RESTRICTEDWORLD TRADE
ORGANIZATIONWT/ACC/VNM/21/Rev.1
4 November 2003
(03-5881)
Working Party on the
Accession of Viet NamOriginal:  English
ACCESSION OF VIET NAM
Action Plan for the Implementation of the WTO Agreement on
Trade-related Aspects of Intellectual Property Rights (TRIPS)
Revision
The Government of the Socialist Republic of Viet Nam has submitted the following revised
Action Plan for the Implementation of the Agreement on Trade-related Aspects of Intellectual
Property Rights (TRIPS), with the request that it be  circulated to the members of the Working Party.
______________WT/ACC/VNM/21/Rev.1
Page 2Action Plan for the Implementation of the WTO Agreement on
Trade-related Aspects of Intellectual Property Rights (TRIPS)
TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
General obligations
Compliance with Articles 1 through 12 and Article 19 ofthe Paris Convention for the Protection of IndustrialProperty in respect of Parts II, III and IV of the TRIPS
Agreement. Article 2.Paris Convention for the Protection of Industrial
Property:Viet Nam has been a Member of the Paris Convention
since 8 March 1949.The prevailing laws and regulations of Viet Nam are
consistent with this requirement of the TRIPSAgreement.
Under Paris, Article1(2), industrial property has as itsobject patents, utility models, industrial designs,trademarks, service marks, trade names, indications ofsource or appellations of origin, and the repression ofunfair competition.- Chapter II the sixth Part of the Civil Code
(hereinafter referred to as Civil Code) andprovisions of Decree No. 63/CP of October 24,1996 of the Government on detailed regulationsconcerning industrial property as amended byDecree No. 06/2001/ND-CP of February 1, 2001 of
the Government (hereinafter refereed to as Decree
No. 63/CP):
Inventions, utility solutions (including utility
model), industrial designs, trademarks (includingservice mark) and appellations of origin are
protected.
- Decree No. 54/2000/ND-CP of October 3, 2000 of
the Government on the protection of industrialproperty rights to trade secrets, geographicalindications, trade names and the protection of
rights against industrial property - related unfair
competition (hereinafter referred to as Decree No.54/2000/ND-CP):
Geographical indications (except appellations of
origin), trade names and the right against unfair
competition are protected
- Decree No. 13/2001/ND-CP of April 20, 2001 on
the new plant variety protection:
New plant varieties are protected.The prevailing laws and regulations are consistent with
this requirement of the TRIPS Agreement.WT/ACC/VNM/21/Rev.1
Page 3TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
In Paris, Article 1(3), industrial property applies not
only to industry and commerce proper, but to
agricultural and extractive industries and to allmanufactured or natural products, e.g., wines, grain,tobacco leaf, fruit, cattle, minerals, mineral waters, beer,flowers, and flour.Industrial property rights protected under Civil Code
and Decree No. 63/CP and Decree No. 54/2000/ND-CP
of October 3, 2000 applying to any industry andcommerce in the broadest sense, including agricultureand extractive, manufacture industries.The prevailing laws and regulations are consistent with
this requirement of the TRIPS Agreement.
Under Paris, Article 2, nationals of Members are to
enjoy in other Members the advantages that their
respective laws grant to nationals, and shall have the
same protection and the same legal remedy against anyinfringement of their rights if they conform to theconditions and formalities imposed the Member'snationals.Civil Code ( Section 837):
Industrial property right of foreign natural and legal
persons in regard of the industrial property objects inrespect of which Protection Title has been granted bythe State shall be protected under the law of the SocialistRepublic of Viet Nam and the international conventionsto which the Socialist Republic of Viet Nam is a party.
Decree No. 63/CP (Section 67.1a):
The foreign natural and legal persons that are
beneficiaries of the Paris Convention have the right torequest protection for their industrial property right in
Viet Nam and shall enjoy all such rights and be subject
to all such obligations as Vietnamese entities.These provisions are consistent with the TRIPS
Agreement.
Paris, Article 3, requires that nationals of non-Membercountries domicile or that have "real and effective"industrial or commercial establishments in a Membercountry be treated as nationals of a Member country.Civil Code (Section 837):
Industrial property right of foreign natural and legal
persons in regard of the industrial property objects inrespect of which Protection Title has been granted by
the State shall be protected under the law of the Socialist
Republic of Viet Nam and the international conventionsto which the Socialist Republic of Viet Nam is a party.Decree No. 63/CP (Section 67.1a):
The foreign natural and legal persons that are
beneficiaries of the Paris Convention have the right to
request protection for their industrial property right inViet Nam and shall enjoy all such rights and be subjectto all such obligations as Vietnamese entities.These provisions are consistent with the TRIPS
Agreement.WT/ACC/VNM/21/Rev.1
Page 4TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
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Under Paris, Article 4. a, right of priority is to be given
to an applicant for a patent, for registration of a utility
model, an industrial design, or of a trademark who hasfiled the equivalent of a regular national filing under thedomestic legislation of a Member country. The periodsof priority are to be 12 months for patents and utilitymodels, and 6 months for industrial designs and
trademarks. The Article discusses the technical details of
granting priority in depth.Decree No. 63/CP (Section 17):
An applicant for a Protection Title for an invention,
utility solution, industrial design or trademark mayclaim priority on the basis of an application or severalapplications which have been filed earlier in anothercountry for the same subject matter (the first
application (s)). The time limit for filing an application
for a Protection Title shall be 12 months counted fromthe first filing date in relation to an application for aninvention, utility solution; 6 months counted from thefirst filing date in relation to an application for anindustrial design and a trademark.
In order to enjoy a priority right, the applicant shall pay
a respective fee and shall, within 3 months from the dateof filing the application, submit a copy of the firstapplication(s) certified by the respective receiving office
to the National Office of Industrial Property of Viet
Nam.These provisions are consistent with the TRIPS
Agreement.
Article 4bis states that patents obtained for the same
invention in various members of the Paris Union areindependent of each other.Vietnamese patent laws and regulations have no
provision making protection of an invention in VietNam be dependent on its protection in other countries.The prevailing patent laws and regulations are consistent
with the TRIPS Agreement.
Article 4ter requires that inventors have the right to be
named as such in the patent.Decree No. 63/CP (Section 48):
The creator (s) of inventions shall have the right to be
named in the Patent.These provisions are consistent with the TRIPS
Agreement.
Under Article 4quarter, restrictions or limitations on the
sale of a patented product or a product produced by a
patented process cannot be the grounds for refusing apatent or invalidating one already issued.Vietnamese patent laws and regulations have no
provision allowing the refusal or invalidation of a patent
on the ground that the sale of a patented product or aproduct produced by a patented process is restricted orlimited in any forms.The prevailing patent laws and regulations are consistent
with the TRIPS Agreement.
Under Article 5(A)(1), importation of a patented product
manufactured in a Paris Union country cannot be thebasis of forfeiture of the patent.Vietnamese patent laws and regulations have no
provision on forfeiture of a patent on the ground ofimportation of the patented product manufactured in aParis Union country.These provisions are consistent with the TRIPS
Agreement.WT/ACC/VNM/21/Rev.1
Page 5TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
Article 5(A)(2) and (3) authorize countries to use
compulsory licensing as a means to prevent abuses, such
as the failure to work, but they may not forfeit a patentunless the grant of a compulsory license would not besufficient to prevent the abuse. Proceedings forforfeiture or revocation cannot be institute until twoyears after the grant of the first compulsory license.Vietnamese patent laws and regulations have no
provision on forfeiture or revocation of the patent as a
means to prevent abuses even if the grant of acompulsory license would not be sufficient to preventabuse of the patent rights.The prevailing patent laws and regulations are consistent
with the TRIPS Agreement.
Article 5(A)(4) prohibits application for a compulsorylicense for failure to work until four years have passed
since the application was filed or three years from dateof grant and no compulsory license is to be granted ifthe patentee justifies the failure to work. Licenses are tobe non-exclusive, and may not be transferred exceptwith the enterprise or goodwill that exploits the license.Decree No. 63/CP (Section 51.2):
The grant of a compulsory license shall be applied only
when the owner of industrial property rights, withoutjustifiable motivations, does not use the industrialproperty object or does not use it in accordance with theneeds of economic, social development of the country
and shall not be applied until 4 years have passed since
the patent application was filed or 3 years from the dateof granting the patent.
A compulsory license shall not be granted if the owner
of industrial property rights with the justifiable
motivations does not use industrial property object or
does not use it in accordance with the needs ofeconomic, social development of the country.
A compulsory license shall be non-exclusive. The
grantee of a compulsory license shall not be entitled to
transfer it to others, except with the whole business
using that license.These provisions are consistent with the TRIPS
Agreement.
Article 5(B) prohibits forfeiture of industrial designs for
failure to work or for importing articles corresponding tothose that are protected.Vietnamese patent laws and regulations do not provide
for the forfeiture of industrial designs by reason offailure to work or importation of articles correspondingto those that are protected.The prevailing patent laws and regulations are consistent
with the TRIPS Agreement.WT/ACC/VNM/21/Rev.1
Page 6TRIPS AgreementViet Nam
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Article 5(C) prohibits cancellation of a mark for
unjustified non-use before a reasonable period of time
has passed and permits the proprietor to use differingelements that do not diminish the distinctive character ofa mark without invalidating the registration ordiminishing the protection granted the mark. Concurrentuse of the mark by co-proprietor is permitted so long as
the public is not misled.Decree No. 63/CP (Section 28.2.c):
The validity of a Trademark Registration Certificate
shall be terminated subject to a request of a third partyin case the proprietor has not used the trademark withoutlegitimate reasons for 5 consecutive years before therequest is made.
Vietnamese laws and regulations do not have provisions
on cancellation or narrowing the protection by reason ofusing different elements that do not diminish thedistinctive character of the registered trademark.Vietnamese trademark laws and regulations do not allow
co-ownership of a tradem ark, except a collective
trademark. There exist only provisions on the use of thecollective trademark by co -proprietors – under the
common regime of the collective that owns thetrademark.Viet Nam will consider the promulgation of provisions
that allow the concurrent use of a trademark by its co-
owners provided that such use will not result inmisleading the public.
Under Article 5(D), protection of patents, registeredtrademarks, and industrial designs cannot ...Vietnamese industrial property laws and regulations do
not provide that the condition for the protection is to
indicate on goods the protected inventions, utility
solutions, industrial designs and trademarks.These provisions are consistent with the TRIPS
Agreement.
Article 5bis requires that a grace period of at least six
months be provided for the payment of maintenance feesfor industrial property, but a surcharge is permissible.Countries are authorized to restore patents that lapsedfor non-payment of fees.Circular No. 3055/TT-SHCN of December 31, 1996
implementing regulations of Decree No. 63/CP(hereinafter referred to as Circular 3055/TT-SHCN )(Item 27):
The time limit for the payment of maintenance fees is 6
months prior to the date of expiring each validity period.Those maintenance fees may be paid later than theabove said time limit, but not later than 6 months fromthe expiry date. In this case a surcharge of 10% ofprescribed fees must be paid.Provisions on restoration of patent that lapsed for non-
payment of annual fees would be introduced into asubstitution of Circular 3055/TT-SHCN planned to bepromulgated in 2003.
Article 5ter ,prohibits a Paris Member from making use
of patented devices aboard a vessel, aircraft, of land
vehicle temporally or accidentally in the territory of theMember.Decree No. 63/CP (Section 52.1.c):
The use for maintaining operations of foreign transport
means temporarily entering or being in the territory ofViet Nam is not considered as infringement of industrialproperty rights.These provisions are consistent with the TRIPS
Agreement.WT/ACC/VNM/21/Rev.1
Page 7TRIPS AgreementViet Nam
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Article 5quarter requires that process patent owners have
all the rights against an imported product produced by
the patent process that they would have with respect toproducts manufactured at home.Decree 63/CP (Section 34.1):
The process patent owners have rights against an
imported products manufactured by the protectedprocess that they would have with respect to productsmanufactured domestically: the right of putting intocirculation, advertising, offering and storing for sale of
products are not discriminated between products
manufactured in foreign countries imported to Viet Namand products manufactured in Viet Nam if they bothhave been manufactured by the protected processwithout permission of the owner.These provisions are consistent with the TRIPS
Agreement.
