WORLD TRADE  
ORGANIZATION  IP/C/W/514 
23 September 2008 
 
 (08-4467) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
REVIEW OF LEGISLATION 
 
Responses from Viet Nam to the questi ons posed by the European Communities,  
Japan, Switzerland, the Separate Customs Territory of Taiwan, Pengu,  
Kinmen and Matsu, and the United States  
 
 
 By means of a communication from the Delega tion of Viet Nam, dated 16 September 2008, 
the Secretariat has received the following r esponses to questions posed by the European 
Communities, Japan, Switzerland, the Separate Cu stoms Territory of Taiwan, Pengu, Kinmen and 
Matsu and the United States circulated in do cuments IP/C/W/509, 507, 511, 506 and 508, 
respectively.  
_______________ 
 
 
TABLE OF CONTENTS 
 
A.
 GENERAL PROVISIONS ................................................................................................................1  
B. COPYRIGHT AND RELATED RIGHTS ............................................................................................3  
C. GEOGRAPHICAL INDICATIONS ....................................................................................................5  
D. PATENTS ............................................................................................................................... .......7  
E. PROTECTION OF UNDISCLOSED INFORMATION ...........................................................................9  
F. IPR  ENFORCEMENT :  CIVIL MEASURES ....................................................................................13  
G. IPR  ENFORCEMENT :  ADMINISTRATIVE MEASURES .................................................................14  
H. IPR  ENFORCEMENT :  BORDER CONTROL MEASURES ...............................................................19  
I. IPR  ENFORCEMENT :  CRIMINAL MEASURES .............................................................................21  
J. POLICIES /ACTION PLANS FOR ENHANCING IPR  PROTECTION /ENFORCEMENT ........................25  
K. OTHERS ............................................................................................................................... ......26  
 
A. GENERAL PROVISIONS  
1. (United States question no. 8):  Article 7(2) of Viet Nam's Law on Intellectual Property 
states that "[t]he exercise of intellectual property rights must neither be prejudicial to the 
State's interests, public interests or legitimate rights and interests of other organizations and individuals, nor violate other provisions of law."  Article 7(3) in turn states that "the State may prohibit or restrict the exercise of intellectual property rights by the holders or compel the licensing by the holders of one or several of thei r rights to other organizations or individuals 
with appropriate terms." IP/C/W/514 
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  We understand that Viet Nam's position is that  Article 7(2) is not intended to set out any 
limitation on copyrights and related rights, but aims at the limitations applicable to some 
industrial property rights, especially certain identified patent rights.  With regard to concerns that Article 7(3) permits Viet Nam to restrict right holders from exercising lawful rights and 
that it could allow unlimited compulsory licensi ng of copyrighted materials, we understand that 
Viet Nam has asserted that this Articl e, also, does not apply to copyright. 
It would be helpful if Viet Nam could provide support for the claim that Article 7(2) and 
7(3) do not apply to copyright and related rights .  Conversely, if they do apply to copyright and 
related rights, please describe how Viet Nam ensures that these provisions respect Viet Nam's 
TRIPS obligations. 
2. (European Communities question no. 1):  Article 7.3 of the Intellectual Property Law 
establishes that "In circumstances where the achievement of defence, security, people life-related objectives and other interests of the Stat e and society specified in this Law should be 
guaranteed, the State may prohibit or restrict the exercise of intellectual property rights by the holders or compel the licensing by holders of one or several of their rights to other organizations 
or individuals with appropriate terms." 
Please assess the compliance of Arti cle 7.3 with the TRIPS Agreement. 
Article 7 (Limitations to intellectual property ri ghts), as a whole in general and its sections 
7(2) and 7(3) in particular are stipulated in the Intellectual Property Law for the sole purpose of striking the balance of interest between the indi viduals (i.e. the IPR owners) and the public (the 
society) with a view to creating incentives fo r the creative research, production and business 
development towards the higher living standards of the society in terms of material and spiritual 
conditions. 
Particularly, Article 7(2) expresses the principle that IP protection does not affect either the 
IPR owner's obligations with respect to the legitima te interest of the other individuals and entities or 
his obligations under the other laws and regulatio ns.  That is an obvious principle having been 
recognized both in national la ws and international law. 
Article 7(3) represents the power of the State to  interfere in the urgent circumstances for the 
purposes of national defence, security, people living a nd other interests of the society.  That is a 
permitted exception under the TRIPS Agreement with regard to the exclusive rights of the IPR owner. 
Furthermore, Article 7(3) stipulates clearly that the exercise of the State's authority shall be "subject to 
appropriate conditions", rather than "not include an y of the limitations or procedural requirements" as 
concerned by the US.  For instance, when Article 7( 3) is applied for such a particular intellectual 
property object as invention, it is required to conf orm to the conditions and procedures set forth in 
Section 3 of Chapter X concerning compulsory licensing of inventions;  and as for plant varieties to those set forth in articles from 195 to 197 of Chapter XV, as for a protected plant variety. 
Article 7(3) also specifies clearly that the State only has power to interfere in such 
circumstances that are "s tipulated in this Law", under which, there is no provision providing for the 
compulsory licensing in respect of copyrights or rela ted rights as to patents and plant varieties, but the 
Law only provides for circumstances where uses of works without permission are allowed (fair uses) 
in Articles 25, 26, 32 and 33;  and in respect of trademarks, there is completely no provision on 
compulsory licensing. 
For such reasons, the provisions of Articles 7(2)  and 7(3) are not inconsistent to the TRIPS 
Agreement.  IP/C/W/514 
 Page 3 
 
