WORLD TRADE  
ORGANIZATION  IP/C/W/512 
17 June 2008 
 
 (08-2814) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
 
REVIEW OF LEGISLATION 
 
Questions posed by Canada  
 
 
 By means of a communication from the Dele gation of Canada, da ted 13 June 2008, the 
Secretariat has received a copy of the following questions that it has communicated to Viet Nam. 
  
_______________ 
 
 
VIET NAM 
 A. L
AW ON INTELLECTUAL PROPERTY  
1. Article 23.2 states that "Organizations and indi viduals using folklore and folk art works of 
folklore must refer to their sources and preserve th eir true values".  Canada would be grateful if 
Viet Nam could provide additional in formation on what is required of organizations and individuals to 
comply with this provision.  
2. Article 27 states that the "moral rights provided for in Clauses 1, 2 and 4, Article 19 of this 
law shall be protected for an indefinite term".  According to the Berne Convention, the moral rights 
granted to the author should be protected at least  until the expiry of the economic rights (Article 6 bis). 
Canada would be grateful for additional informati on on the justification for an indefinite term for 
moral rights. 
3. Article 28 defines "Acts of infringing upon copy right" to include "appropriating copyright to 
literary, artistic or scientific works" and "impersonati ng authors".  We would be grateful if Viet Nam 
could clarify these two prohibitions. 
4. At Article 58 a distinction is made between  an "invention patent" and a "utility solution 
patent".  Canada would appreciate if Viet Nam c ould further elaborate on what is a "utility solution 
patent", and why such a distinction was drawn.  Mo reover, Canada notes that inventions protected by 
"utility solution patents" do not need to satisfy the inventive step patentability criterion, and are valid 
only for a 10-year term.  Canada would be gratef ul for Viet Nam's views on the consistency of 
Articles 58.2 and 93.3 of the Law on Intellectual Prope rty with Article 27.1 of the TRIPS Agreement. 
5. Article 125.2 does not allow "owners of intellectual property objects" to prevent others to use 
inventions "for non-commercial purposes, or for purpo ses of evaluation, analysis, research, teaching, 
testing, trial production or inform ation…".  Canada would be grateful if Viet Nam could clarify 
whether there are any limitations to these exceptions  to patentees' rights, and how this provision has 
been interpreted by the courts. IP/C/W/512 
Page 2  
 
  6. At Article 128 on obligation to keep secret test data, "the competent licensing agency shall be 
obliged to apply necessary measures so that such data are neithe r used for unhealthy commercial 
purposes nor disclosed…".  Canada would apprecia te further clarifications on the meaning of 
"unhealthy commercial purposes". 
7. At Article 136, owners of inventions are oblig ed to manufacture protected products or apply 
protected processes to satisfy the requirements of national defence, security, disease prevention and 
treatment and nutrition for the people or to meet other so cial urgent needs; and that if this is not done 
inventions may be licensed in accordance to Artic les 145 and 146 of this law.  Further to this, 
Article 23 of the Decree No. 103/2006/ND-CP of 22 September, 2006 detailing and guiding the implementation of a number of articles of the law on intellectual propert y regarding industrial 
property allows the Ministry of Science and Techno logy to licence an invention where the patentee 
fails "to perform the obligation to manufacture protected products or apply protected processes to satisfy needs of national defence, security, di seases prevention and treatment and nutrition for the 
people or other social needs".  Canada would appreciate Viet Nam's views on how those needs 
mentioned above may be met, and further informat ion on what specific grounds compulsory licences 
may be granted. 
8. At Chapter XVI, concerning rights to self-pro tection under Article 198.1(b),(c), and (d), 
Canada would be grateful for clarification regardi ng whether the application of measures available to 
rights holders dependent on an official dete rmination of infringement from a competent 
authority/agency in Viet Nam. 
9. At Chapter XVI, Article 199 addresses remedies against acts of infringing upon intellectual 
property rights.  Clause 1 reads, "Organizations and individuals that commit acts of infringing upon 
intellectual property rights of other organizations an d individuals shall, depending on the nature and 
seriousness of such infringement, be handled with ci vil, administrative or criminal remedies." Canada 
would be grateful for clarifications regarding wh ether the involvement of an "organization" would 
meet the circumstance threshold in Article 156.2 of th e Criminal Code and therefore, permit criminal 
prosecution.  If not, what other circumstances, conditi ons, or thresholds must be met before criminal 
remedies are available? 
B. D
ECREE NO . 106/2006/ND-CP  OF SEPTEMBER 22, 2006,  PROVIDING FOR SANCTIONING OF 
ADMINISTRATIVE VIOLATIONS IN THE DOMAIN OF INDUSTRIAL PROPERTY  
10. At Article 8 (Violation of regula tions on industrial property assess ment) there is a reference to 
"industrial property assessment".  Cana da would be grateful if for a dditional information regarding: 
(1) What an assessments would entail and who woul d perform it?;  (2) What role does the assessor 
play in the enforcement of administrative penalti es?;  and (3) Does the assessor have the exclusive 
responsibility and/or jurisdiction in administra tive procedures or prosecutions involving the 
infringement of intellectual property rights in Viet Nam? 
11. At Article 14 (On production, transportation,  import of, or trading in, objects bearing 
infringing marks or geographical indications) identi fies a scale of fines, imposed on individuals or 
organizations, for cases of infringement based on the va lue of infringing goods.  How is the value of 
infringing goods determined or more specifically, on what basis is it calculated? 
12. Article 14 also indicates that fines, or administ rative penalties, are applicable to individuals 
and organizations .  Articles 156 (Manufacturing and/or trading in fake goods) and 171 (Infringing 
upon industrial property rights) of Viet Nam's Criminal Code  identify eight thresholds for criminal 
provisions, but only one of the eight a required for such provisions to apply.  The first threshold is 
described as "In an organized manner".  Would the involvement of an organization in a case of  IP/C/W/512 
 Page 3 
 