Article 5quinquies requires that Paris Members protect
industrial designs.Industrial designs are protected under provisions of the
Civil Code, Decree No. 63/CP and its implementing
regulations.These provisions are consistent with the TRIPS
Agreement.
Article 6 makes the conditions for filing and registration
of trademarks subject to domestic legislation but also
makes filing and registration independent of those inother countries, including the country of origin.Vietnamese trademark laws and regulations provide
trademark filling and registration procedures which are
independent of corresponding procedures in othercountries, including the country of origin.This provision is consistent with the TRIPS Agreement.
Article 6bis requires parties, ex officio if legally possible
or at the request of an interested party, to refuse toregister or, for a period of at least 5 years, to cancel theregistration of a trademark confusingly similar to a well-
known mark. No time limit is placed on a mark use in
bad faith.Decree No. 63/CP (Section 6.1.e):
A sign does not satisfy the conditions for registration if
it is identical with, or confusingly similar to, another
person's trademark recognized as a well-known
trademark.
Decree No. 63/CP (Section 28):
A Trademark Registration Certificate shall be
invalidated at third party's request if the trademark doesnot satisfy protection requirements.
Decree No. 63/CP (Section 6):
A well-known mark is any mark which is continuously
used for reputable goods and services, and therefore,becomes widely known.These provisions are consistent with the TRIPS
Agreement.WT/ACC/VNM/21/Rev.1
Page 8TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
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Article 6ter requires Members to refuse to register or to
invalidate the registration that includes, without
authorization, armorial bearings, flags, state emblems,official signs and hallmarks, etc.. An exception isprovided for owners of rights acquired in good faithbefore the Convention entered into force for thatcountry.Decree No. 63/CP (Section 6.2.e. 6.2.f):
The following signs shall not be protected as trademark:
- signs identical with or similar to quality marks,
control marks, warranty marks etc. of Viet Nam,foreign countries or international organizations;
- signs confusingly similar to the image of national
flags, national emblems… unless the use of thoseis permitted by the competent authorities.These provisions are consistent with the TRIPS
Agreement.
Article 6quarter makes the assignment of a mark valid if
the portion of the business or goodwill of the businesstogether with the exclusive right to manufacture and sellthe goods bearing the mark are also transferred.Vietnamese industrial property laws and regulations do
not provide that the assignment of a trademark shall becarried out along with the transfer of the business or thegoodwill of the business.The prevailing laws and regulations are consistent with
the TRIPS Agreement.
Article 6quinquies requires that trademarks duly registered
in a Member be accepted for filing in other Members,
with certain reservations, and establishes the conditions
under which a trademark may be denied registration ormay be invalidated.Vietnamese industrial property laws and regulations do
not have provisions on limitation of filling of trademarks
registered in a Member.
Decree No. 63/CP (Section 6):Conditions for refusal of registration, termination orinvalidation of a trademark, are consistent with Section6
quinquies Paris Convention and applied for all trademarks
registered or not in other countries.The prevailing laws and regulations are consistent with
the TRIPS Agreement.
Article 6sexies states that Paris Members "undertake" to
protect service marks without being required to provide
for their registration.Civil Code (Section 785):
A trademark is a sign that is used to distinguish goods or
services of the same kinds from different businesses.Trademark laws and regulations, including provisionson procedures for registration, are applied to bothtrademarks and service marks.These provisions are consistent with the TRIPS
Agreement.WT/ACC/VNM/21/Rev.1
Page 9TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
Article 6 septies requires that trademark owners be able to
oppose or request cancellation of a registration or their
trademarks applied for by their agent or representativewithout their authorization "unless the agent orrepresentative justifies his action".There is no provision on the opposition of a trademark
registration of a foreign owner applied for by his agent
or representative.However, according to Section 837 the Civil Code,foreigner‘s trademarks shall be protected under the lawof Viet Nam and the international treaties to which VietNam is party.
Therefore, based on Section 6 
septies Paris Convention,
the trademark owner has the right to oppose the grant ofa Trademark Registration Cert ificate (under procedures
provided for in Section 27 Decree No. 63/CP), torequest invalidation of the Trademark RegistrationCertificate (under procedures and conditions provided
for in Section 29 Decree No. 63/CP).The prevailing laws and regulations are consistent with
the TRIPS Agreement.
Article 7 states that the nature of the goods to which a
trademark is applied may in no case be an obstacle tothe registration of the trademark. (Duplicate language isin TRIPS Article 15.4)There is no provision that permits to refuse the grant of
a Trademark Registration Certificate on the ground ofnature of the goods, services.The prevailing laws and regulations are consistent with
the TRIPS Agreement.
Article 7bis requires that Members permit registration of
collective marks belonging to associations the existenceof which is not contrary to the law of the country of
origin, even where the association is not established in
the country where protection is being sought.Decree No. 63/CP (Section 14.2.d):
The right to apply for registration of a collective markshall belong to the natural or legal persons representing
the collective of natural or legal persons, or other
entities who abide by a common regime for the use ofthe respective trademark.An association may also be considered as a collective,
and therefore, has the right to apply for registration of acollective mark. There is no provision that requires the
association be established in Viet Nam.These provisions are consistent with the TRIPS
Agreement.
Article 8 requires that trade names be protected byMembers without the necessity of registration, whetheror not the names are part of a trademark.Decree No. 54, Decree No. 54/2000/ND-CP (Section 5):
The industrial property rights to trade names shall beautomatically established when all requirements are metwithout necessarily being registered   at the competentState agencies.There is no provision discriminating trade names as to
whether or not they are part of a trademark.These provisions are consistent with the TRIPS
Agreement.WT/ACC/VNM/21/Rev.1
Page 10TRIPS AgreementViet Nam
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Article 9 requires seizure on importation of exclusion of
goods bearing a trademark or trade name without
authorization, unless a country's laws provide for neitherremedy, in which case domestic actions and remediesmust be available.Decree No. 12/1999/ND-CP (Section 12):
Customs Officer can take measures against the
importation of goods bearing a trademark withoutauthorization.Decree No. 54/CP (Section 21):The industrial property owner of a trade name has theright to request infringements upon industrial property
rights to that trade name be handled.
Measures for industrial property border controls inrelation to the import and export of goods shall beprovided for in Joint Circular of the Ministry of Scienceand Technology and the Ministry of Finance.These provisions are consistent with the TRIPS
Agreement.
This Draft Joint Circular is expected to be finalised and
submitted for promulgation in late 2003.
Article 10 applies the obligation of Article 9 to the director indirect use of false indications of source of goods, or
false indication of the producer, manufacturer, or
merchant of such goods.Decree No. 54/CP (Section 24.1):
Acts of industrial property-related unfair competition
consist of using of trade indications in order to misleadthe perception and information on business entities,business establishments, business activities, goodsand/or services, for the purposes of:
- Taking advantage of the prestige and reputation of
other producers and/or business entities in one’sbusiness activities;
- Damaging the prestige and reputation of other
business entities;
- Creating confusion about origins, production
methods, properties, quality, quantity or other
characteristics of goods and/or services; or aboutconditions for supply of goods and/or services... toconsumers in the course of recognizing andselecting goods and/or services or business
activities.
Decree No. 54/CP /CP (Section 25):The organizations and individuals that do or likely to
suffer from damage by unfair competition acts in the
field of industrial property shall be entitled to request
the competent State bodies for injunctions and damages,administrative remedies or penal liability against theThese provisions are consistent with the TRIPS
Agreement.WT/ACC/VNM/21/Rev.1
Page 11TRIPS AgreementViet Nam
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person who commits unfair competition acts.
Consumers’ associations and professional associations
of organizations and individuals may exercise theabove-mentioned right on behalf of their own members.
Decree No. 54/CP /CP (Section 27):
The organizations and individuals that commit unfair
competition acts in the field of industrial property shall,depending on the nature and seriousness of such acts, beadministratively handled or prosecuted for penalliability. If any damage is caused, compensationstherefore must be made according to the provisions of
law.
The above-mentioned provisions apply to goods both
imported and domestic.
Article 10bis requires Members to provide protection
against unfair competition, including against acts thatcreate confusion of various kinds about the goods or
activities of a competitor, that consist of false
allegations about a competitor, or that are apt to misleadthe public regarding a competitor's goods.Decree No. 54/CP /CP (Section 24.1):
Acts of industrial property-related unfair competition
consist of using of trade indications in order to mislead
the perception and information on business entities,business establishments, business activities, goodsand/or services, for the purposes of:
- Taking advantage of the prestige and reputation of
other producers and/or business entities in one’s
business activities;
- Damaging the prestige and reputation of other
business entities;
- Creating confusion about origins, production
methods, properties, quality, quantity or other
characteristics of goods and/or services; or aboutconditions for supply of goods and/or services... toconsumers in the course of recognizing andselecting goods and/or services or businessactivities.
Decree No. 54/CP /CP (Section 25):These provisions are consistent with the TRIPS
Agreement.WT/ACC/VNM/21/Rev.1
Page 12TRIPS AgreementViet Nam
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The organizations and individuals that do or likely to
suffer from damage by unfair competition acts in the
field of industrial property shall be entitled to requestthe competent State bodies for injunctions and damages,administrative remedies or penal liability against theperson who commits unfair competition acts.Consumers’ associations and professional associations
of organizations and individuals may exercise the
above-mentioned right on behalf of their own members.
Decree No. 54/CP /CP (Section 27):The organizations and individuals that commit unfair
competition acts in the field of industrial property shall,
depending on the nature and seriousness of such acts, beadministratively handled or prosecuted for penalliability. If any damage is caused, compensationstherefore must be made according to the provisions of
law.WT/ACC/VNM/21/Rev.1
Page 13TRIPS AgreementViet Nam
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Article 10ter requires that Members undertake to assure
to foreign nationals effective legal remedies to repress
actions referred to in Articles 9, 10 and 10bis, and to
allow federations and associations representing foreignbusinesses, on the basis of reciprocity, to take action incourt and before administrative authorities to represssuch acts.Civil Code (Section 796):
The owner of an industrial property object shall be
entitled to request a competent State authority forinjunctions and damages against infringer.
Decree No. 63/CP(Section 54):
Industrial property rights shall be protected by the State.
Any act of infringement of an industrial property rightshall be strictly prohibited and shall be dealt with inaccordance with legal provisions. Action againstindustrial property right infringement shall be carried
out according to laws and regulations on civil
procedures.
Any enforcement measures and remedies are applied for
all industrial property owners without discrimination
between Vietnamese and foreigners.
Decree No. 54 Decree No. 54/2000/ND-CP (Section
25.2):
Consumers’ associations and professional associations
of organizations and individuals may, on behalf of their
own members, exercise the right to request thecompetent authorities for enforcement of rights againstunfair competition.WT/ACC/VNM/21/Rev.1
Page 14TRIPS AgreementViet Nam
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Article 11 requires that temporary protection, consistent
with domestic legislation, be afforded to patentable
inventions, utility models, industrial designs andtrademarks in respect of goods exhibited at official orofficially recognized international exhibitions held intheir territory.Decree No. 63/CP (Section 17):
Applicants for a Protection Title for an invention, utility
solution, industrial design or trademark may claimpriority on the basis of an exhibition of the objectdescribed in the application at  an official, or officially
recognized international exhibition, organized in VietNam or another country. Applicants shall submit
certification of display at an exhibition within 3 month
from the filling date.These provisions are consistent with the TRIPS
Agreement.