 
  3. (Japan question no. 1):  Please explain wh ether and how the laws and regulations of 
Viet Nam comply with Article 2.1 of the TR IPS Agreement requiring that Members comply 
with all Articles 1 through 12 of the Paris Convention (1967). 
Viet Nam has been party to the Paris Conventi on since 1949, therefore, Vietnamese laws and 
regulations on industrial property have been estab lished and developed on th e fundamental principle 
of ensuring compliance with the requirements of the Paris Convention.  This was made clear by 
Viet Nam during its accession process to the WTO.  Please find further details in the Report of the Working Party on Accession of Viet Nam to the WTO. 
B. C
OPYRIGHT AND RELATED RIGHTS  
4. (United States question no. 9):  Article 42 of  Viet Nam's Law on Intellectual Property 
states that "The State shall be the holder of co pyright in the following works:  a) Anonymous 
works..." 
Article 2(6) of the Berne Convention states that "This protection [of the Convention] 
shall operate for the benefit of the author and hi s successors in title." Likewise, Berne Article 3 
states that "The protections of this Convention shall apply to: a) authors who are nationals of 
one of the countries of the Union...;  b) authors who are not nationals of one of the countries of 
the Union..." 
Is Article 42 of the Law on Intellectual Property, which vests copyright in anonymous 
works in the state rather than in the author, compatible with the Berne/TRIPS injunction to 
protect "authors?"  If so, please explain how? 
Is Article 42 compatible with Article 15 of th e Berne Convention which states that "[i]n 
the case of anonymous...works..., the publisher wh ose name appears on the work shall... be 
deemed to represent the author, and in this capacity shall protect and enforce the author's 
rights?"  If so, please explain how? 
Please also explain how Article 42 operates when an anonymous work's author's identity 
becomes well known.  Does the state retain the co pyright in such circumstances?  What happens 
if the anonymous work's author declares himself and demands rights in the work? 
Article 42 of the Intellectual Property Law provides that the State shall be the holder of 
copyright to anonymous works and the use of su ch works must comply with those conditions 
specified by the Government at the Decree No . 100/2006/ND-CP, under which, the Copyright Office 
of Vietnam (COV) shall be the representative for th e State to exercise the holder's rights (Article 29). 
The above-mentioned provision on anonymous work s is an exception to general provisions on the 
ownership of ordinary works, for works where the identity of the real owner is unknown, which is 
consistent with the provisions of Article s 15.3 and 15.4 of the Berne Convention.  
According to Article 28.2 of the Decree No. 100/2006/ND-CP, where an anonymous work is 
managed by an organization or individual (incl uding publisher whose name appears on the work), 
such organization or individual shall enjoy the ri ghts of a copyright holder and shall be entitled to 
exercise those rights in accordance with laws and re gulations).  This provision is fully compliant with 
the provision of Article 15.3 of the Berne Convention. 
Article 28.3 of the Decree No. 100/2006/ND-CP specifies that "When the name of the real 
owner of a/an [anonymous]  work is identified, the ownership of th e work shall belong to such owner 
as from the date his/her name is identified." Accordingly, the author/real owner of an anonymous 
work may publicly declare or notify the organization or individual that is managing the work (such as IP/C/W/514 
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  the Copyright Office of Vietnam or the publishe r whose name appears on the work) as well as 
organizations or individuals that are using the work about his/her capacity as the work owner and exercise the rights of the copyright holder as provided for by Article 198 of the Intellectual Property Law.  In case of dispute, that person may request the courts to resolve dispute under civil procedures. 
In case of infringement, that person may request st ate competent agencies to handle the infringing 
acts.  However, in order to exercise (enforce) th e rights of the copyright holder as mentioned above, 
that person has to fulfil the obligation to prove his/ her capacity as the right holder (Article 203.2 of the IP Law, further detailed at Article 24.3 of the Decree No. 105/2006/ND-CP of 22 September 
2006).  
5. (European Communities question no. 2):  Article 17.4 on the Intellectual Property Law 
establishes that "Performances, phonograms, video recordings, broadcasts and encrypted 
program-carrying satellite signals shall only be  protected under the provisions of Clauses 1, 2 
and 3 of this Article provided that they are not prejudicial to copyright." 
Article 17.4 seems to create a hierarchy of copy rights over related rights.  Please explain 
the meaning of the expression "provided that  they are not prejudicial to copyright".  
The expression 'provided that they are not prejudicial to copyright" which is stipulated in 
Article 17.4 of the IP Law on protection of related rights does not aim to create any hierarchy or discrimination between copyrights and related rights.  On the contrary, that provision was elaborated 
to ensure that both copyrights and related rights mu st be respected and protected in an adequate and 
consistent manner.  Accordingly, the exercise of re lated rights shall not affect or prejudice copyrights 
to works that were used in the subject matter of the relevant rela ted right (performances, phonograms, 
video recordings, broadcasts and encrypte d programme-carrying satellite signals). 
In other words, Article 17.4 is to ensure that copyrights to a work must be protected 
simultaneously with the related right th at relates directly to such work. 
6. (European Communities question no. 3):  Please specify the meaning and the legal 
consequence of Article 40 of the Decree 100/2006 , Detailing and Guiding the Implementation of 
a Number of Articles of the Civil Code and the Intellectual Property Law Regarding the 
Copyrights and Related Rights. 
Please explain under which conditions "those various kinds of copyright certificates" 
shall continue to be valid. 
7. (European Communities question no. 4):  Plea se indicate whether the Copyright Office 
of Vietnam mentioned in Article 6.3 of the Decree 100/2006 has already taken over the 
Copyright Protection Firm of Vietnam and the Co pyright Protection Agency of Vietnam, both 
mentioned in Article 40 of the same Decree. 
Those various kinds of copyright certificates granted by the competent state management 
authorities (originally Copyright Protection Firm of Vietnam, later renamed as the Copyright 
Protection Agency of Vietnam, then the Copyri ght Office for Literature and Art and now the 
Copyright Office of Vietnam) shall automatically ma intain their validity, without any condition, under 
the IP Law, if they are still valid on the effective date of the IP Law. 
Various titles mentioned in Article 40 of th e Decree No. 1 00/2006/ND-CP (the Copyright 
Protection Firm of Vietnam, the Copyright Protection Agency of Vietnam, the Copyright Office for Literature and Art) are previous titles (names) of the Copyright Office of Vietnam.  All those titles 
refer to the same agency functioning state manageme nt on copyrights and related rights, currently the 
Copyright Office under the Ministry of Culture, Sports and Tourism.  IP/C/W/514 
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  C. GEOGRAPHICAL INDICATIONS  
8. (United States question no. 7):  Please explai n any policies or requirements maintained 
by Viet Nam regarding the substantiation, by another WTO Member's government, of information submitted in connection with app lications seeking the protection of geographical 
indications in Viet Nam.  Please explain ho w any such policies ensure that the national 
treatment obligations of the TRIPS Agreement are respected. 
Article 106 of the Intellectual Property Law require s that application for registration of a GI 
must include "documents evidencing that the ge ographical indication is under protection in the 
country of origin if it has foreign origin ".  Th is requirement is to ensure necessary conditions for 
examining geographical indications in accordance w ith protection criteria which are stipulated in 
Article 80.2 of the IP Law, under which, geographical  indications of a foreign country shall not be 
protected in Viet Nam if in the country of origin, that geographical indication is not or no longer protected or no longer used.  The above provision on  exclusion of protection is a permitted exception 
under Article 24.9 of the TRIPS Agreement. 
Viet Nam does not establish any policy or re quirement on the substantiation, by the 
government of the country of origin, of informati on submitted in connection with applications seeking 
the protection of GIs in Viet Nam.  However, in order to ensure that the claimed GI does not fall 
within the category of subject matters not protect ed as a geographical indication in accordance with 
the above-mentioned rule, the applicant for registra tion of a foreign GI must provide information, 
documents presenting that the relevant GI does not fall within the case that must be subjected to 
refusal, i.e. "the geographical indication is not or no longer protected or no longer used in the country 
of origin" (Article 45.3 (b) Circular No. 01).  
Information, documents to be submitted are understood as any document proving that the GI 
is protected in the original country under laws and re gulations of the country of origin (e.g. certificate 
of registration of GI, certificate of registration of collective mark/certification mark, documents 
proving that GI satisfies the requirements to deserve auto-protection in the original country, an extract 
of the national register of GI etc.).  Every appli cation of GI must include all documents which prove 
that the GI qualifies all criteria to be protected in  Viet Nam.  The difference between the local and the 
foreign application of a GI (but not the difference between the treatment accorded to the nationals of 
Viet Nam and that accorded to the nationals of othe r countries) is due to the difference in protection 
conditions for the local GI and the foreign GI which is allowed under Article 24.9 of the TRIPS 
Agreement, and therefore, is not inconsistent to the national treatment principle of the TRIPS 
Agreement. 
9. (Japan question no. 2):  Please describe in detail how the laws and regulations of 
Viet Nam provide for protection of geographical indications required by Article 22.2 of the TRIPS Agreement, citing to the relevant provi sions of laws and regulations, and provide 
examples of geographical indications so protected. 
The Intellectual Property Law provides for geographical indication protection in compliance 
with requirements of Article 22.2 of the TRIPS Agreement: 
Acts deemed to be infringements of the right to geographical indications – prohibited acts 
(Article 129.3):  
 
