The 1^st 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

The Ordinance on Handling of Administrative Violations was passed on April 2, 2008 and came into force on August 1, 2008. It aims at amending and supplementing the former Ordinance on Handling of Administrative Violations passed in 2002.

When it comes to intellectual property, only one amendment of the Ordinance is of interest. Article 14-2 e) increases indeed the maximal monetary penalty in case of administrative violations of intellectual property rights from 100 million VND (according to the former Ordinance on the same matter) to 500 million VND.

The Intellectual Property Law was passed by the Vietnamese National Assembly on June 19, 2009 and came into force on January 1, 2010. This law aimed to amend and supplement some articles of the former Intellectual Property Law passed in 2005.

One of the new law major provisions’ is, firstly, to establish time limits for examining industrial property registration applications. According to article 119 of the said law for instance, the form examination should not be longer than a month. The law also sets up time limits for the substantive examination and the re-examination, if need be.

Moreover, conditions for industrial property representation service business are foreseen by the law. Article 154 thus provides that this representation mission shall not be carried out by foreign law firms and so reserves this area to local lawyers.

The Criminal Code was passed on June 29, 2009 and came into force on January 1, 2010. It created a few new rules amending and supplementing some articles of the former Criminal Code, 1999.

When it comes to intellectual property provisions, only two changes in the Criminal Code, 2009 are of interest. The first one concerns the addition of a new article 170a on copyrights and related rights. Infringements upon copyrights were so far foreseen by article 131 of the former Criminal Code and the risked fines were extremely low. Related rights were so far absent from the Criminal Code, 1999. The new Criminal Code ensures that infringers upon copyrights and related rights can now be fined (between 50 million and 500 million dong) or subjected to a non-custodial sentence (maximum of 2 years). A more important fine (between 400 million and 1 billion dong) and a custodial sentence from 6 months to 3 years are however foreseen for organized crimes and for recidivists.

The second change concerns the amendment of the article 171 on industrial property rights, which sets up more important fines. Fines were indeed comprised between 20 million and 200 million dong and no fine was foreseen for infringement in organized manner and recidivism, whereas they are now at the same level as for copyrights and related rights.

Another change, less visible, is the removal of the expression “for business purposes” to which has been preferred the term “on a commercial scale”. However, the expression “commercial scale” has not been defined yet.