Article 12 requires Members to establish industrial
property offices for patents, utility models, industrialdesigns and trademarks for the communication to thepublic through publication of a periodic journal of thenames of patent owners with a brief designation of their
inventions, and the reproduction of trademarks.National Office of Industrial Property of Viet Nam
established in 1982 is the competent authorityresponsible for carrying out procedures relating to thegrant of Protection Titles with regard to industrialproperty objects and organizing industrial property
information activities, including the publication of
Industrial Property Official Gazette with the contentsconsistent with the requirements stipulated in Article 12Paris Convention.Viet Nam satisfies this requirement of the TRIPS
Agreement.
Article 19 authorizes Members to enter into separate andspecial industrial property agreement among themselves,so long as those agreements do not contravene the
provisions of Paris.Viet Nam has singed bilateral agreements on intellectual
property protection with Switzerland and United State ofAmerica. The industrial property protection provisions
of the agreements are not contrary to those of the Paris
Convention.Viet Nam satisfies this requirement of the TRIPS
Agreement.
National treatment, with exceptions allowed in the Paris,Berne and Rome Conventions.Article 3- Decree No. 63/CP (Section 67.1.a) and Decree
4/2000/ND-CP (Section 2.2.a):
Foreign natural or legal persons that enjoy the rights in
accordance with the Paris Convention shall have the
right to request protection for their industrial property
rights in Viet Nam and shall enjoy all such rights and besubject to all such obligations as Vietnamese entities.
- Circular No. 23/TC-TCT of 9 May 1997 on
industrial property fees and charges
There is difference in the rates of industrial property
fees and charges that apply to Vietnamese andforeigners.The draft Joint Circular on amendment of the Circular
23/TC-TCT of 9 May 1997 proposing the annulment of
discrimination of fees and charges between Vietnameseand foreigners is expected to be finalised andpromulgated in late 2003.
Most favoured nation treatment, with enumeratedexceptions. Article 4.Vietnamese laws and regulations have no provision
discriminating foreign entities.WT/ACC/VNM/21/Rev.1
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Trademarks
Provide trademark or service mark protection for anysign, or combination of signs capable of distinguishing
the goods or services of one undertaking from those of
other undertakings. Article 15.1Civil Code ( Section 785):
A trademark consists of the symbols that are used to
distinguish goods or services of the same kind made by
different producers. A trademark can be words, imagesor a combination thereof expressed in one or severalcolours. In fact, any visible, distinguishable signs maybe protected as trademarks.These provisions are consistent with the requirement of
TRIPS Agreement
Not deny registration for a mark based solely on thenature of the goods or services to which a trademark is
to be applied. Article 15.4According to the Civil Code and Decree No. 63/CP, the
nature of the goods/services bearing a trademark do not
constitute the ground for refusal of registration of a
trademark. In fact, the nature of the goods or services isonly one of the bases for determining whethergoods/services are of the same kind.These provisions are consistent with the requirement of
TRIPS Agreement
Trademarks must be published before or shortly afterregistration to permit opposition or opportunity to applyfor cancellation. Article 15.5Decree No. 63/CP (Section 31.2):
The information published in the Official Gazette of
Industrial Property  relates to :
a) Applications for Protection Titles which have been
officially accepted;
b) Protection Titles granted and registered,
trademarks protected in Viet Nam through
registration under the Madrid Agreement or other
international agreements to which Viet Nam isparty;
Decree No. 63/CP (Section 20):
During the period of substantive examination, any third
party shall have the right to present opinions in relationto the grant or refusal of a Protection Title toapplications which have been published in the OfficialGazette of Industrial Property.
Decree No. 63/CP (Section 29.1):
Any third party shall have the right to file an application
requesting the National Office of Industrial Property tocancel the validity of a Protection Title for the reasonThese provisions are consistent with the requirement of
TRIPS AgreementWT/ACC/VNM/21/Rev.1
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that such Protection Title has been granted contrary to
the provisions of law.
Provide trademark owners the exclusive right to preventunauthorized use identical or similar marks for similar
goods or services of other parties if confusion is likely toresult. Article 16.1Decree No. 63/CP (Section 53):
The following acts shall also be considered as
infringements of trademark rights:
Using signs identical with a trademark being protected
by a Certificate for trademark registration or by an
international registration for goods, included servicessimilar to or relating to the goods and services in the listregistered together with the mark or/and using signssimilar to the trademark for goods and services of thesame kind, similar to or relating to goods and services
included in the list registered together with the mark, if
such use would lead to confusion of the origin of goods.These provisions are consistent with the requirement of
TRIPS Agreement
Presume confusion where an identical mark is used
without authorization on identical goods or services.(Article 16.1)Decree No. 63/CP (Section 53.1):
Any acts of using the trademark as provided for in
Section 805 of Civil Code and as detailed in Section 34of the Decree within the term of protection, and without
permission of the trademark owner shall be considered
as infringement of the trademark right.These provisions are consistent with the requirement of
TRIPS Agreement
Provide protection for well known trademarks andservices marks in accordance with Article 6
bis of the
Paris Convention, even where use is on goods orservices which are not similar to those in respect ofwhich a trademark is registered if the latter use would
imply a connection with the right holder or would be
likely to  damage the right holder's interests. (Article16.2 and 3).Decree No. 63/CP (Section 6.1.e):
One of the conditions for a sign to be recognized as
capable of distinguishing is that it is not identical with,or confusingly similar to another person's trademark
recognized as a well-known  trademark in accordance
with Article 6
bis Paris Convention.
Decree No. 63/CP (Section 2.8.b):A well-known mark is any mark which is continuously
used for reputable goods and services so that it becomes
widely known.
Decree No. 63/CP (Section 8.3):Rights over a well-known mark arise on the basis ofThese provisions are consistent with the requirement of
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recognition by the State competent authority of a well-
known mark.
Decree No. 63/CP (Section 10.1):Industrial property rights over a well-known mark are
protected indefinitely after the mark is recognized as a
well-known as stated in the Decision on recognition of a
well-known mark.
Decree No. 63/CP (Section 53.1):The following acts shall be considered as infringement
of well-known mark rights: using signs identical with or
similar to a well-known mark or signs in the form oftranslation or transliteration of the mark for any goodsand services, including goods and services of differentkinds, dissimilar to or related to goods and services
belonging to the list of reputable goods and services
bearing the well-known mark, if such use is likely tocreate confusion about the origin of goods or wrongimpression on the relationship between the user of suchsigns and the owner of the well-known trademark.
Allow only limited exceptions to the rights conferred bya trademark such as fair use of descriptive terms.(Article 17)According to  Section 803 Civil Code and  Section 52.2
Decree No. 63/CP, the following acts shall not beconsidered as being within the scope of the exclusive
rights belonging to the trademark owner:
- using of a trademark for non-commercial purpose;
- using of products having been put into the market
place, including foreign markets, by the owner of
the industrial property rights or his licensees.
Unfair use of descriptive terms identical with or similar
to a protected trademark may be considered as unfaircompetition acts as provided for in  Section 24 DecreeNo. 54/2000/NDD-CP: Acts of industrial property-
related unfair competition include:
 "1. Using commercial indications to mislead theThese provisions are consistent with the requirement of
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perception and information about business entities,
business establishments, business activities, goods
and/or services, for the purposes of:
a) Taking advantages of the prestige and reputation of
other business entities in one's production and/orbusiness activities;
b) Damaging the prestige and reputation of other
business entities;
c) Creating confusion about origins, production
methods, properties, quality, quantity or othercharacteristics of goods and/or services; or aboutconditions for supply of goods and/or services to
consumers in the course of recognizing and
selecting goods and/or services or businessactivities."
A period of protection for registration of at least sevenyears renewable indefinitely. (Article 18).Decree No 63/CP ( Section 9.2.e):
Protection Titles for trademarks are Trademark
Registration Certificates with the term of validity
beginning on the date of grant, expiring at the end of 10
years counted from the official filing date and renewableindefinitely for consecutive terms of 10 years.
Circular No. 3055/TT-SHCN (Items 13.8 and 16.5):
Time limit for the grant of Certificate for a Trademark
Registration is 12 months counted from the officialfiling date.These provisions are consistent with the requirement of
TRIPS Agreement
Allow cancellation for non-use only after a period ofthree years of uninterrupted non-use unless valid reasonsexist for the non-use, including Government interferencewith use. (Article 19.1).Decree No. 63/C (Section 28.2.c):
The validity of a Certificate for a Trademark
Registration shall be terminated in case the owner of a
Trademark Registration Certificate has not used the
trademark without legitimate reasons for 5 consecutiveyears prior to the request for termination of validity. Insuch a case, the validity of the Certificate shall beterminated from the first day after such period of 5
years.These provisions are consistent with the requirement of
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No encumbering of the use of a trademark by special
requirements. (Article 20).There are no special requirements for the use of
trademark in the prevailing laws and regulations on the
trademark protection of Viet Nam.These provisions are consistent with the requirement of
TRIPS Agreement
May establish conditions for licensing but compulsory
licensing not permitted, and owner of registered markmust be able to assign it with or without transfer ofbusiness. (Article 21).Decree No. 63/CP (Section 35):
The trademark owner shall be entitled to transfer the
right to use of the trademark entirely or in part to othernatural or legal persons or other entities.
Transfer of the right to use a trademark shall be effected
through a written contract ("licensing agreement"). Alicensing agreement shall have legal effect only uponregistration with the National Office of IndustrialProperty.
Decree No. 63/CP (Section 37 and 38):
Ownership rights over a trademark may only be
inherited by a single natural or legal person or a singleother entity. The successor to the ownership right over
the trademark has to meet the requirements for the right
to apply for the respective Protection Title.The owner of a trademark shall not relinquish his or herright therein when subject to a valid license, unless thelicensee agrees to the termination of the licensingagreement before its due expiry date.
The transfer of industrial property rights over
trademarks shall not cause confusion over thecharacteristics or origin of the goods or services suchtrademarks are used for.The transfer of the ownership right over an associated
mark shall be concurrently carried out together with all
associated marks;The transfer of the ownership right over a well-knownmark must ensure the goodwill of the goods and servicesbearing the well-known mark.There is no provision permitting the grant of non-
compulsory license of a trade mark in the prevailing
laws and regulations of Viet Nam.These provisions are consistent with the requirement of
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Geographical Indications
Provide means to prevent deceptive use of geographicalindications identifying location where a given quality,
reputation or other characteristic of a goods is
attributable to its location. Article 22.1 and 2.Decree No. 54/2000/ND-CP (Section 10):
Protected geographical indications are the information
on geographical origins of goods that satisfies all thefollowing conditions:
a) Being expressed in a word, phrase, sign, symbol or
device which serves to indicate a country or a
region, locality of a country;
b) Being presented on a good, packages of the good
or transaction papers relating to purchase or sale ofthe good to indicate that the good originates from acountry, region or locality where the peculiar
characteristics of quality, reputation, fame, or other
characteristics of the good are essentiallyattributable to its geographical origin.
Decree No. 54/2000/ND-CP (Section 19):
Acts of infringement of industrial property right over
geographical indications include:
1. Using any commercial indications which are
identical with or similar to protected geographicalindications, creating wrongful impression of the
geographical origin of goods;
2. Using any commercial indications which are
identical with or similar to protected geographicalindications for identical, similar or related goods,without ensuring reputation, fame of the goods
bearing such geographical indications, even where
such indications are accompanied by expressionssuch as "method", "type", "style", "limitation", orthe like.
Decree No. 54/2000/ND-CP (Section 21):
The persons having the right to use geographical
indications shall be entitled to request from theThese provisions are consistent with the requirement of
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competent State Bodies injunction and damages against
persons who commit acts of infringing upon their rights.
