at court.


(4) Publication of the application

Within 2 months as from the date the application is accepted as formally valid, it will be published in the Industrial Property Official Gazette for oppositions and comments of third parties. Applicants shall pay a fee for such publication.


(5) Substantive Examination

The purpose of substantive examination of mark applications is to assess the eligibility of objects claimed in the application under the requirements and corresponding protection scope. An examination will be carried out by examiners of the NOIP within 6 months from the date of publication.

If the applicant, in the course of substantive examination, corrects or supplements documents or makes justifications on his/her own initiative or upon the request of the NOIP, the time limit for substantive examination may be prolonged for a period of time during which the applicant does so.


(6) Notification of substantive examination results

On the date of expiration of the time limit for substantive examination of an application at the latest, the NOIP shall send to the applicant one of the following notices:

  • a notice on its intended refusal to grant a mark registration, clearly stating the reason(s) for refusal and setting a time limit of two (2) months from the date of issuance of the notice for the applicant to give opinions and satisfy the requirements. (the applicant may request prolongation of the above time limit), if the signs claimed in the application fails to satisfy the protection conditions;
  • a notice on its intended refusal to grant a mark registration, clearly pointing out errors and setting a time limit of two (2) months from the date of issuance of the notice for the applicant to justify or correct errors. (the applicant may request prolongation of the above time limit), If the signs claimed in the application satisfy the protection conditions but the application still contains errors;
  • a notice on its intended grant of a mark registration and request the applicant to pay the fee as referred to in the Item (9), if the signs claimed in the application satisfy the protection conditions or the applicant satisfactorily corrects errors or makes reasonable justifications within the time limit above.


(7) Notification of refusal

If the applicant to whom the NOIP has sent a notice on its intended refusal of the application fails to correct errors or unsatisfactorily corrects errors or makes no opposition or makes unreasonable opposition to the intended rejection within the set time limit, the NOIP shall send a notice on its refusal of the application.

When dissatisfaction is in the decision of refusal of examiners, the applicant may appeal against the decision of refusal with Director General of NOIP or initiate lawsuits at court in accordance with procedures mentioned in the item (4) above.


(8) Notification of intention to grant a mark registration and request to pay fee

If examiners judge that the application fulfills the requirements, NOIP will issue a notification of its intention to grant the mark registration and request to pay fee for the issue of a mark registration to the applicant.


(9) Issue the Mark Registration Certificate

Within 10 days after applicant pays fully and on time the prescribed fees and charges, the NOIP shall carry out the procedures for granting the Mark Registration Certificate.


(10) Entry into the National Register of Industrial Property and publication of the Mark Registration Certificate

The Mark Registration Certificate shall be recorded in the National Register of Marks and the decision on granting the mark registration shall be published by the NOIP in the Industrial Property Official Gazette within two (2) months from the date of issuance and after applicant pays a publication fee.

For the international mark registered through the Madrid system, the NOIP shall, if accepted for protection, issue and publish a decision on acceptance for protection of an internationally registered mark in its Industrial Property Official Gazette. At the request of an internationally registered mark owner, the NOIP issues a certificate of protection in Viet Nam of the internationally registered mark.

Note:

(1) For an application for international mark’s registration designating Vietnam, the NOIP shall conduct the substantive examination of the application according to the procedures applicable to mark registration application filed directly with the NOIP. Within 12 months after the International Bureau issues the notice, the NOIP shall make a conclusion on protectability of the mark.
(2) Procedures for mark international registration applications originating in Vietnam: the procedures for processing mark registration applications will also apply to the processing of mark international registration applications at the NOIP.
(3) Rights to well known marks are protected and belong to proprietors of those marks without any registration procedures. If a well-known mark is recognized according to civil procedures or under a recognition decision of the NOIP, that well-known mark shall be recorded in the list of well-known marks kept at the NOIP.
(4) As from the date an trademark registration application is published the Industrial Property Official Gazette until prior to the date of decision on the grant of a Mark registration Certification, any third party shall have the right to present opinions to the NOIP in relation to the grant or refusal of a Mark registration Certification in respect of the application. Such opinions must be given in written form and be accompanied by materials or must specify the source of information used for proving.