Using protected geographical indications for products which do not satisfy the criteria of 
peculiar characteristics and quality of products be aring geographical indications, although such 
products originate from geographical areas bearing such geographical indication; IP/C/W/514 
Page 6  
 
  Using protected geographical indications for products similar to products bearing 
geographical indications for the purpose of taking advantage of their reputation and popularity; 
Using any sign identical with, or similar to, a protected geographical indication for products 
not originating from geographical areas bearing such geographical indication, and therefore 
misleading consumers into believing such produc ts originate from such geographical areas; 
Using protected geographical indications of wines or spirits for wines or spirits not 
originating from geographical areas bearing such geog raphical indication, even where the true origin 
of goods is indicated or geographical indications are u sed in the form of transl ations or transcriptions, 
or accompanied by such words as "category," "model," "type," "imitation" or the like. 
Civil remedies - applicable to  infringements of intellectual property rights in general 
(Article 202):  
 
• Compulsory termination of the infringing acts; 
 
• Compulsory public apology and rectification; 
 
• Compulsory performance of civil obligations; 
 
• Compulsory payment of damages for loss; 
 
• Compulsory destruction, distribution or use for non-commercial purposes of goods, raw 
materials and materials, and instruments used principally for the production of or trading in goods which infringed intellectual property rights, provided that such destruction, 
distribution or use will not affect the exploitation of rights by intellectual property right 
holders. 
 
Administrative penalties
 applicable to the acts of infringements causing damages to society as 
provided for in Article 211 (namely, causing loss and damage to society and consumers that relating 
to goods bearing counterfeit geographical indica tions and intentional wilful infringements) 
(Article 214), include: 
 
Principal penalties: 
• Compulsory termination of infringement act; 
 
• Caution or monetary fines with an amount that  is set at least equal to the value of the 
detected infringing goods but shall not exceed five times such value. 
 
Additional penalties: 
• Confiscation of intellectual property counterfe it goods, raw materials and materials, and 
instruments used mainly for production of or trading in such geographical indication counterfeit goods; 
 
• Suspension of business activities for a fixe d period in the sector in which the 
infringement was committed. 
  IP/C/W/514 
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  Measures for remedying consequences: 
• Compulsory destruction, distribution or use for non-commercial purposes of intellectual 
property counterfeit goods as well as raw materi als and materials, and instruments used 
mainly for production of or trading in su ch intellectual property counterfeit goods, 
provided that such destruction, distribution or use will not affect the exploitation of rights 
by intellectual property right holders; 
 
• Compulsory transportation out of the territo ry of Viet Nam of transit goods infringing 
intellectual property rights or compulsory re -export of intellectual property counterfeit 
goods and imported materials and raw materi als, and instruments used mainly for 
production of or trading in such intell ectual property counterfeit goods after the 
infringing elements have been removed from such goods. 
 