In cases where the use of geographical indicationsresults in consumer's confusion, such consumers mayrequest from the competent state bodies injunction anddamages against the persons who commit the above-saidacts.
The handling of infringing acts of industrial property
right over geographical indications shall be carried outin accordance with procedures for handling infringingacts of other industrial property rights.
Decree No. 63/CP (Section 53.1):
Persons not having the right to use an appellation of
origin, committing one of the using acts of appellationof origin as provided for in  Section 805 of Civil Code
and as detailed in Section 34 of this Decree within the
term of protection shall be considered as havingcommitted an act of infringement.WT/ACC/VNM/21/Rev.1
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Protect, with certain exceptions, appellations of origin
for wines or spirits even against use accompanied by
expressions such as "kind", "type", "style", etc. (Article23.1 and 24)Decree No. 54/2000/ND-CP (Section 19.3):
Infringement acts of industrial property right over
geographical indications incl ude the use of geographical
indications of wines or spirits for those not originatingin indicated territories, even where the true origin ofgoods is indicated, or geographical indications are used
in translation or accompanied by expressions such as
"type", "style", "kind", "limitation", or the like.
Decree No. 63/CP (Section 47.1.b):Persons who has been granted a Certificate of the Right
to use an appellation of origin shall have the right  to
request the competent State authority to compel otherpersons to stop infringing acts and pay compensation fordamage caused by the illegal use of such appellation oforigin or signs confusingly similar thereto, including the
case where the true origin of the product is indicated or
the appellation of origin is translated into anotherlanguage or the use is accompanied by "kind", "type","imitating", or the like.These provisions are consistent with the requirement of
TRIPS Agreement
Refuse to register or invalidate registrations of
trademarks containing geog raphical indications except
in instances in which such marks have been usedcontinuously for at least 10 years or in good faith before
April 15, 1994. (Article 22.3.)Decree No. 63/CP (Section 6.1.f):
One of the requirements for a sign to be recognised as
capable of distinguishing is that it is not identical with,
or confusingly similar to protected geographical
indications (including appellations of origin).These provisions are consistent with the requirement of
TRIPS AgreementWT/ACC/VNM/21/Rev.1
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Industrial Designs
Provide, with certain exceptions, protection for new ororiginal, independently created industrial designs.
Article 25.1.Civil Code ( Section 784):
An industrial design is the shape of a product that is
expressed by lines, three-dimensional form and colours,or a combination thereof, and that has world-widenovelty and served as a pattern for making industrial orhandicraft products.
Ensure that requirements for securing protection fortextile designs are not prohibitive of such protection.
Article 25.2Textile designs are protected in the same manner as any
other industrial designs. There is no specific provision
for the protection of textile designs in the prevailing
laws and regulations. The requirements for theestablishing rights in industrial designs are reasonable.These provisions are consistent with the requirement of
TRIPS Agreement
Protection should last at least 10 years Decree No. 63/CP (Section 9.2.c):
Protection Titles for industrial designs are Patents for
Industrial Designs with the term of validity beginning on
the date of grant and expiring at the end of 5 years
counted from the official filing date and renewable fortwo consecutive terms of 5 years.
Circular 3055/TT-SHCN ( Items 13.8 and 16.5):
Time limit for granting Patents for industrial designs is
12 months counted from the official filing date.These provisions are consistent with the requirement of
TRIPS AgreementWT/ACC/VNM/21/Rev.1
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Patent
Provide patents for any inventions, whether products orprocesses, in all fields of technology if they are new,
involve an inventive step and are industrially applicable.
Exceptions are permitted for plants and animals, exceptfor microorganisms and non-biological andmicrobiological processe s. Exemptions are also
permitted for reasons of order public and morality.
Article 27Civil Code ( Section 782):
An invention is a technical concept that is distinguished
by having world-wide novelty in terms of the presentstate of technological development and, and is non-obvious, and is applicable to various social andeconomic fields.
Decree No. 63/CP (Section 4.1, 4.2 and 4.3):
There are detailed criteria for determining novelty,
inventive step and industrially applicability of atechnical solution.
Decree No. 63/CP (Section 4.4):
Subject-matters excluded from patentability include:- scientific concepts, principles and discoveries;
- methods and systems for economic organisation
and management;
- methods and systems for education, teaching and
training;
- methods for the training of animals;- systems in regard of linguistics, information,
classifications and compiling of documentation;
- designs and planning schemes for construction
works, projects for regional development andplanning;
- solutions concerning only the shape of articles and
being of an aesthetic nature only;
- conventional signs, timetables, rules and
regulations and symbols;
- computer software, layout designs of integrated
circuits, mathematical models, graphs and the like;
- plant or animal varieties;
- methods for the prevention, diagnosis or treatment
of diseases for human being, animals;
- essentially biological processes for the productionThese provisions are consistent with the requirement of
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of plants or animals other than microbiological
processes.
Civil Code ( Section 787):The industrial property subject-matters which are
contrary to social interest, public order, and  principles
of social humanity shall not be protected.
Provide patent owners with the right to prevent others
from making, using, offering for sale, selling, orimporting a patented products or from using a patentprocess or using, offering for sale, selling or importing aproduct produced directly using such process. (Article28.1)Decree No. 63/CP (Section 53):
The person other than the owner of a patent committing
one of the using acts as provided for in Section 805 ofCivil Code and as detailed in Section 34 of the Decreewithin the term of protection, and without permission of
the owner or without a right of prior use as provided for
in Section 50 of the Decree shall be considered ashaving committed an act of patent right infringementunless one of the exceptions mentioned in Sections 51,52 of the Decree does apply. The acts of using inventionare provided for in  Section 34 Decree No. 63/CP, as
follows:
- manufacture of a protected product;
- application of a protected process;- exploitation of a protected product;- putting into circulation; advertising, offering or
storing for sale a protected product or a product
manufactured by a protected process;
- importing a protected product or a product
manufactured by a protected process.These provisions are consistent with the requirement of
TRIPS Agreement
Give patent owners the right to assign the rights in thepatent, or transfer the rights succession, or license them.Article 28.2.Civil Code ( Section 796.2):
The ownership of inventions can be inherited or
transferred to other persons.
Civil Code ( Section 796.1.b):The owners of inventions shall have the right to transfer
the right to use the patented invention to other persons.These provisions are consistent with the requirement of
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Require applicants to disclose the invention so that one
skilled in the art can carry it out and may require
indication of the best mode and information oncorresponding foreign applications. Article 29Circular 3055/TT-SHCN ( Item 6.3):
The description must totally reveal the nature of the
technical solution requested to be protected. Thedescription must provide information to such an extentthat based on which a person with the average skill inthe corresponding technical area can apply such
solution.
The description must clarify the novelty, inventive step
and applicability of the technical solution requested tobe protected.These provisions are consistent with the requirement of
TRIPS Agreement
Ensure that nay exceptions to exclusive patent rights do
not unreasonably conflict with normal exploitation of
the patent and do not unreasonably prejudice the
legitimate interest of the patent owner, taking third partyinterests into account. Article 30.Civil Code ( Section 801) and Decree No. 63/CP
(Section 50):
If before the filing date of an application for a Protection
Title for an invention, a natural or legal person oranother entity has used the invention independentlyfrom the owner, such natural or legal person or suchother entity has the right to continue the use within the
scope and volume of use before filing date (the prior
user's right). The owner of Protection Title shall notexercise his or her right to initiate an action orprovisional right against such natural or legal person orother entity after the grant of the Protection Title,provided that the scope or volume of use has not been
increased in comparison with the period before the filing
date of application.
If after the filing date of an application for a patent, such
natural or legal person or other entity  increases the
scope or volume of use of the invention in comparison
with the scope or volume of use before such date, theincreased part shall not be covered by the right of prioruse.
The prior user's right shall not be transferred to other
persons unless it is done together with the undertaking
where the prior use has been carried out.These provisions are consistent with the requirement of
TRIPS AgreementWT/ACC/VNM/21/Rev.1
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According to  Section 803 of Civil Code and  Section
52.1 Decree No. 63/CP, the following acts shall not be
considered as patent infringements:
- the use for non-commercial purpose;
- the use of products that have been put into the
market place including foreign markets by the
owner of the patent, licensee, non-voluntary
licensee or the person entitled to the prior use;
- the use for maintaining operations of foreign
transport means temporarily entering or being inthe territory of Viet Nam.
Compulsory licenses can be issued only whenenumerated conditions are met, including such things as
notice, remuneration, limitations on use and transfer of
the license, etc. (Article 31).Decree No. 63/CP (Section 51.2):
- The grant of a non-voluntary license shall be
effected only subject to the conditions provided forin  Section 802 of Civil Code (The owner fails touse the invention or his use fails to meet the needof socio-economic development of the countrywithout legitimate reasons; The owner refuses
licensing in spite of efforts made by the person
having demand for such use to negotiate, includingby offering reasonable royalties; The use is to meetthe needs of national defense, national security,diseases prevention, treatment for people and otherurgent social needs).
- The grant of a non-voluntary license shall not be
effected until the end of 4 years counted from thefiling date and 3 years counted from the grant date.
- The person who is compelled to grant a non-
voluntary license has the right to request for
cancellation of the license’ validity when the
conditions for granting the license have ceased andare not likely to recur, provided that thecancellation shall not be prejudicial the licensee.
Decree No. 63/CP (Section 51.3):
- The Ministry of Science, Technology is the
competent State body having authority to considerThis provision has complied with the requirement of
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requests for permission of use of an invention and
to issue a decision ordering the owner to grant a
non-voluntary license.
Decree No. 63/CP (Section 51.6):- In the decision ordering a non-voluntary license to
be granted, the Minister of Science, Technology
shall fix the license terms in accordance with thefollowing provisions:
a) Non-voluntary licenses shall be non-exclusive;
b) The scope and duration of a non-voluntary license
shall be limited to the purpose for which it was
granted;
c) The party to which a non-voluntary license is
granted shall not transfer the right to use theinvention under a non-voluntary to others, except
with the undertaking which enjoys such use, and
shall not sublicense.
d) The party to which a non-voluntary license is
granted shall remunerate the licensor an amount ofmoney corresponding to the economic value of theright to use the invention and the license or
equivalent to royalties of contractual licenses with
the same scope and terms.
- The decision ordering a non-voluntary license to be
granted shall be published in the Official Gazetteof Industrial Property within 1 month from the
issuing date.
Decree No. 63/CP (Section 51.7):- Within 1 month from the date the Minister of
Science, Technology issues the decision ordering a
non-voluntary license to be granted, the owner of
an industrial property right, or the holder of rightover the whole invention shall grant a license onthe conditions stipulated the decision.WT/ACC/VNM/21/Rev.1
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Decree No. 63/CP (Section 51.8):
- The person who is compelled to grant a non-
voluntary license has the right to appeal thedecision on such license to the Minister of Science,Technology.
Provide an opportunity for judicial review of  any
decision to revoke or forfeit a patent. Article 32.Decree No. 63/CP (Section 27. 4, Section 28 and Section
29):
The Decisions on termination or cancellation of validity
of a patent by the National Office of Industrial Propertymay be either brought to administrative court or furtherappealed to the Minister of Science, Technology,
depending on the choice of the appellant.These provisions are consistent with the requirements of
TRIPS Agreement.