Source: https://www.aseanip.org/IP-in-ASEAN/Trade-Mark/Viet-Nam

Vietnam trademark quotation

By
sblaw
-

Question: My company needs filling application trademark on Vietnam. Can you send me a quotation?

Thank you very much!

Answer: Thank you very much for your email regarding the subject matter. Regarding your enquiries concerning the subject matter, we would like to advise you on the procedure and our fee schedule in relation to the trademark registration proceeding in Vietnam as follows:

1. FEE SCHEDULE

In Vietnam, multi-class application is applicable. The basic fees are calculated based on the number of class of goods/services (G/S) in each application as well as the number of products designated in each class in the application.

2.  PROCEDURE AND TIMELINE

The duration of a trademark application is around 14-18 months – from the filing date to the actual receipt of the registration.

The pricess involves these stages:

(1) formal examination and publication in the Gazette (3 months);

(2) examination as to substance (9 months) and

(3) issuance of registration certificate of the registered mark (2 months). Kindly note that the term for registration process in practice normally takes up to several months longer due to the workload of the NOIP and the slow examination process by the NOIP’s examiner.

 3.  REQUIRED DOCUMENTS AND INFORMATION

–       Name and address of the Applicant;

–       List of Goods/Services;

–       Specimen of the applied mark;

–       An original Power of Attorney which is simply signed by the Applicant (our form in attachment) (Please be informed that a scanned/faxed copy of the Power of Attorney is acceptable upon filing provided that the original copy is submitted within 01 month from the filing date).

We hope the above is of your assistance. Should you have any inquiry, please do not hesitate to contact us. We look forward to hearing from you very soon.

Ordinance on Procedures for the settlement of Administrative Cases, 1996:

By
sblaw
-
Ordinance on Procedures for the settlement of Administrative Cases, 1996:

The Ordinance on Procedures for the settlement of Administrative Cases was passed on May 21, 1996 and came into force on July 1, 1996. It was amended in 2006 by the new Ordinance on Procedures for the settlement of Administrative Cases.

The Ordinance provided for general principles concerning the administrative proceedings and procedures in courts in order to settle administrative cases. Although the former Ordinance did not contain specific provisions over intellectual property rights, it also applied to such disputes.

Criminal Code, 1999:

By
sblaw
-
Criminal Code, 1999:

The 1st Criminal Code of Vietnam including provisions on intellectual property is the Criminal Code passed on December 21, 1999 that came into force on July 1, 2000.

The Criminal Code, 1999 included several provisions on intellectual property. First of all, infringements upon copyrights and their consequences are explained in article 131. According to this article, infringers of copyrights shall be sentenced to a fine of from 2 million to 20 million dong or to a non-custodial sentence (maximum 2 years). In case of organized crimes or of recidivism however, infringers shall be submitted to a custodial sentence (between 6 months and 3 years).

Then on counterfeiting, articles 156 to 158 explains consequences on manufacturing and/or trading fake goods. Penalties go from 6 months to 20 years imprisonment, depending on what was counterfeited, on its value, on its consequences… Under articles 157 and 158, life imprisonment and capital punishment can also be required if the crime resulted in particularly serious consequences.

When it comes to industrial property finally, articles 170 and 171 respectively foresee penalties in two cases. The first one is for “breaching the regulations on the granting of industrial property protection deeds”, which is submitted to a non-custodial sentence (maximum 3 years) or to a custodial sentence from 6 months to 3 years. If the crime is committed in an organized manner, caused particularly serious consequences or was committed more than once however, the sentence shall be from 2 to 7 years imprisonment.

The second one is for “infringing upon industrial property rights”. Normally, infringers shall be sentenced to a fine (between 20 million and 200 million dong) or to a non-custodial sentence of two years maximum. In case of organized crime, recidivism or particularly serious consequences, the infringer shall expose himself to a 6-month to 3-year custodial sentence.

Science and Technology Law, 2000:

By
sblaw
-
Science and Technology Law, 2000:

The Law on Science and Technology was passed on June 9, 2000 and came into force on January 1, 2001. The aim of this law is to regulate scientific and technological organizations and activities.

A few articles of the law contain specific provisions about intellectual property. Firstly, article 2-8 explains that the term “scientific and technological services” also refers to intellectual property and technology transfer, and so the law applies to intellectual property related activities.

