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Intellectual property rights4/21/2008 11:39:00 PM
Vietnam recognizes the importance of protecting intellectual property rights, which include copyright, industrial property and plant varieties.
Vietnam is a member of World Intellectual property Organization (WIPO), and is a long-standing party to the Paris Convention for the Protection of Intellectual Property Rights and the Stockholm Convention and the Madrid Agreement for the International Registration of Marks. The country became a member of the Patent Cooperation Treaty in March 1993 and a member of the Bern Convention on Copyright Protection for Literacy and Artistic Works in June 2004. In April 2005, Vietnam officially acceded to the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Phonograms. The Government is now preparing for its accession to the Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite, the International Convention for the Protection of Plant Varieties (UPOV) and the Madrid Protocol. Accession to the Rome Convention for the Protection of Artists, Performers, Phonogram Producers and Broadcasting Agencies is also being considered.Vietnam has bilateral agreements on the protection of intellectual property with the EU, Switzerland and the US. Under the bilateral trade agreement with the US, Vietnam has committed to most obligations covered by the WTO TRIPS Agreement. The country also agrees that it will fully implement the TRIPS Agreement upon its accession into the organization.
In recent years, Vietnam has passed and issued a number of laws, ordinances, decrees and directives to establish a legal framework and measures for the protection of intellectual property rights in the country. As from January 1, 2006, intellectual property protection and civil violations are governed under Part VI of the 2005 Civil Code (passed in June 2005). The new law on intellectual property rights, which was passed in November 2005, will become effective on July 1, 2006.
Under the Ordinance on MFN and National Treatment, foreign holders of IP rights including copyright and relevant rights; industrial property rights (including patents, utility solutions, industrial designs, trademarks, geographical instructions, appellations of origin of goods, trade names, trade secrets, layout designs of integrated circuit), and plant species; and “rights to oppose competition deemed unfair by the law on IP rights, and other IP rights” will be provided with no less favorable protection than that is extended to domestic IP holders.Intellectual property protected under the prevailing Vietnamese Law on Intellectual Property include:
- Copyright in literary, artistic, and scientific works; and copyright-related rights in performances, sound recordings, video recordings, broadcasting programs, satellite signals carrying encrypted program.
- Industrial property including inventions, industrial designs, layout-designs of semi-conductor integrated circuits, business secrets, trademarks, trade names, and geographical indications.
- Rights to plant varieties including plant varieties and their extension materials.
By law, IP holders whose IP rights are infringed may choose to pursue administrative measures, civil procedures, criminal prosecutions, or border measures to deal with IP violations.
The Law on Intellectual Property allows court to apply the following measures to deal with IP violations:
- Compulsory termination of infringement;
- Compulsory public rectification and apology;
- Compulsory performance of civil obligations;
- Compulsory compensation for damages;
- Compulsory destruction of objects of infringement; or compulsory distribution or use of objects of infringement (including materials and transportation means used) for non-commercial purpose provided that such distribution or use does not affect the exploitation of rights by the IP holder.
The following IP violations will be subject to administrative remedies:
Remedies include warning or fine. The fine ranges from the amount equal to the value of the infringed merchandise to the amount equal to five times the value of the infringed merchandise. Depending on the nature and level of infringement, IP violators may be subject to additional remedies such as:
- Violations causing losses to consumers or the society;
- Continuation of infringement, even if a written notice has been served by the IP holder;
- Production, importation, transportation, or trade of counterfeit goods;
- Production, importation, transportation, or trade of goods bearing a mark or a geographical indication that is identical with, or confusingly similar to a protected mark or geographical indication.
- Confiscation of objects of infringement;
- Compulsory suspension of business in the area of violation for a certain period of time;
- Compulsory destruction of objects of infringement; or compulsory distribution or use of counterfeit goods (including materials and transportation means used) for non-commercial purpose provided that such distribution or use does not affect the exploitation of rights by the IP holder.
- Compulsory re-export of imported counterfeit goods (including materials and transportation means used).
In serious cases, IP rights infringers can be subject to criminal prosecution in accordance with the relevant provisions of the Criminal Code. Such cases typically involve large volume of goods or crime acts. Under the law, any person who infringes IP rights for commercial purposes, causing serious consequences, or any offender who has been punished administratively or convicted of the same or similar offences before his criminal record has been expunged, to be fined from VND20-200 million. Counterfeiters or traders of counterfeit goods (being foods, fertilizers, veterinary medicines, plant preservations, animals and plant strains) could face punishment of 1-5 years imprisonment or up to 15 years in serious cases. Counterfeiters or traders of counterfeit goods (food and medicines for humans) may be imprisoned for a period from 2 to 7 years, and in serious cases may be subject to 20 years or life imprisonment or the death penalty.Border Measures
Border measures to protect intellectual property rights include provisional suspension of customs procedures for imported or exported goods suspected of infringing IP rights, and supervision and examination to detect goods suspected of infringement.
To exercise this option, an owner of IP rights must submit a request application, evidence of lawful IP rights, and evidence of infringement of IP rights to the customs office; and pay in advance or submit a letter of guarantee issued by a credit institution for potential compensation for any damage and expenses caused by an improper request for provisional suspension of customs procedures.