 
  administrative recourse automatically invoke crimin al proceedings against the organization by the 
State? 
13. At Article 15.6 (Production, import, transportati on of, trading in, or storing for sale of goods 
bearing counterfeit marks or geographical indications ) concerning remedies there is a reference to 
"the forcible destruction or distribution or putting to use for non-commercial purposes of goods 
bearing counterfeit marks or geographical indicati ons, raw materials, materials and means used 
mainly for production of, or trading in, those goods, wh ich, however, must not a ffect the exercise of 
the rights by industrial property rights holders, for viol ations specified in Clauses 1, 2, 3, and 4 of this 
Article."  Could Viet Nam please provide exam ples of the distribution or putting to use for non-
commercial purposes of goods bearing counterfeit mark s or geographical indications, that does not 
affect the exercise of the rights by industrial property rights holders? 
14. With respect to Article 22 (Handling of wr itten request involving disputes or filed with 
competent agencies) Canada would be grateful for additional information on which agencies are 
incompetent with respect to dispute filings. 
15. With respect to Article 23 (Coordination in ha ndling of violations) could Viet Nam provide 
additional information regarding:  (1) Which agency  is responsible for handl ing violations involving 
copyright infringement?;  (2) Which agency is  responsible for handling violations involving 
trademark infringement?;  and (3) Which agency is  responsible for handling violations involving 
patent infringement? 
C. NOTIFICATION OF LAWS AND REGULATIONS UNDER ARTICLE 63.2  OF THE AGREEMENT  
16. With respect to Viet Nam's Criminal Code at  Article 156, must conditions of Article 156.1 
and Article 156.2 or Article 156.3 be  met before criminal provisions apply?  That is to say, must the 
financial and circumstantial thresholds be me t to criminally prosecute alleged infringers? 
D. DECREE NO. 105/2006/ND-CP  OF SEPTEMBER 22, 2006,  DETAILING AND GUIDING THE 
IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON INTELLECTUAL PROPERTY ON 
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS AND ON STATES MANAGEMENT OF 
INTELLECTUAL PROPERTY   
17. According to Article 51 of Viet Nam's Decree No. 105/2006/ND-CP of 22 September, 2006, 
the conclusions of written intellect ual property assessments shall be c onsidered as evidence used for 
handling the case.  In light of this, Canada understa nds that the courts are not bound by intellectual 
property assessment, but would appreciate further info rmation from Viet Nam on the history of the 
use of these assessments by the courts. 
E. REGULATIONS ON DATA SECURITY OF DRUG REGISTRATION RECORDS  
18. In regard to the definition in Article 2(6) a nd in regard to the subsequent reference in 
Article 4(1), we would be grateful for additiona l information on what criteria are applicable to 
"business secrets" and whether they include require ments that the data have commercial value. 
19. In Article 4(2), data must be "results of i nvestment of significant efforts" to meet the 
conditions to be secured.  Canada would be grateful  if Viet Nam could provide clarification regarding 
the meaning of "significant effort" and how it di ffers from "considerable effort" as referred to in 
Article 39(3) of the TRIPS Agreement. IP/C/W/512 
Page 4  
 
  20. Canada would be grateful if Viet Nam coul d provide additional information regarding how 
violations are handled under Article 12 and what administrative and penal sanctions are available 
under the law.
  
__________