Criminal remedies  
 
Criminal remedies shall be applied to serious infringements in accordance with Article 171 of 
the Criminal Code and the Joint Circular No. O1/2008ITTLT-TANDTC-VKSNDTC-BCA-BTP of 29 
February, 2008 of the Supreme People's Court, the Supreme People's Procuracy, the Ministry of 
Public Security and the Ministry of Justice provi ding guidance for penal liability for infringements of 
intellectual property rights. 
Up to June 2008, 13 geographical indications we re protected in Viet Nam, 11 of which are 
Viet Nam's geographical indications relating mainly  to well-known special agricultural products of 
localities (fish sauce, alcohol, orange, pomelo, blue dragon, rice, Thieu litchi, tea).  In addition, 
several applications for foreign and domestic geograp hical indication registration are in the process of 
consideration to issue certificates of geographical indication registration. 
10. (Japan question no. 3):  Please describe in detail the manner in which the higher level of 
protection required for wines and spirits under Article 23.1 of the TRIPS Agreement is 
implemented, citing to the relevant provisions of laws and regulations, and provide examples of 
geographical indications for such products. 
Article 129.d of the Intellectual Property Law pr ovides a higher level of protection for wines 
and spirits, by which, acts of infringement of the right to protected geographical indications include: 
Using protected geographical indications of wines or spirits for wines or spirits not 
originating from geographical areas bearing su ch geographical indication, even where the true 
origin of goods is indicated or geographical indica tions are used in the form of translations or 
transcriptions, or accompanied by such words as "cat egory," "model," "type," "imitation" or the like.  
D. PATENTS  
11. (Switzerland question no. 1):  Please indicate  how Article 31(j) of the TRIPS Agreement 
(judicial review of any decision relating to the remuneration) is implemented in Viet Nam's legislation? 
The Law on Complaints and Denunc iations 1988, last amended in 2005, gurantees judicial 
reviews of any decision relating to the remuneration as follows: 
Where there is ground to determine that an admi nistrative decision of a state administrative 
authority is inconsistent with laws  and regulations, violating one's le gitimate rights and interests, the IP/C/W/514 
Page 8  
 
  injured individual or organization shall be entitled to appeal such decision (Article 1) firstly to the 
person that issued the administrative decisi on in question (first appeal) (Article 30). 
Where a stipulated time limit has expired but the first appeal has not been resolved or where 
the appeallant does not agree with the decision on reso lving a first appeal, then the appeallant shall be 
entitled to proceed to the second appeal before the persons having jurisd iction over second appeal 
(except where the first appeal has b een resolved by a Minister, Head of a Ministry equivalent Agency 
or Chairman of the Provincial People Committee) or proceed with litigation to the administrative 
court (Article 39).  
Where stipulated time limit has expired but th e second appeal has not been resolved or where 
the appeallant does not agree with the decision on r esolving second appeal then the appeallant shall be 
entitled to proceed with litigation to the administrative court  (Article 46).   
Accordingly, every administrative decision may be subject to judicial litigation before the 
administrative court (i.e. may be reviewed by  the court under the procedures for resolving 
administrative cases) provided that the procedures for administrative appeal have been conformed. 
Decision relating to remuneration which is a require d content of the Decision on granting compulsory 
license of patents, issued by relevant ministries and ministry-level agencies (according to Article 
147.1 of the IP Law) is an administrative decision and therefore also subject to the law provisions on 
appeals/complaints as mentioned above.  
12. (Switzerland question no. 2):  Please indica te whether Viet Nam is planning to 
implement Article 31 bis of the TRIPS Agreement relating to public health.  If so, please give 
information on the state of play and the expected ti me-scale pertaining to the national legislative 
procedure as well as on details relating to the s ubstance of the implementing national legislation 
on this matter. 
Viet Nam supports the work of developing intellectual property policy and strategy for public 
health as demonstrated in Article 3 of the TR IPS Agreement.  Viet Nam is now studying the 
possibility of implementing the relevant procedures for ratifying the Protocol on Amending the TRIPS 
Agreement regarding Article 31 bis.  After completing the ratification procedure Viet Nam will then 
have a plan for legislation amendment and implementation of the above-mentioned policy. 
13. (Japan question no. 4):  Please explain whether, under laws and regulations of 
Viet Nam, specific measures exist that protect the legitimate interests of defendants in their manufacturing and business secrets consistent with  Article 34.3 of the TRIPS Agreement, and 
what is the specific authority that provides such protection. 
The Civil Proceeding Code incl udes the following regulations which ensure the compliance 
with Article 34.3 of the TRIPS Agreement on protecti on of legitimate interests of defendants in their 
manufacturing and business secret in the pro cedures for producing evidence/proof of non-
infringement of a process-patent: 
• Litigants have the right to request the Cour t not to publicly disclose evidence related to 
occupational secrets, trade secrets or privacy in  order to protect their legitimate interests 
(Article 97.2).  At the same time, they also  have the right to request the council of 
adjudicators not to publicly disclose such evid ence or material in the dossier of the case 
(the law suit) (Article 227.3). 
 
• The people conducting the proceedings (including  the Chief Justice of the Court, judges, 
jury, court clerks, director of inspectorates, prosecutors) and people participating in the 
proceedings (plaintiff, defendants, advocat es, people protecting the lawful rights and  IP/C/W/514 
 Page 9 
 
 
  interests of a concerned party, witness, in terpreters, representatives) shall have the 
responsibility to keep the evidence confidentia l which is not allowed to be disclosed 
publicly (Article 97.3). 
 