Then, article 8 strictly prohibits infringements upon intellectual property rights, along with illegals transfers of technology and illegal information disclosure.

Article 13 is about scientific and technological organizations’ tasks, stipulating that such organizations are able to conduct activities related to intellectual property.

The rights of scientific and technological organizations are defined by article 15. Under article 15-3, organizations are enabled to contribute to the capital of intellectual property rights related to scientific and technological activities. The same article (15-4) also assures them the right to get their intellectual property rights protected.

Plus, article 26 is devoted to the copyrights and ownership rights deriving from scientific and technological activities. According to this article, the performance of a scientific and technological task by organizations and/or individuals leads to its ownership. In the same way, should an organization and/or individual carry out a scientific and technological work, he will be considered the author. Article 26-4 makes clear that authors of scientific and technological works are entitled to the same rights that organizations enjoy for intellectual property rights.

Finally, article 49-5 of the law provides for the State management to secure the protection of the intellectual property rights related to science and technology.

Customs Law, 2001:

By
sblaw
-
Customs Law, 2001:

The Customs Law was passed on June 29, 2001, came into force on January 1, 2002 and was amended in June 2005.

The section 5 of the Customs Law is devoted to intellectual property. It contains 3 articles (articles 57, 58 and 59) setting up the conditions of the customs procedures completion’s temporary postponement for intellectual property rights. Article 57 explains in which case a temporary postponement can be requested to the Customs office, that is to say when the holder of an intellectual property right thinks he is victims of an infringement upon this same protected right.

He has however to satisfy the conditions of article 58 to obtain the postponement. Thus, the holder of the intellectual property right has to send a written request to the Customs office along with evidences of the ownership and of the infringement. Article 58 finally provides that enquirers shall pay a security deposit to the Customs office to prevent wrong requests of postponement.

Ordinance on Handling of Administrative Violations, 2002:

By
sblaw
-
Ordinance on Handling of Administrative Violations, 2002:

 

The Ordinance on Handling of Administrative Violations was passed on July 2, 2002 and came into force on October 1, 2002. It was amended in 2008 by the new Ordinance on Handling of Administrative Violations. The Ordinance foresees general provisions in case of administrative violations and also regulates the special case of intellectual property infringements. Resorting to administrative procedures rather than suing the infringer to court is indeed sometimes regarded as faster and more effective.

When it comes in particular to intellectual property rights, articles 10 and 14 d) are to be considered. Article 10 concerns the prescription period for sanctioning an administrative violation related to intellectual property rights. According to this article then, the holder of an intellectual property right has two years to start an administrative procedure from the day the administrative violation began.

Fort its part, article 14 d) of the Ordinance provides for penalties in the special case of an administrative violation of an intellectual property right. The infringer may be fined up to 100 million dong in such case.

Criminal Procedure Code, 2003:

By
sblaw
-
Criminal Procedure Code, 2003:

The Criminal Procedure Code was passed on November 26, 2003 and came into force on July 1, 2004.

It provides general processes and procedures for the institution of legal proceedings, investigation, prosecution and enforcement of criminal judgments. Even if it does not contain any special provisions for intellectual property, it is applicable to it.

Civil Procedure Code, 2004:

By
sblaw
-
Civil Procedure Code, 2004:

The Civil Procedure Code was passed on June 15, 2004, and came into force on January 1, 2005. It provides processes and procedures for the settlement of civil affairs and the enforcement of civil judgments.

More precisely, when it comes to intellectual property, articles 25-4, 29-2 and 34-1 of the Civil Procedure Code are of special interest. Firstly, article 25-4 provides that civil disputes concerning either intellectual property or technology transfer fall under the Courts’ jurisdiction.

Secondly, article 29-2 foresees that commercial disputes arising from business or trade over intellectual property or technology transfer also fall under the Courts’ jurisdiction.

Finally, the Civil Procedure Code provides that Vietnamese people’s courts of district have no jurisdiction concerning intellectual property or technology transfer. Article 34-1 foresees indeed that such cases shall be judged by Vietnamese people’s courts of provinces.

Competition Law, 2004:

By
sblaw
-
Competition Law

The Competition Law was passed on December 3, 2004 and came into force on July 1, 2005.