Provide a patent term of at least 20 years from the filingdate. Article 33.Decree No. 63/CP (Section 9.1.a):
Protection Titles for inventions are Patents for
Inventions with the term of validity beginning on thedate of grant and expiring at the end of 20 years countedfrom the official filing date.These provisions are consistent with the requirement of
TRIPS Agreement
Shift the burden of proof in process patent infringement
actions to the defendant in instances in which the
product produced by the process is new or where it is
substantially likely that the identical product was madeusing the process and the patent owner has been unablethrough reasonable efforts to determine the process
used. Article 34.According to prevailing laws and regulations on civil
prosecuting procedures of Viet Nam, the burden of
proof is on the plaintiff, rather than the defendant.Provisions complying with Article 34 of the TRIPS are
to be provided for in a Joint Circular of the Supreme
People’s Court, the Supreme People’s Prosecution
Institute and the Ministry of Science and Technology(expected to be promulgated in 2003), or the CivilProcedures Code (expected to be promulgated in 2004).WT/ACC/VNM/21/Rev.1
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Layout Design of Integrated Circuits
Provide protection for original layout designs ofintegrated circuit that are registered or have been
commercially exploited anywhere in the world. Articles
3, 4, 5 and 7 of the Washington Treaty as incorporatedinto TRIPS by Article 35.Decree 42/2003/ND-CP (Section 4):
1. The subject matter of protection under this Decree
is any layout-design that is original.
2. A layout-design shall be considered to be original
if it fully satisfies the following conditions:a) It is the result of its creator’s own intellectual
effort;
b) It is not widely known among creators of lay-out designs or manufacturers of semiconductorintegrated circuits at the time of its creation.
Decree 42/2003/ND-CP (Section 6):
Industrial property rights in layout-designs shall be
established on the basis of a Layout-design ProtectionTitle issued by the National Office of Industrial Propertyunder the Ministry of Science and Technology.These provisions are consistent with the requirements of
TRIPS Agreement.
Make unlawful, except in certain circumstances, thereproduction, importation, sale or other distribution of a
protected layout design or an integrated circuit
embodying such design or an article containing such amicrocircuit. Article 6 of Washington and Article 36 ofTRIPS.Decree 42/2003/ND-CP (Section 22):
The exclusive right to use a layout-design of the owner
referred to in Section 21 of this Decree implies the rightto perform or prevent other persons from performing forcommercial purposes any of the following acts inrespect of the protected layout-design:
1. The reproduction of the protected layout-design or
the manufacture of a semiconductor integratedcircuit by using the protected layout-design;
2. The distribution and importation of a copy of the
protected layout-design or a semiconductorintegrated circuit manufactured by using the
protected layout-design or an article incorporating
such a semiconductor integrated circuit.
Decree 42/2003/ND-CP (Section 27.1):
Any act of using a protected layout-design as provided
for in Section 22 of this Decree committed within theThese provisions are consistent with the requirements of
TRIPS Agreement.WT/ACC/VNM/21/Rev.1
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term of protection without permission of the owner shall
be considered as an act of infringement of the owner’s
industrial property rights in the layout-design, unless itfalls under the exceptions provided for in Section 28 ofthis Decree.
Provide such protection for a term of 10 years from thefiling of an application for registration of from firstcommercial exploitation. Article 38.Decree 42/2003/ND-CP (Section 7.2):
A Protection Title takes effect on the date of granting
and expires on the following dates depending on
whichever comes earlier:
a) The end of 10-year period counted from the date of
the granting of the Protection Title;
b) The end of a 10-year period counted from the date
the integrated circuit was first commercially
exploited in the world by the person who has theright to file application for a Protection Title or theperson who has obtained this permission;
c) The end of a 15-year period counted from the date
of creation of the layout-design.
There is a lack of provisions on procedures of
establishing the industrial property rights to layout-design.These provisions are consistent with the requirements of
TRIPS Agreement.
A Circular of the Ministry of Science and Technology
on guiding the implementation of the Decree42/2003/ND-CP of 2 May 2003 is expected to bepromulgated by the end of 2003.WT/ACC/VNM/21/Rev.1
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Undisclosed Information
Provide protection for undisclosed information that issecret (not generally known or readily ascertainable);
has commercial value because of its secrecy; and has
been subject to reasonable  steps to keep it secret.
(Article 39.2).Decree No. 54/2000/ND-CP (Section 6):
Protectable business secrets are investment results in the
form of information satisfying all the followingconditions:
a) It is not common knowledge;
b) It is applicable to business activities and when
used, it renders its holder advantages over thosewho do not hold or use such information;
c) It is kept secret by its owner with necessary
measures so that it shall neither be disclosed noreasily accessible.
The owners of industrial property right over business
secrets shall be entitled to request from the competentState Bodies injunction and damages against personswho commit acts of infringing upon their rights.These provisions are consistent with the requirement of
TRIPS Agreement
Protect data submitted to obtain marketing approval forpharmaceutical or agricultural chemicals utilizing a new
chemical entitr. (Article 39.3)Decree No. 54/2000/ND-CP (Section 18.4) :
The following acts shall be considered as infringement
of industrial property right over business secret and shallbe remedied: Accessing, acquiring others’ informationof business secret submitted for approving the doingbusiness in respect of or the marketing of products,especially pharmaceutical products and agricultural-
chemical products, by taking acts against secret-keeping
measures of administrative agencies, or using suchinformation for the commercial purposes, including forobtaining approval of the doing business in respect of orthe marketing of products.
As there is still lack of provisions guiding the
implementation the provisions on the new andunspecified undisclosed information, it is difficult toenforce them in practice.These provisions are consistent with the requirement of
TRIPS Agreement.
A Circular of the Ministry of Science and Technology
on guiding the implementation of provisions onundisclosed information of the Decree No. 54DecreeNo. 54/2000/ND-CP of 3 October 2000 is expected to bepromulgated by the end of 2003.WT/ACC/VNM/21/Rev.1
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Enforcement
General provisions
Provide for effective action against infringement ofintellectual property rights without creating barriers to
legitimate trade or opportunities for abuse. Article 41.1Apart from general legal provisions on civil, criminal,
administrative proceedings and customs control, Viet
Nam has promulgated particular provisions on criminal
and administrative procedures and remedies forintellectual property right infringements in the followinglegal instruments:
- The Criminal Code 1999 (Sec. 131: The crime of
copyrights infringement; Sec. 156: The crime of
producing and trading counterfeiting goods; Sec.162: The crime of deceiving consumers; Sec. 168:The crime of untruthfully advertising; Sec. 171:The crime of industrial property rightinfringement);
- The Decree No. 12/1999/ND-CP of the
Government of March 06, 1999 on administrativemeasures against violations in the field ofindustrial property (hereinafter referred to as theDecree No. 12/1999/ND-CP);
- The Circular No. 825/2000/TT-BKHCNMT of the
Ministry of Science, Technology and Environmentof May 03, 2000 guiding the implementation of thesaid Decree No. 12/1999/ND-CP, as amended bythe Circular No. 49/2001/TT-BKHCNMT ofSeptember 14, 2001 (hereinafter referred to as the
Circular No. 825/2000/TT-BKHCNMT).
- The Customs Law 2001 (Articles 57-59)- The Decree No. 101/2001/ND-CP of the
Government dated 31
st December 2001 providing
detailed guidelines to implement the Customs Law(Article 14).
- he Joint Circular No. 01/2001/TANDTC-
VKSNDTC-BVHTT dated 5
th December 2001
providing guidelines to implement some provisionsof the Civil Code relating to settlement of disputesconcerning author’s rights at people’s courts.
The system of detailed provisions governing prosecutingThe prevailing laws and regulations basically meet the
TRIPS Agreement requirements.
Viet Nam is now implementing the plan of promulgation
of the special laws and regulations on civil andadministrative procedures and remedies, bordermeasures in the field of intellectual property inaccordance with the TRIPS requirements:
- Joint  Circular of the Supreme People Court, the
Supreme People Prosecution Institution and theMinistry of Science and Technology guiding thejudgment of cases related to industrial propertyrights (Expected to be promulgated by the end of
2003).
- Decree on amending the Decree No. 12/1999/ND-
CP dated 6 March 1999 of the Government on thehandling of administrative violations in the field ofindustrial property, and Joint Circulars guiding the
implementation (Expected to be promulgated by
the end of 2003).
- Governmental Decree on administrative remedies
in the field of intellectual property.
- Joint Circulars of the Ministry of Finance and the
Ministry of Science and Technology/the Ministry
of Culture and Information on border measures
(hereinafter referred to as joint Circulars on bordermeasures - Expected to be promulgated by the endof 2003).
- Joint Circulars of the Ministry of Trade and the
Ministry of Culture and Information/Ministry of
Science and Technology on measures of market
control and procedures of handling IPR violationsin manufacture, trade and service activities.WT/ACC/VNM/21/Rev.1
Page 34TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
procedures and penalties against the infringement of
intellectual property rights is still incomplete. In the
meantime, the newly promulgated provisions onadministrative enforcement measures have revealedsome weaknesses.
Provide enforcement procedures that are fair andequitable and are not unnecessarily complicated orcostly and do not entail unreasonable time-limits or
unwarranted delays. Article 41.2.The prevailing enforcement procedures are fair,
equitable, and are not unnecessarily complicated orcostly and there is no provision on unreasonable time
limits or unwarranted delays.These provisions are consistent with the TRIPS
Agreement requirements.
Provide decisions on the merits based upon the evidence
presented in the case to the parties, preferably in writing
with the reasons explained. Article 41.3.The Ordinance 1989 on procedures of judgment of civil
cases:
There must be a record of the opinions discussed and of
the decisions of the Board of Trial on the merits of thecase. The decisions of the Board of Trial must fullypresent the contents, details, evidences... of the case,
bases of laws and decisions of the Court (Sec. 53); the
parties are given extracts of the sentence or decision ofthe case by the Court right after the court session, thecopies of the sentence or decision of the judgment by 15days from the judgment date (Sec. 57); the parties and
related persons have the right to give their opinions on
the evaluation of evidences, to respond to the others'opinions and to propose the solution to the case(Sec.51).The provisions that meet the TRIPS requirements are to
be provided for in the Civil Procedures Code (expected
to be promulgated in 2004).
Provide for appeals to judicial bodies of finaladministrative decisions and of at least the legal aspectsof initial judicial decisions on the merits of a case.
Article 41.4.The Ordinance 1989 on procedures for judgment of civil
cases, the Criminal Proceedings Code, the Ordinance onjudgment of administrative cases have provisions on
leveled jurisdiction of judgment of appeal, and of at
least the legal aspects of initial judicial decisions.Particularly, there are provisions on procedures ofappeal for initial sentences and decisions. The draft ofCivil Proceeding Code provides the principles of two-level judgments divided into applied for civil cases.
According to the Ordinance on the procedures of
judgment of administrative cases and the Appeal andDenounce Law, administrative decisions on judgment ofIPR infringements may be secondly appealed either atsuperior administrative authority or at the administrativeCourt, depending on the choice of the plaintiff.The prevailing laws and regulations basically meet the
TRIPS requirements.WT/ACC/VNM/21/Rev.1
Page 35TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
Civil and administrative Procedures and Remedies
Provide a procedure that allows plaintiffs to bring anaction for infringement; requires that defendants be
notified; permits both side to present evidence in support
of their position; and protects confidential information.Article 42.Civil Code ( Section 762.1.b and  Section 796.1.c):
Intellectual property right owners have the right to
require the State competent authorities to force thepersons who infringe their rights to stop thatinfringements and pay for damages; The parties haveequitable rights to provide evidences, to propose and
discuss concerning matters (Sec. 20.2 of the Ordinance
1989 on procedures for judgment of civil cases).
The procedures of handling of IPR infringements are
provided for in the following legal instruments:
- The Ordinance on procedures for judgment of civil
cases;
- The Decree No. 12/1999/ND-CP;- The Circular No. 825/2000/TT-BKHCNMT.The prevailing laws and regulations basically meet the
TRIPS requirements.
Provisions on measures of protection of confidential
information are to be provided for in the CivilProcedures Code (expected to be promulgated in 2004).
Authorize judges to order production of evidencenecessary to substantiate a party's claims where thatparty has been unable to obtain such evidence from the
opposing party. Article 43.1.The Ordinance 1989 on procedures for the judgment of
civil cases (Sec. 41.7) has general provisions on thecompetence of the Court in compelling parties to
commit certain acts.Detailed provisions on the competence of the Court to
force the parties to provide the necessary evidences areto be provided for in the Civil Procedures Code
(expected to be promulgated in 2004).