E. PROTECTION OF UNDISCLOSED INFORMATION  
14. (European Communities question no. 5):  Please indicate the specific provisions 
implementing Article 39.3 of the TRIPS agreement. 
15. (Japan question no. 5):  Please explain how th e legislation of Viet Nam provides for the 
protection of "Undisclosed Information" as re quired by Article 39.1 and 39.2 of the TRIPS 
Agreement.  Please explain in detail (including th e definition of "Undisclosed Information", acts 
to be prohibited, and provided civil or other rem edies) and please cite the relevant provisions of 
laws and regulations of Viet Nam. 
16. (Japan question no. 6):  If the legislation of  Viet Nam ensures that undisclosed test or 
other data submitted by an applicant to th e responsible state agency in the procedure for 
market authorization of a pharmaceutical or an  agricultural chemical product is protected 
against disclosure and against unfair commercial use by a competitor, for example by 
prohibiting a second applicant for a similar product from relying on original data of the first 
applicant, when applying subsequently for mark et authorization for a similar product, please 
explain it in detail. Does the legislation of Vi et Nam provide for exceptions to this?  Does the 
legislation of Viet Nam set a specific term of protection by the responsible state agency for undisclosed test or other data of the first applican t?  If yes, please explain such specific terms in 
detail, citing the relevant provisions of laws and regulations. 
17. (Chinese Taipei question no. 2):  Could Viet Nam please provide us with details of its 
regulations on Data Exclusivity and Experimental Use Exemptions? 
The protection of undisclosed information as re quired by Article 39 of the TRIPS agreement: 
Undisclosed information, including undisclosed data is protected by Viet Nam IP law as an 
independent industrial subject matter, called "busines s secrets".  Undisclosed data is protected by the 
general principles of "business secrets" protecti on and provisions on responsibility for keeping the 
data of State competent authorities secret.  
Protection of undisclosed information as requi red by Article 39.2 of the TRIPS Agreement: 
 
Subject matter of protection  (Article 4.23):   Business secrets is information obtained from financial, 
intellectual investment which is undisclosed and susceptible to application in business.  
Establishment of rights (Article 6.3.c):   Rights to business secrets shall be established on the basis of 
legal acquirement and secret keeping of the business secrets;  
Requirements for protection (Article 84):   business secrets  
• Neither to be common knowledge nor easily obtained; 
• To be capable, when being used in the cour se of business, to render advantages to its 
holder over those who do not hold or use it; 
• To be kept secret by its owner with necessary measures so that it shall neither be 
disclosed nor easily accessible. IP/C/W/514 
Page 10  
 
  Acts of infringing the rights to business secrets – Prohibited acts (Article 127): 
 
• Accessing or acquiring information embodied in a business secret by taking acts against 
secret-keeping measures taken by the lawful controller of the business secret; 
 
• Disclosing or using information embodied in a business secret without permission of the 
owner of the business secret; 
• Breaching secret-keeping contracts or deceiving,  inducing, bribing, forcing, seducing or 
abusing the trust of persons in charge of secret-keeping in order to access, acquire or 
disclose a business secret; 
• Accessing to or acquiring information embodied in a business secret, that is submitted by 
another person under procedures for granting a business license or marketing in respect of a product, by actions against secret-keeping measures taken by competent agencies; 
• Using or disclosing business secret, while know ing or being obliged to know that it has 
been acquired by another pers on engaged in one of the acts referred to in subparagraphs 
a, b, c and d of this paragraph; 
• Failure to perform the obligation of secret keeping provided for in Article 128 of this 
Law. 
 
Exceptions — Unprohibited acts (Article 125.3): 
 
• Disclosing or using the business secret acqui red without knowing or without obligation 
to know that it has been illegally acquired by others; 
 
• Disclosing the business secret in order to protect the public in accordance with the 
provisions of Article 128.1 of this Law; 
 
• Using secret data in accordance with Artic le 128 of this Law for non-commercial 
purposes; 
 
• Disclosing or using the business secret created independently by others; 
 
• Disclosing or using business secrets resulti ng from analysing or evaluating legally 
distributed a product, unless otherwise agreed  between the analysers or evaluators and 
the owner of the business secret or the sellers of such product. 
 
Civil remedies (Article 202): 
 
• Compelling termination of the infringeme nt of intellectual property rights; 
 
• Compelling public rectification and apology; 
 
• Compelling the performance of civil obligations; 
 
• Compelling compensation for damages; 
 
• Compelling destruction, distribution or use for non-commercial purpose in respect of 
goods, materials and instruments used predominantly for production of or trading in  IP/C/W/514 
 Page 11 
 
 
  intellectual property right infringing goods, pr ovided that such distribution and use will 
not affect the exploitation of rights by the intellectual property right holders. 
 Administrative remedies (Article 214):   applied to infringers who do not terminate an act of 
infringement of intellectual property rights, even if  a written notice has been served by the intellectual 
property right holders as provided for in 211.1 .b: 
 
• Compelling termination of the infringeme nt of intellectual property rights; 
 
• Warning or monetary fine and the fine rates shall be at least equal to the value of the 
discovered infringing goods, but must not exceed five times that value. 
 Protection of test data as required by Article 39.2 of the TRIPS Agreement
 
 Subject matter (Article 128.1): 
• Test data or any data provided by the a pplicant for a business licence or marketing in 
respect of pharmaceutical products or agricultural chemical products for the competent authorities as required by the laws. 
 
Requirements for test data eligible for protection
 (Article 128.1): 
 
• Being business secrets, the origination of wh ich involves a considerable efforts or 
expenses; 
• The applicant requests that such data to be kept secret.  
Protection (Article 128.1):  
• The authority shall have obligation to take  necessary measures so that such data are 
neither used for unfair commercial purposes nor disclosed, except where the disclosure is 
necessary to protect the public; 
 
• To the end of 5-year period as from the da te on which a license is granted to the 
applicant, the authority shall not grant such  a license to any subsequent applicant in 
whose application the secret data are used without permission of the person who 
submitted such data, except it is created independently by the later. 
 
There is no concept of "Data Exclusivity" in Vi et Nam's IP legislation.  The protection of 
test data includes protection against public disclos ure, use for unfair commercial purposes, and use for 
applying for a license of marketing the products in particular. 
 