It foresees general provisions for acts of competition’s restriction and of unfair competition. The law also provides procedures for the settlement of competition cases and measures to deal with violations of the competition legislation.

Plus, article 119-3 gives specific information about intellectual property cases, explaining that unfair competition acts related to intellectual property shall be punished by the competent agency.

Civil Code, 2005:

By
sblaw
-
Civil Code, 2005:

The Civil Code was passed on June 14, 2005 and came into force on January 1, 2006. It replaced the former Civil Code, 1995, which had codified all existing legislations on civil matters and created the legal foundation for ownership and civil rights. It also replaced all former regulations on intellectual property. Along with the Intellectual Property Law, 2005, the new Civil Code was passed in order to better conform with the WTO norms and to be able to access it as a member, which was successful as Vietnam became the 150th member of the WTO in 2007.

The provisions concerning intellectual property can be found in part VI “Intellectual property rights and technology transfer” of the new Civil Code from article 736 to article 757.

The Civil Code deals with copyrights from article 736 to article 749. It has lowered the provisions from 35 to 14 in comparison with the former Civil Code, 1995. We can also notice the apparition of the term “related rights” to replace the really long appellation “rights and obligations of performers, producers of phonograms and videograms and broadcasting organizations”.

When it comes to industrial property and plant varieties (articles 750 to 753), the new Civil Code foresees only 4 provisions whereas 26 were present in the former Civil Code, 1995. However, objects covered by the protection of industrial property and plant varieties were extended to “semiconductor integrated circuit layout designs, business secrets, trademarks, trade names [and] geographical indications”.

Technology transfer is on its side discussed from article 754 to article 757.

Finally, another part of the Civil Code can be interesting for foreign clients and/or for domestic clients doing business with foreign parties. The part VII of the Civil Code (articles 758 to 777) deals indeed with “Civil relations involving foreign elements”. Three articles are related to intellectual property: article 774 on copyrights; article 775 on industrial property rights and rights to plant varieties; article 776 on technology transfer.

Intellectual Property Law, 2005:

By
sblaw
-
Intellectual Property Law, 2005:

 

The former Intellectual Property Law was passed on November 29, 2005 and came into force on July 1, 2006. It was amended by the afore-mentioned new Law on Intellectual Property, 2009.

The former law was considered a great advance for the protection of the intellectual property, but also for complying with the requirements to join the World Trade Organization (WTO). Before this law, the intellectual property regulations were scattered in about forty legal documents, which were not always consistent with the WTO requirements or even with each other.

The Intellectual Property Law, 2005, allowed thus to have one clear law on the subject, explaining its extent and namely the applicable subjects and the protected objects. The law protected three major rights: the copyrights and related rights; the industrial property rights; the rights in plant varieties.

Ordinance on Procedures for the settlement of Administrative Cases, 2006:

By
sblaw
-
Ordinance on Procedures for the settlement of Administrative Cases, 2006:

The Ordinance on Procedures for the settlement of Administrative Cases came into force on July 1, 2006. It aims at amending a number of articles of the former Ordinance on Procedures for the settlement of Administrative Cases, 1996.

The new Ordinance also contains general provisions about administrative proceedings and procedures in courts concerning the settlement of administrative cases. However, unlike the former Ordinance, it refers specifically to intellectual property rights (article 11-12) foreseeing that the court has jurisdiction to settle administrative cases over intellectual property infringements.

Technology Transfer Law, 2006:

By
sblaw
-
Technology Transfer Law, 2006:

The Law on Technology Transfer was passed on November 29, 2006 and came into force on July 1, 2007. Aim of the law is to regulate the transfer of technologies in Vietnam, from Vietnam to abroad and from abroad to Vietnam.

The law contains some specific provisions related to intellectual property and industrial property. About the transfer of the right to own a technology, the article 16 first defines it as the right to possess, to use and to dispose of the said technology (article 16-1). Then the same article discusses the case in which a technology is protected by an industrial property right (16-2). The law explains that in this situation, the industrial property right shall be transferred at the same time (as the technology) and under the rules of the Law on Intellectual Property.

According to article 17-3, the same rule applies for transferring the right to use when a technology is protected by an industrial property right.

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