Authorize judges to enjoin a defendant, except theGovernment, from infringing intellectual property
rights. Article 44.1Civil Code 1995 (Sec. 796.1.c) and Decree No. 63/CP:
Industrial property right owners have the right to require
the State competent authorities, including the Court, toforce the person who infringes their rights to stop thatinfringing acts and pay for damages.The prevailing provisions are basically in conformity
with the requirements of the TRIPS Agreement.
Detailed provisions on the procedures of enforcement ofthe right to require the suspension of infringing goodsare to be promulgated in the Civil Procedures Code(expected to be promulgated in 2004).
Authorize judges to order the payment of monetarydamages adequate to compensate for the injury done by
the infringement. Article 45.1Civil Code 1995 (Sec. 796.1.c) and Decree No. 63/CP:
Industrial property right owners have the right to require
the State competent authorities, including the Court, to
force the person who infringes their rights to stop thatinfringing acts and pay for damages.Civil Code 1995 ( Section 310):The liability for material damages is to compensate thereal material losses incurred by the plaintiff, which can
be assessed in monetary value, consisting of expenses
for prevention and restriction of damages, loss or deficitof income.The prevailing laws and regulations basically meet the
TRIPS requirements.
Detailed provisions on compensation for damages are to
be promulgated in a Decree on administrative remediesin the field of intellectual property (expected to bepromulgated in 2003).Detailed provisions on the procedures of enforcement ofthe right to require the compensation for damages are to
be promulgated in the Civil Procedures Code (expected
to be promulgated in 2004).WT/ACC/VNM/21/Rev.1
Page 36TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
Authorize judges to order infringer to pay right holders
enforcement costs and recovery of profits and/or
statutory damages. Article 45.2.Civil Code 1995 ( Section 310):
The liability for material damages is to compensate the
real material losses of the plaintiff, which can beassessed in monetary value, consisting of expenses forprevention and restriction of damages, loss or deficit ofincome.The prevailing laws and regulations basically meet the
TRIPS requirements.
Detailed provisions on examination and levels ofcompensation for damages are to be promulgated in aDecree on administrative remedies in the field ofintellectual property by the end of 2003).
Authorize additional remedies including seizure of
infringing goods, and the materials and implements the
predominant use of which is infringement. Article 46.There are not detailed provisions yet. Detailed provisions on the additional remedies through
the judicial procedures are to be promulgated in a
Decree on administrative remedies in the field ofintellectual property (expected to be promulgated by theend of 2003).
Authorize indemnification of defendant, includingattorney's fees in the event of abuse by plaintiffs. Article48.1.There are not detailed provisions yet. Detailed provisions authorising judges to order the
plaintiff to compensate the defendant the damages incase the plaintiff abuse the procedures of enforcementare to be promulgated in a Decree on administrative
remedies in the field of intellectual property (expected to
be promulgated in the end of 2003) or the CivilProcedures Code (expected to be promulgated in 2004).
Exempt public authorities and officials from ability inconnection with the administration of intellectualproperty laws only where the actions are taken orintended in good faith within the scope of the relevant
authority. Article 48.2.There is no provision on the exemption of public
authorities and officials from legal liability in case theirimplementation acts are taken in bad faith.
Ensure that administrative remedies conform to theprinciples in the preceding Articles. Article 49.Decree No. 12/1999/ND-CP and Circular No.
825/2000/TT-BKHCNMT:
Administrative remedies of industrial property right
infringements can be applied.These provisions are consistent with the TRIPS
requirements. However, some shortcomings have beenidentified and they are expected to be amended in late2003.WT/ACC/VNM/21/Rev.1
Page 37TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
Provisional measures
Authorize judges to grant temporary restraining ordersand provisional relief to prevent infringement and to
preserve evidence. Article 50.1.The Ordinance on procedures for the judgment of civil
cases (Sec. 41) provided that the competent Court is
entitled to impose the temporary restraining measure to
“prohibit or force a party to commit certain acts” inorder to solve urgent requests of the party or to preserveevidences.The prevailing laws and regulations basically meet the
TRIPS requirements.
Detailed provisions on the temporary measures are to be
promulgated in joint Circulars guiding the judgment ofIPR cases.
Authorize judges to require the complaining party toindemnify the defending party against harm if thedecision on the merits finds the provisional relief
unjustified. Article 50.3.There are not provisions yet. Detailed provisions on the obligations of the plaintiff in
indemnifying the defendant against harm in case theprovisional relief unjustified are to be promulgated in
the Civil Procedures Code (expected to be promulgated
in 2004).
Provide for notice, for formal action by the plaintiff aftertemporary restraining orders, etc. Article 50.4.The Ordinance 1989 on procedures for judgment of civil
cases (Sections 41 and 42) provided as mentioned.The prevailing laws and provisions are consistent with
TRIPS requirements.WT/ACC/VNM/21/Rev.1
Page 38TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
Border measures
Provide for suspension of release by customs authoritiesof goods suspected of bearing a counterfeit trademark or
of being a piratical copyri ghted work, either at the
request of a right holder. Members are authorized toextend such protection to holders of other forms ofintellectual property. Article 51.Law on Customs 2001 (Section57)
Customs Offices shall suspend the clearance procedures
in respect of export and import goods allegedly
infringing intellectual property rights.Civil Code (Sec. 796.1.c) and Decree No. 63/CP (Sec.36):The right holders have the right to require the State
competent authorities, including Customs Offices, to
force the infringer to stop infringing acts, including theimportation of infringing goods.The prevailing law and regulations basically meet the
TRIPS requirements.
Detailed provisions on the implementation of these
procedures are to be promulgated in joint Circulars onborder measures (expected to be promulgated by the endof 2003).
Require right holders initiating border measures toprovide evidence of a prima facie infringement and adescription of the goods sufficient for customsauthorities to recognize them. The right holder must benotified within a reasonable time is action will be taken
on his behalf. Article 52.There are not detailed provisions yet. Detailed provisions on the implementation of these
procedures are to be promulgated in joint Circulars onborder measures (expected to be promulgated by the endof 2003).
Authorize authorities to require the right holderrequesting border measures to post a bond sufficient toprotect the defendant and to prevent abuse. Article 53.There are not detailed provisions yet. Detailed provisions on the implementation of these
procedures are to be promulgated in joint Circulars onborder measures (expected to be promulgated by the endof 2003).
Requires prompt notification of the right holder and theimporter when action under Article 51 is taken.Article 54.There are not detailed provisions yet. Detailed provisions on the implementation of these
procedures are to be promulgated in joint Circulars onborder measures (expected to be promulgated by the end
of 2003).
Requires that customs authorities be notified within amaximum of 20 days of the receipt of notice that
proceedings on the merits have begun or the suspensionis to be revoked. Article 55.The Ordinance 1995 on procedures for judgment of
administrative violations (Sec. 41) :
The time limit for suspension of release of goods is 15
days.
Decree No. 16/CP (Sec. 20):
Time limit may be extended for additional 15 days in
complicated cases or cases related foreigners. TheCustoms Offices themselves are the competentauthorities who make decisions the merits of the cases
under administrative procedures.Detailed provisions on the implementation of these
procedures are to be promulgated in joint Circulars on
border measures (expected to be promulgated by the endof 2003).WT/ACC/VNM/21/Rev.1
Page 39TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
Authorities must be authorized to require the right
holder to compensate the importer or owner of the goods
subject to border measures if goods were wrongfullydetained or if proceedings l eading to a decision on the
merits are not begun within the allotted time. Article 56.The Ordinance 1995 on procedures for judgment of
administrative violations:
The Customs Offices are entitled to impose the
compensation of damages up to 1 millions VND. Thedamages over 1 millions VND are compensated throughcivil proceedings.Detailed provisions on the authority of imposing
compensation of damages of the owner of goods or the
importer are to be promulgated in joint Circulars onborder measures (expected to be promulgated by the endof 2003).
Right holders must be allowed to inspect the detained
goods in order to substantiate the right holder's claims.
Importers must be given similar authority. Membersmay give the right holder the names and addresses ofthose involved in the importation when infringement isfound to exist. Article 57.There are not detailed provisions. Detailed provisions on the implementation of these
procedures are to be promulgated in joint Circulars on
border measures (expected to be promulgated by the endof 2003).
Establishes the conditions that must be in place ifcustoms authorities are authorized to act ex officio,including the ability to ask the right holder for
information at any time; the requirement to notify the
importer promptly of the suspension; and therequirement that public officials be liable if they act inbad faith. Article 58.The Ordinance 1995 on procedures for judgment of
administrative violations:
The Customs Offices are entitled to seizure or handle
illegal imports on their own initiative.
The prevailing laws and regulations do not provide for
exemptions of public officials in case their acts are taken
in bad faith.Detailed provisions on such authority and obligation are
to be promulgated in joint Circulars on border measures(expected to be promulgated by the end of 2003).
Competent authorities must be able to order destruction
or disposal other than by re-export of infringing goods
where appropriate. Article 59.The Decree No. 12/1999/ND-CP and the Circular No.
825/2000/TT-BKHCNMT:
The competent authorities are entitled to impose the
measures of destruction or other measures for infringinggoods.Detailed provisions not permitting re-export of the
infringing goods in certain cases are to be promulgated
in joint Circulars on border measures (expected to bepromulgated by the end of 2003).
Members are authorized to except from border measuressmall quantities of infringing goods of a non-
commercial nature carried in personal luggage or
shipped in small consignments. Article 60.Decree No. 63/CP (Sec. 34):
The acts of importation without commercial purposes
are not considered as industrial property rightinfringements.WT/ACC/VNM/21/Rev.1
Page 40TRIPS AgreementViet Nam
Citation to related laws and regulationsNote
Compliance/ Action plan
The criminal procedures
Provide criminal procedures and penalties, sufficient toact as a deterrent, for willful trademark counterfeiting or
copyright piracy on a commercial scale. Authorizes
extension of criminal actions to other forms ofintellectual property where infringements are willful andon a commercial scale. Article 61.The Criminal Code 1999:
- The crime of copyrights infringements (Sec. 131),
- The crime of producing and trading counterfeiting
goods (Sec. 156),
- The crime of deceiving consumers (Sec. 162)- The crime of untruthfully advertising (Sec. 168)
- The crime of industrial property right
infringements (Sec. 171).The prevailing laws and regulations do meet the TRIPS
requirements.WT/ACC/VNM/21/Rev.1
Page 41Annex to the TRIPS Action Plan
Review of the Implementation of Viet Nam’s Action Plan towards
complying with the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS)
WTO requirements under the
TRIPS AgreementState of Viet Nam’s IP system at
the point of filing application for
WTO accession (1996)1996 Action PlanCurrent State of Viet Nam’s
IP system
(as of July 2003)Action Plan for 2003-2004
(1) (2) (3) (4) (5)
A. LEGISLATION
I. General provisions
1. Reciprocal protection of
intellectual property:
WTO Members shall accord to
each country’s nationals theadequate and highly effectiveprotection and enforcement in
principles of the national
treatment and most-favorednation treatment.Intellectual property rights
(IPRs) of foreigners areprotected in accordance withinternational treaties that Viet
Nam has signed or acceded
(Articles 836, 837 of the CivilCode).