Exceptions  (Article 125.3.b and c): 
• Disclosing the business secret in order to protect the public; 
• Using secret data, including test data for non-commercial purposes. 
 IP/C/W/514 
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  18.  (European Communities question no. 5):  A ccording to Article 128.1 of the Intellectual 
Property Law, applicants for licenses for trad ing in or circulating pharmaceuticals or 
agrochemical products need to specifically request  such data to be kept secret.  Please also 
access the compliance of Article 128 with the Article 39 of the TRIPS Agreement. 
In compliance with Article 39 of the TRIPS Ag reement, the IP Law provides protection of 
sceret data if such data meets certain conditions  (as mentioned in the question above), but not 
protection of all data in the request for circulation of the product.  In order to keep the data secret, the 
competent licensing agency must know which data in the registration record is subject to protection. 
Therefore, the applicant should make a claim, identify data to be pr otected, and prove that such data 
meets protection conditions.  
19. (United States question no. 3):  Regarding Arti cle 2(3) "Regulation on Data Security of 
Drug Registration Records" ("Regulation on Data  Security"), please explain what is meant by 
"circulated pharmaceutical substances." 
(question no. 4):  Regarding the term "busin ess secret" as it is used throughout the 
Regulation on Data Security, please explain th e criteria by which it is determined that 
information received from financial investment or  intellectual activities becomes qualified to be 
a "business secret", and what laws, regulations, decrees, etc., provide for any such criteria. 
(question no. 5):  Regarding Article 4(2), pl ease explain what constitues "significant 
effort". 
(question no. 6):  According to Article 4( 1), data to be secured must qualify as a 
"business secret".  Please explain the reasoning behind the requirement that the date to be 
secured under Article 10(2) must qualify as a "business secret". 
The above regulations stipulated in the Regul ation on data security of drug registration 
records (issued by the Decision No. 30/2006/QD-BY T of 30 September 2006) should be interpreted 
as follows: 
Circulated pharmaceutical substances  can be interpreted that substances of the final drugs are 
allowed to be circulated in Viet Nam according to  regulations on registration of drug circulation. 
A business secret  stipulated in Article 4.23 of the IP Law, means information obtained from 
activities of financial and/or intellectual investment, which has not yet been disclosed and can be used 
in business. 
Significant effort  is one of protection conditions for secr et data, stipulated by the IP Law 
(Article 128.1) corresponding to the requirements in Article 39.3 of the TRIPS Agreement.  This term 
has not been specifically interpreted in  the IP Law and the existing guidelines. 
The requirement that the date to be pr otected must qualify as a "business secret"  is provided 
for in Article 128.1 of the IP Law.  The Law sti pulating mechanism for protection of secret data under 
the protection of a "business secret" comes from the requirement for protection of undisclosed data 
under the protection of "undisclosed information" in  the Article 39 of the TRIPS Agreement.  Secret 
data is a kind of undisclosed information (business secr et), and only different in a way that such data 
should be submitted to a competent State agency in  compliance with procedures for registration of 
product circulation.  Therefore, undisclosed data  is protected according to general principles on 
protection of a "business secret" and particular regula tions on responsibility of a state agency for data 
security in order that after being submitted, the da ta is still protected as if it was under the right 
holder's control.  IP/C/W/514 
 Page 13 
 
 
  20. (Chinese Taipei question no. 1):  Please provide information on the new drug 
registration procedures and regulations co ncerning the review of clinical trial. 
(question no. 3):  May we have informat ion on Viet Nam's regulations concerning 
generic drug registration and the bioequivalence (BE) study review? 
Legal documents concerning drug registration procedures and rela ted regulations concerning 
the review of clinical trial are available on th e website of the Drug Administration of Viet Nam 
www.dav.gov.vn  
Procedures on examination of clinical trial data , which are similar to other procedures in the 
world, are implemented according to the Drug Law 2005.  Free clinical trial cases are provided in a particular document (Decision No. 01 of the Ministry  of Health on drug clinical trial in Viet Nam).  
At present, Viet Nam is developing regulations on clinical trial and free clinical trial cases for drug 
registration records. 
According to the current drug registration mech anism, new drug registration and generic drug 
registration are different in a way that there is a requirement on submitting clini cal trial results of new 
drug (which is not applied to generic drugs).  The current drug registration mechanism has no 
regulation on submitting results of bioequivalence study for generic drug. 
Viet Nam is making a draft regulation on registra tion of an amended drug (which is scheduled 
to be issued at the end of 2008) in harmoniza tion with the general regulation of the ASEAN 
(ACTD/ACTR), from which there are detailed regula tions on registration procedures and processes of 
new drugs and generic drugs; as well as specific regul ations such as list of bioequivalence trial drug, 
application process and deadline for updating th e list in common harmonization with ASEAN 
countries. 
F. IPR
 ENFORCEMENT :  CIVIL MEASURES  
21. (European Communities question no. 13):  Article 47 of the TRIPS Agreement 
establishes that "Members may provide that the judicial authorities shall have the authority, unless this would be out of proportion to the seriousness of the infringement, to order the infringer to inform the right holder of the identi ty of third persons involved in the production 
and distribution of the infringing goods or serv ices and of their channels of distribution" 
Please explain how your legislation implements the requirement of Article 47 of the 
TRIPS Agreement.  Please cite the relevant provisions of law. 
The civil procedure law of Viet Nam has no sp ecific provision that enables the authority to 
force the infringer to inform the right holder of the identity of third persons involved in the production 
and distribution of the infringing goods or services and of their channels of distribution as provided 
for in Article 47 of the TRIPS Agreement. 
22.  (Japan question no. 7):  Article 43.1 of the TRIPS Agreement requires that judges be 
authorized to order production of evidence necess ary to substantiate a party's claim, where that 
party has been unable to obtain such evidence fr om the opposing party.  Please describe how 
the laws and regulations of Viet Nam provide this authorization, citing to the relevant 
provisions of laws and regulations. 
Pursuant to Article 94 of the Civil Procedure C ode of Viet Nam, the right holder may request 
the court to gather evidence of the infringing act if  he/she could not by himself/herself gather that 
evidence although having taken the necessary measures. IP/C/W/514 
Page 14  
 