Therefore, IPRs of WTO
Member’s nationals shall be
protected when Viet Nam
accesses to WTO.WT/ACC/VNM/21/Rev.1
Page 42WTO requirements under the
TRIPS AgreementState of Viet Nam’s IP system at
the point of filing application for
WTO accession (1996)1996 Action PlanCurrent State of Viet Nam’s
IP system
(as of July 2003)Action Plan for 2003-2004
(1) (2) (3) (4) (5)
2. Required protectable
subject matters (including
those required by the Paris
Convention cited inTRIPS):
- Copyrights and related
rights;
- Geographical indications,
including the Appellationsof origin;
- Trademarks;
- Industrial designs;
- Inventions;
- Utility models;
- Plant varieties;
- Layout designs of integrated
circuits;
- Trade secrets;
- Rights against unfair
competition.Protectable subject matters:
- Copyrights and related
rights;
- Appellations of origin;
- Trademarks;
- Industrial designs;
- Inventions;
- Utility solutions (including
utility models);
Shortcomings:
Provisions on the protection of
some industrial property mattersare not available:
- Geographical indications;
- New plant varieties;
- Layout designs of integrated
circuits;
- Trade secrets;
- Trade names;
- Right against unfair
competition.Supplement Government
Decrees providing for the
protection of “other industrialproperty subject matters” (statedin Article 780 of the Civil Code)The IP system meets the
requirement of adequacy.  All
subject matters provided forunder TRIPS are protected:
- Copyrights and related
rights;
- Geographical indications;
- Appellations of origin;
- Trademarks;
- 
Industrial designs;
- Inventions;
- Utility solutions (including
utility models);
- Plant varieties;
- Layout design of integrated
circuits;
- Trade secrets;
- Trade names;
- Right against unfair
competition.WT/ACC/VNM/21/Rev.1
Page 43WTO requirements under the
TRIPS AgreementState of Viet Nam’s IP system at
the point of filing application for
WTO accession (1996)1996 Action PlanCurrent State of Viet Nam’s
IP system
(as of July 2003)Action Plan for 2003-2004
(1) (2) (3) (4) (5)
3. National Treatment:
Article 3 of TRIPS and its third
note provides that each membershall accord to nationals of othermembers’ treatment not less
favorable than that it accords to
its nationals with regard to theprotection of IPRs, includingmatters affecting the availability,acquisition, scope, maintenanceand enforcement of intellectual
property rights.The same provisions on the
protection of IPRs were appliedto Vietnamese and foreignersexcept for some provisions
regarding the procedures.
Shortcomings:Circular 23 TC/TCT dated 9
May 1997 of the Ministry of
Finance guiding the collection,
payment and management ofindustrial property charges andfees provides that charges andfees for foreigners are higherthan that for Vietnamese.Amend the Circular  23 TC/TCT
dated 9 May 1997 of theMinistry of Finance toward theone price policy for Vietnamese
and foreignersCurrent state remains unchanged
because Viet Nam has notcompleted the 1996 Action plan(Continue the 1996 Action plan)WT/ACC/VNM/21/Rev.1
Page 44WTO requirements under the
TRIPS AgreementState of Viet Nam’s IP system at
the point of filing application for
WTO accession (1996)1996 Action PlanCurrent State of Viet Nam’s
IP system
(as of July 2003)Action Plan for 2003-2004
(1) (2) (3) (4) (5)
II. Criteria for the protection
1. Copyrights and related
rights
TRIPS Agreement requires
Members to comply withstandards of the BerneConvention and elaborate or
amend specific obligations
concerning the protection forcomputer programs anddatabases or compilation of dataand at the same time requiresMembers to comply with the
protection standards as for
related rights as provided for inArticle 14.In general, provisions on the
copyrights and related rightsconform to the BerneConvention and TRIPS
Agreement.
Shortcomings:Vietnamese legal system did not
cover the following
corresponding provisions of
TRIPS Agreement: specificprovision on the protection ofcomputer programs andcompilations of data (Article
10); provision on the term of
protection for performers(Article 14, par. 1); provision onthe rights to fix and broadcasttelevision programs to the public(Article 14 par. 3); provision on
rental rights of phonograms
(Article 14, par. 4); provision onthe right to communication ofthe dramatic or dramatico-musical, musical  works to thepublic (Article 9 par. 1);
Article 774 and Article 776 of
the Civil Code 1995 depriveauthors of their rights to theirpublished works concerning theperformance of dramatic,
dramatico-musical or musical
works and fixation of musicalAmend Government Decree
76/CP dated 29/11/1996 oncopyrights, inter alia amendingthe provisions concerning the
application of international
treaties and some other contents.The state remains unchanged
because the 1996 Action planhas not been completed.(Continue the 1996 Action plan)WT/ACC/VNM/21/Rev.1
Page 45WTO requirements under the
TRIPS AgreementState of Viet Nam’s IP system at
the point of filing application for
WTO accession (1996)1996 Action PlanCurrent State of Viet Nam’s
IP system
(as of July 2003)Action Plan for 2003-2004
(1) (2) (3) (4) (5)
works that is contrary to the
requirement in Article 9, par.1 of
TRIPS Agreement.
2. Trademarks including
service marks
Trademarks shall be protected inaccordance with standards as
provided for in Paris Convention
for the Protection of IndustrialProperty and TRIPS.
Note:
- Par. 1 of Article 16 of
TRIPS Agreement states:“The owner of a registeredtrademark shall have theexclusive right to prevent all
third parties not having the
owner’s consent from usingin the course of tradeidentical or similar signs forgoods or services which areidentical or similar to those
in respect of which the
trademark is registeredwhere such use would resultin a likelihood of confusion.In case of the use of anidentical sign for identical
goods or services, a
likelihood of confusionshall be presumed”.
- Pars. 2 and 3 of Article 16
of TRIPS Agreement
required to protect well
known marks in line withProvisions on trademarks have
conformed to Paris Convention
(Viet Nam has been a member
since 1949) and Viet Nambasically meets the requirementsof TRIPS Agreement.
Shortcomings:
- The scope of protection is
narrower than that of TRIPSAgreement: according toArticle 53.1 and Article
34.3 of Government Decree
63/CP on the detailedprovisions on industrialproperty, acts constitutingthe infringement of existingrights of registered
trademarks include the use
without prior authorizationof right holders.
- The right of well known
trademarks is limited to theprotection against the
unauthorized registration
accordance to Article 6.1 ofGovernment Decree 63/CPdated 24 October 1996 onthe detailed regulations on
industrial property.Amend Government Decree
63/CP dated 24 October 1996 on
the detailed regulations on
industrial property, with a viewto:
- broadening the scope of
protection of registered
trademarks;
- adding provisions on the
protection of well knowntrademarks.Provisions on the protection of
trademark meet the requirements
of TRIPS (Government Decree
63/CP dated 24 October 1996was amended by GovernmentDecree 06/2001/ND-CP dated 1February 2001).
Shortcomings:
Regulations on the protection of
well known trademarks have notbeen elaborated with regard to
the procedures for recognition of
well known trademarks andcriteria for assessment of wellknown status.Promulgate a Circular of the
Ministry of Science and
Technology on detailed
procedures for recognition ofwell known trademarks andcriteria for assessment of wellknown status.WT/ACC/VNM/21/Rev.1
Page 46WTO requirements under the
TRIPS AgreementState of Viet Nam’s IP system at
the point of filing application for
WTO accession (1996)1996 Action PlanCurrent State of Viet Nam’s
IP system
(as of July 2003)Action Plan for 2003-2004
(1) (2) (3) (4) (5)
Article 6bis of Paris
Convention against the
unauthorized registration,including the use for notsimilar goods and services.
3. Geographical indications,
including Appellations of
origin
Article 22 of TRIPS Agreementrequire to protect geographicalindications in general, inter aliaAppellations of origin.Geographical indications was
not fully protected in contrast toTRIPS: according to Article 7.2of Government Decree 63/CPdated 24 October 1996 on
detailed regulations on industrial
property, only a kind ofgeographical indications wasprotected, that is Appellations oforigin; other geographical
indications that were not
geographical names, includingthe signs taking on the symbolof a country, locality wheregoods  originate were notprotected.Promulgate legislation on the
protection of geographicalindications by a GovernmentDecree and a Circular of theMinistry of Science, Technology
and Environment guides the
implementation of the Decree.Regulations on the protection of
geographical indications(including Appellations oforigin) conform with TRIPS.(- Government Decree 63/CP
dated 24 October 1996 provides
the protection of theAppellations of origin;- Government 54/2000/ND-CPdated 3 October 2000 on the
protection of business secrets,
geographical indications, tradenames and protection againstindustrial property-related unfaircompetition)
Shortcomings:
Regulations on the protection of
geographical indications are newand not clear and lack guidelinesfor implementation so it is
difficult to put them into
practice.Promulgate a Circular guiding
the implementation ofregulations on geographicalindications in GovernmentDecree 54/2000/ND-CP dated 3
October 2000.
(Continue the 1996 Action Plan)WT/ACC/VNM/21/Rev.1
Page 47WTO requirements under the
TRIPS AgreementState of Viet Nam’s IP system at
the point of filing application for
WTO accession (1996)1996 Action PlanCurrent State of Viet Nam’s
IP system
(as of July 2003)Action Plan for 2003-2004
(1) (2) (3) (4) (5)
4. Industrial designs:
Industrial designs shall be
protected as provided for in theParis Convention for theProtection of Industrial Property
and TRIPS.
Note:Article 26.1 of TRIPS states:
“The owner of a protected
industrial design shall have the
right to prevent third parties nothaving the owner’s consent frommaking, selling or importingarticles bearing or embodying adesign which is a copy, or
substantially a copy, of the
protected design, when such actsare undertaken for commercialpurposes”.Regulations on the protection of
industrial designs conformedwith the Paris Convention (VietNam has became a member
since 1949) and in general, met
TRIPS requirements.
Shortcomings:The scope of protection of
industrial designs is narrower
than that required by TRIPS:according to Article 53.1 andArticle 34.2 of GovernmentDecree 63/CP dated 24 October1996 on detailed regulations on
industrial property, acts
constituting the infringement ofexisting rights of registeredindustrial designs include theuse without prior authorizationof right holders.Amend Government Decree
63/CP dated 24 October 1996 ondetailed regulations on industrialproperty in order to broaden the
scope of protection.Regulations on the protection of
industrial designs meet therequirements of TRIPS.
(Given Government Decree
63/CP dated 24 October 1996 ondetailed regulations on industrialproperty and amended byGovernment Decree06/2001/ND-CP dated
1 February 2001).WT/ACC/VNM/21/Rev.1
Page 48WTO requirements under the
TRIPS AgreementState of Viet Nam’s IP system at
the point of filing application for
WTO accession (1996)1996 Action PlanCurrent State of Viet Nam’s
IP system
(as of July 2003)Action Plan for 2003-2004
(1) (2) (3) (4) (5)
5. Inventions, utility models
Inventions shall be protected as
standards provided for in theParis Convention for theProtection of Industrial Property
and TRIPS.
Note:- Article 27 of TRIPS
requires the patents shall be
available for inventions in
all field of technology,including micro-organisms.
- Requirements for the
protection of existing
inventions: Article 70.2 of
TRIPS requires eachMember shall apply allprovisions of TRIPS forsubjects that meetfollowing criteria:
existing on the date of
application of thisAgreement for the Memberin question, and which is
protected in that Member
on the said date, or whichmeets or comessubsequently to meet thecriteria for protection underthe terms of TRIPS.Regulations on inventions and
utility solutions conformed withParis Convention (Viet Nam hasbecame the member since 1949)
and in general, meet the
requirements of TRIPS.
Shortcomings:Micro-organisms are protected
by the Viet Nam’s existing
regulations on patents(excluding from the list that isnot protected as inventionsaccording to Article 4 of Decree63/CP dated 24 October 1996 on
detailed regulations industrial
property). However, there are nospecific regulations on theformality of applications,guidelines for examination andprocedures for deposit of micro-
organisms and not in necessary
technical conditions to conductexamination of applications formicro-organisms.
- According to Article 69.2
of Government Decree63/CP dated 24 October1996 on detailedregulations on industrialproperty, patents that were
granted on the ground of
former legal system willcontinue to exist to the endPromulgate regulations (a
Circular) of the Ministry ofScience, Technology andEnvironment on the formality of
applications for micro-
organisms and procedures fordeposit of micro-organisms toserve the examination ofapplications.
- Amend Government
Decree 63/CP dated 24October 1996 so as toextend the term ofprotection up to 20 yearsfor inventions protected on
the ground of the old legal
system.The shortcomings remain
because the 1996 Action Planhas not been completedPromulgating regulations (a
Circular) of the Ministry ofScience and Technology on theformality of applications for
micro-organisms inventions and
on the procedures for deposit ofmicro-organisms to serve theexamination. (Continue 1996Action Plan)WT/ACC/VNM/21/Rev.1
Page 49WTO requirements under the
TRIPS AgreementState of Viet Nam’s IP system at
the point of filing application for
WTO accession (1996)1996 Action PlanCurrent State of Viet Nam’s
IP system
(as of July 2003)Action Plan for 2003-2004
(1) (2) (3) (4) (5)
of term of protection, that
is, the end of 15 years from
the priority date ofapplications, not the end of20 years from filing date ofapplications as newly
provided for in
Government Decree 63/CPtowards the compliancewith TRIPS.
6. Plant varieties:
Par.3 of Article 27 of TRIPSrequires Members to provide for
the protection of plant varieties
either by patents or by aneffective sui generis system.Plant varieties were not
protected by patents (falling
within the list not to be protected
as inventions  according to
Article 4.4 of GovernmentDecree 63/CP dated 24 October1996 on the detailed regulations
on industrial property).
Shortcomings:Certificate regime for creators of
plant varieties (Government
Decree 31/CP (1981) on
innovations, inventions; Circular01/NN-KCM (1994) guiding theawards for creators of plantvarieties, animal species; JointCircular 1608/NN/UBKHKTNN
dated 23 December 1982 on the
registration and the protection ofplant variety inventions;Government Decree 07/CP(1996) on the management of
plant varieties) was not an
effective system because it didPromulgating regulations on the
protection of new plant varieties
as required by UPOV
Convention:
- Government Decree on the
protection of new plant
varieties;
- Circular of the Ministry of
Agriculture and RuralDevelopment guiding theimplementation of the saidDecree.Plant varieties are protected by
UPOV-like system with specific
regulations on procedures for
establishment of rights.
(- Government Decree
13/2001/ND-CP dated 20
April 2001 on the
protection of new plantvarieties;
- Circular 119/2001/TT-
BNN guiding theimplementation of
Government Decree
13/2001/ND-CP dated 20April 2001;
- Circular 92/2002/TT-BTC
dated 18 October 2002 ofthe Ministry of Finance on
the collection, payment,
management and use ofcharges for theexamination, provision ofinformation and service
and fees for registration,
grant, publication andBroaden the list of protected
genera (from 5 to 15)WT/ACC/VNM/21/Rev.1
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(1) (2) (3) (4) (5)
not encourage the creation
activates: the rights of authors of
plant varieties arose on theground of the grant ofcertifications for plant varietieswith the term of 15 years from
the filing date, including the
moral right and right to receivethe awards at the low level (ofsymbolic value); State reservedthe exclusive rights to plantvarieties.maintenance of registration
concerning new plant
varieties;
- Rules for DUS test for
plant varieties)
Shortcomings:
Now, only 5 genera are
protected whereas TRIPSrequires the protection shall begranted to all species (belonging
to all genera) and UPOV
provides Members are entitled tolimit to only 15 genera whichshall be protected within 10transitional years from the dateof entry into UPOV.
7. Layout designs of
integrated circuits
TRIPS sets out the standards forthe protection of layout designsof integrated circuits (IC) inArticle 35 through Article 38.Viet Nam did not have
legislation on the protection ofIC as required in Article 35through Article 38 of TRIPS.Issue new legal documents
incorporating regulations on theprotection of IC:
- Government Decree on the
protection of IC;
- Circular of the Ministry of
Science, Technology andEnvironment guiding theimplementation of the
Decree.Regulations on the protection of
IC conform with requirements ofTRIPS.
(Government Decree
42/2003/ND-CP dated 2 May2003 on the protection of IC)
Shortcomings:
Specific provisions are not
available, especially thoseconcerning the procedures forestablishment of rights of IC.Issue regulations (Circular) of
the Ministry of Science andTechnology guiding theimplementation of Government
Decree 42/2003/ND-CP dated 5
May 2003. (Continue 1996Action Plan).WT/ACC/VNM/21/Rev.1
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(1) (2) (3) (4) (5)
8. Undisclosed information,
including trade secrets and
test data
TRIPS requires to protect
undisclosed information
(including trade secrets and test
data) in accordance with theprotection against unfaircompetition as provided inArticle 39.Viet Nam did not have
legislation on the protection of
undisclosed information
(including trade secrets and testdata) as stated in Article 39 ofTRIPS.Issue new legal documents on
the protection of undisclosed
information:
- Government Decree on the
protection of businesssecrets, geographicalindications for goods, trade
names and the protection
against industrial-relatedunfair competition;
- Circulars of the Ministry of
Science, Technology andEnvironment, the Ministry
of Agriculture and Rural
Development and theMinistry of Public Healthguiding the implementationof the Decree.Legislation on the protection of
undisclosed information
conforms with TRIPS.
(Government Decree
54/2000/ND-CP dated 3 October2000 on the protection ofbusiness secrets, geographical
indications, trade names and the
protection against industrialproperty-related unfaircompetition).
Shortcomings:
Regulations on the protection of
undisclosed information are newand not clear and lack guidelinesfor implementation so it isdifficult to put them into
practice.Issue Circulars guiding the
implementation of Government
Decree 54/2000/ND-CP dated 3
October 2000 on the protectionof undisclosed information.
(Continue 1996 Action Plan)WT/ACC/VNM/21/Rev.1
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(1) (2) (3) (4) (5)
II. Enforcement
TRIPS requires the effective
enforcement of IPRs throughcivil, criminal andadministrative remedies and
procedures, including the border
control measures as provided inPart III of the Agreement.The enforcement of IPRs
followed the general proceduresfor enforcement of laws andregulations.
Shortcomings:
Lacking specific provisions
guiding the enforcement of,civil, criminal and
administrative remedies and
procedures with regard to theinfringing acts of IPRs asrequired in Part III of TRIPS.Promulgate new legal
documents covering regulationson and civil, criminal andadministrative remedies and
procedures with regard to
infringement of IPRs:
- Regulate (Joint Circulars
among People’s SupremeCourt, People’s Supreme
Organ of Control and the
Ministry of Culture andInformation/the Ministry ofScience, Technology andEnvironment) theproceedings of cases
concerning infringement of
IPRs;
- Criminal Code;- Government Decree on the
handling of infringement ofadministrative regulations
in the field of industrial
property;
- Regulate (Joint Circulars
among General Departmentof Customs, the Ministry of
Culture and Information/
the Ministry of Science,Technology andEnvironment) bordercontrol measures andprocedures of handling of
infringing cases concerning
copyrights and relatedrights in export and importBesides general procedures for
enforcement of laws andregulations, there are specificremedies and criminal and
administrative procedures for
infringement of IPRs:
- Criminal Code 1999;
- Government Decree
12/1999/ND-CP dated 6
March 1999 on the
handling of violation ofadministrative regulationsin the field of industrialproperty;
- Circular 825/2000/TT-
BKHCNMT dated 3 May
2000 of the Ministry ofScience, Technology andEnvironment guiding theimplementation ofGovernment Decree
12/1999/ND-CP amended
by Circular 49/2001/TT-BKHCN dated 14September 2001;
- Law on Customs;
- Joint Circular between
People’s Supreme Court,People’s SupremeProsecuracy and theMinistry of Culture andInformation guiding the
proceedings of cases
concerning copyrights;Promulgate new legal
documents on enforcement ofIPRs (Continue 1996 ActionPlan) and perfect the existing
following regulations:
- Joint Circular among
People’s Supreme Court,People’s Supreme Organ ofControl and the Ministry of
Science and Technology
guiding the proceedings ofcases concerning IPRs;
- Amend Government
Decree 12/1999/ND-CPdated 6 March on the
handling of violation of
administrative regulationsin the field of industrialproperty and its guidingCirculars;
- Regulate (Joint Circulars
among General Department
of Viet Nam Customs, theMinistry of Culture andInformation/ the Ministryof Science, Technology
and Environment) border
control measures andprocedures of handling ofinfringement of copyrightsand related rights in exportand import activities;
- Joint Circulars among the
Ministry of Trade and theMinistry of Culture andWT/ACC/VNM/21/Rev.1
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(1) (2) (3) (4) (5)
activities;
- Regulate (Joint Circulars
among the Ministry ofTrade and the Ministry ofCulture and Information/the Ministry of Science,
Technology and
Environment) the marketcontrol measures andprocedures for handling ofIPR infringing cases inproduction, trade and
service supply activities.Shortcomings:
Specific regulations on remedies
and procedures for handling ofinfringement of IPRs areinadequate and shortcomings of
newly issued administrative
procedures have been found.Information/ the Ministry
of Science and Technology
on the market controlmeasures and proceduresfor handling ofinfringement of IPRs in
production, trade and
service supply activities.WT/ACC/VNM/21/Rev.1
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(1) (2) (3) (4) (5)
B. CAPACITY FOR
ENFORCING LAWS
AND REGULATIONS
1. Procedures for right
acquisition
Part IV of TRIPS requires thesimple and expeditious
procedures for acquisition and
maintenance of IPRs.
2. Enforcement agencies
Part III of TRIPS requires
timely, effective, fair and simpleenforcement procedures.The organizational structure of
registration offices is similar to
popular structure in the world.
Shortcomings:The capacity of registration
offices (especially for industrial
property rights) did not match
against those of advancedcountries in the world, thus notensuring the high-qualityprocedures.
The general enforcement
agencies are also responsible forenforcement of IPR.
Shortcomings:
- This is cumbersome and
bureaucratic system whoseagencies had overlapping
functions and not well
coordinated;- Consolidate and strengthen
the capacity of IPRs
registration offices (mainly
industrial property office)towards:
(i) automate professional
activities; (ii) re-train staff;
(iii) distinguish the state
administration function(right establishment) andservices supply function,including information
service and consulting
service;
- Set up industrial property
information network.
- Review the structure of
enforcement competentagencies and propose newstructure towards: (i)establish separated courtsresponsible for industrial
property/copyright matters
in 3 or 5 regions, locatingin major cities (Hanoi, HaiPhong, Da Nang, Ho ChiMinh); (ii) concentrate
enforcement function into 2
agencies, that is customs –The situation has not been
notably improved, except for the
automation of administration of
industrial property as the resultof JICA-sponsored project.
The situation has not been
notably improved, except for theautomation of administration ofindustrial property as the result
of JICA-sponsored project.Continue 1996 Action Plan
Continue 1996 Action PlanWT/ACC/VNM/21/Rev.1
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(1) (2) (3) (4) (5)
3. General public awareness- The capacity (human
resource and equipment) of
enforcement agencies is noton a par with those of othercountries in the world.
The awareness of IP of general
public is still low. Training and
IP law outreach activities were
kick-started but falling short ofsystematic approach and properscale. The activities of naturaland legal persons arespontaneous and the IP social
organizations had not been
established...border control and market
control office – domestic
market control;
- Strengthen the capacity
(equipment, techniques and
staff) for enforcement
agencies;
- Organize research and
training agencies;developing regular IP
training schedules to
develop human resourcefor IP system; expeditingtraining programs forcritical units that still lackprofessional staff,
especially focusing on the
enforcement staff;disseminating IP laws inorder to raise publicawareness.The situation has been improved
though fallen short of desired
state.Continue 1996 Action Plan
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