  In order to make the above request acceptable, the right holder must submit a petition in 
writing to the court in which he/she should indicate clearly the requested evid ence to be gathered, the 
reason why he/she was unable to collect that eviden ce; full name and address of the individual or the 
entity or the organization who is controlling or holding that evidence.  
The court may, by ordering directly or by se nding a notice, require the related individual or 
entity or organization who is controlling or holdin g the evidence to submit in time and in full the 
evidence and information at the request of the court within 15 days from the date of receipt of the 
right holder's request. 
23. (Japan question no. 8):  Please indicate what remedial mechanism is provided for the IP 
right-holders to acquire compensation enough to cover damages they suffer from infringements, 
in particular, how to assess the amount of dam ages in cases where the right holder is unable to 
present evidence to prove the exact amount of damages. 
The IP Law provides for the remedies that enab le the right holder to request the infringer to 
pay for the damages that he/she suffered from the infringing acts, pursuant to Articles 204 and 205 of IP Law and Articles 16, 17, 18, 19 and 20 of Decree 105/2006/ND-CP. 
Where the right holder cannot present full proofs to  substantiate his claim of damage, he/she 
may claim the presumed damage which is calculate d on the basis of an appropriate licensing price 
(presumed royalty), or an amount of the prescribed compensation which is fixed by the court depending on the extent of the loss but not exceeding VND 500 million, according to Article 205.1.c of the IP Law. 
G. IPR
 ENFORCEMENT :  ADMINISTRATIVE MEASURES  
24. (European Communities question no. 9):  With regard to the Compelled Distribution or 
use for non-commercial purpo ses, please explain how the applicability of the conditions 
contained in Article 30.1 of the Decree 105/2006 of 22 September, 2006 is assessed in the cases foreseen in Article 30.2: raw materials, ma terials and means for producing and trading 
intellectual property counterfeit goods or infringing goods. 
Article 30.1 of the Decree 105 stipulates four c onditions that must be taken into account when 
applying the compelled distribution or use for non-commercial purposes of IP counterfeit goods and 
IPR infringing goods. 
Article 30.2 of the Decree 105 provides that four conditions mentioned above must also be 
considered when applying the above measure in  respect of materials and instruments used 
predominantly for production of or trading in  IP counterfeit goods and IPR infringing goods. 
The evaluation of the conditions to be applied in respect of infringing goods set forth in 
Article 30.1 is not different from that which is app licable to infringing materials and instruments as 
stipulated in Article 30.2 mentioned above. 
25. (European Communities question no. 10):  Plea se indicate the authorities responsible for 
the application of the Compelled Destruction foreseen in Article 31 of the Decree 105/2006 of 
22 September, 2006.  Please provide relevan t data on Compelled Destruction actions 
undertaken under the aforementioned Decree. 
All the authorities having competence to handl e IPR infringing acts by the administrative 
measures pursuant to Article 200.3 of the IP Law ar e empowered to apply the compelled destruction 
of infringing goods.  IP/C/W/514 
 Page 15 
 
 
  26. (European Communities question no. 11):  Please cite the other administrative remedies 
and sanctioning competence and procedures me ntioned in Article 33 of the Decree 105/2006 of 
22 September, 2006. 
Article 33 of the Decree 105 provides:  "oth er administrative and remedial measures; 
authority and procedures to impose sanctions and fi nes on infringing acts shall be in accordance with 
regulations on administrative sanctions in the fields  of copyright and related rights, industrial property 
rights and rights to plant varieties." 
The above provision is to make clear that the Decree 105 (the general regulation on IPR 
protection and the State management of IP issues)  only provides for certain fundamental remedies 
applicable to handling of the infringement goods, and does not provide for particular sanctions and 
remedies applicable to the infringing acts as well as the authority of enforcement agencies and the 
procedures to apply such remedies.  The issues that are not covered by the Decree 105 shall be 
regulated by the particular decrees on hand ling the infringements in the specific area: 
• Decree 56/2006/ND-CP dated 6 June 2006 on ha ndling administrative violations in 
culture and information activities; 
 
• Decree 1 06/2006/ND-CP dated 22 Septem ber 2006 on handling administrative 
violations in industrial property; 
 
• Decree 57/2005/ND-CP date 27 April 2005 on handl ing administrative violations in the 
area of plant varieties. 
 
The above decrees stipulate particularly the re medies, measures, authority, and procedures 
applicable to each infringing act in the fields of co pyright, related rights, industrial property rights, 
and rights to plant varieties, in compliance with the IP Law and the Ordinance on handling of administrative violations 2002. 
27. (European Communities question no. 12):  Article 48.2 of the TRIPS Agreement 
establishes that "In respect of the administration of any law pertaining to the protection or enforcement of intellectual property rights, Memb ers shall only exempt both public authorities 
and officials from liability to appropriate remedial measures where actions are taken or 
intended in good faith in the course of the administration of that law." 
Please explain how your legislation implements the provisions set forth in Article 48.2 of 
the TRIPS Agreement. 
Generally, the responsibilities of the government officials in the course of implementation of 
their duties are stipulated in the Ordinance of the civil servants and officials 2003.  In certain areas, 
there are specific regulations on the responsibili ties of the officials in the course of their 
implementation of duties.  For example, the Or dinance of handling administrative violations 2003 
provides for the responsibilities of the authorities ha ving competence in applying the administrative 
sanctions.  The Customs Law 2001 provides for th e responsibilities of the customs officers in 
implementation of border control measures.  The Appeals and Denouncements Law 1998 provides for 
the responsibilities of authority having competence in  handling of appeals and denouncements.  In the 
said laws and regulations, there are particular provisions on the acts and relevant circumstances 
regarding violations as well as on the applicable sanctions. 
At present, there is no specific regulation app licable to the case of officials committing some 
violation with "good faith" in the implementation of IPR enforcement duties.  The issue of liability 
exemption for officials in that case can be consider ed to elaborate in the appropriate regulations on IP/C/W/514 
Page 16  
 
  implementation of the IP Law, for the purpose of encouraging civil servants and officials to take 
ex officio actions in prevention and handling of the infringing acts as stipulated by the law. 
28. (Japan question no. 15):  Please indicate whet her the domestic trafficking or imports of 
labels indicating trademarks that are identical or similar to registered trademarks deemed as 
infringing of such trademark or by any means pr ohibited by law, even before such labels are 
actually attached to any product (registered for the registered trademarks) for distribution.  If 
this is case, please further explain in what situat ion such action is deemed as infringements, for 
example, is it necessary to prove the party's inte ntion to attach such labels to goods designated 
for the registered trademark? Is such illegal tra ffic of labels subject to criminal penalties? 
Article 211.1d) of the IP law provides that the acts of manufacturing, importing, transporting, 
trading in articles bearing a mark or a geographical indication that is identical with or confusingly 
similar to a protected mark or a protected geographical indication or assigning others to do so are regarded as IPR infringement and can be imposed by the administrative measures according to Article 
214 of the IP Law and Article 14 of Decree 106/2006/ND-CP dated 22 September 2006 or may be 
subject to the criminal prosecution if there are su fficient elements to be regarded as crimes under the 
Criminal Code. 
The labels and decals that are unfixed to th e alleged infringing products/goods can also be 
regarded as infringing objects if ther e is sufficient evidence to affirm that the intention of the infringer 
is to use the labels or decals for the products/ goods falling within the scope of protection granted to 
the registered trademark. 
29. (Japan question no. 11):  Please indicate whe re there are other measures than forfeiture 
permissible for goods which are found infringing and if so please explain about such measures 
in detail. 
Additionally, please indicate any other meas ures than destruction permissible for goods 
which are forfeited.  If so please explain about such measures in detail. 
Apart from forfeiture of infringing goods, the IP  Law provides that the competent authorities 
may apply the following measures to the infringing goods: 
• Compelled destruction or distribution or use for non-commercial purposes 
(Article 214.3.a); 
 
• Compelled delivery of the transiting goods out of the territory of Viet Nam or re-export 
of infringing goods, materials and instrument s after having removed infringing elements. 
(Article 2l4.3.b). 
 
Besides, authorities may apply preventative meas ures and ensure that administrative penalties 
shall be imposed, for example: 
 
• Temporary detention of the goods, means a nd instruments used for the infringement 
(Article 215.2.b); 
 
• Search of transportation vehicles;  search of the place where infringing goods, means and 
instruments are stored (Article 2l5.2.d). 
 Procedures for applying the above remedies are instructed in details by the IP law 
implementing regulations (the decrees of the Government on IPR protection and administrative 
sanctions in the fields of IF).  IP/C/W/514 
 Page 17 
 
 
  Apart from compelled destruction, forfeited infringing goods can also be handled with some 
other measures such as: 
• Compelled distribution or use for non-commercial purposes, provided that such 
distribution or use does not affect the exploitation of rights by the intellectual property right holders (Article 2l4.3.a of the IF La w, instructed by Article 30 of the Decree 
105/2006/ND-CP dated 22 September 2006); 
 
• Compelled delivery of the transiting goods out of the territory of Viet Nam or re-export 
of infringing goods, materials and instruments after having removed infringing elements (Article 214.3.b of the IP Law, instructed by Article 291.c ( handling of infringing goods ) 
of the Decree 105/2006/NID-CP dated 22 September 2006). 
 
The procedures for application of the above measure s are instructed in details by Article 28 of 
the Decree 106/2006/ND-CP on handling of administra tive violations concerning industrial property. 
 
30. (European Communities question no. 6):  Please provide a scheme of the different 
administrative bodies engaged in the enforcement of intellectual property rights.  Please detail 
the respective competences and cite the relevant pr ovisions of Law.  Please also explain the 
cooperation between administrative and criminal bodies, in particular with regard to the transfer of cases from the administrative to the criminal authorities. 
The chart of administrative bodies engaging in the enforcement of IPRs is given on page 18. 
The cooperation among administrative bodies and criminal bodies and the transfer of cases 
from administrative authorities to criminal authoritie s are provided in Articles 2.8, 22.3 and 24.2 
Decree No. 106/ND-CP/2006 dated 22 September 2006, namely: 
-  When a case allegedly involves criminal crime, the agency receiving the request for 
violation handling shall transf er the case to the competent agency for investigating and 
prosecuting pertaining to the criminal procedures (Article 22.2). 
-  When administrative agencies consider that a violation shows signs of a crime, they shall 
transfer the case to the criminal agencies at the same level for handling (police, 
prosecution bodies) (Article 2.8). 
-  When the evidence on goods bearing counte rfeit marks or geographical indications is 
unclear, the counterfeit goods-detecting agency shall inspect and veri fy such evidence or 
request the police to verify and gather evidence on the violation or ask for industrial 
property assessment (Article 24.2). 
 IP/C/W/514 
Page 18  
 
   Administrative bodies engaging in the 
enforcement of IPRs 
(Art. 200 IP Law, Art. 17 Decree No. 106/ND-CP dated 
22 Se ptember 2008 )
Investigative 
authorities 
Investigative  
agencies of 
local 
Department Investigative 
agencies of 
Ministries Market 
control 
units Market 
control Sub-
departments Market control authorities 
Market 
control 
Department 
Police 
Investigative 
police divisions 
for economic 
crimes of 
Provincial police 
departments Investigative 
police DepartmentCustoms 
Customs 
units Customs Sub-
departments 
at border 
gates 
People's 
committees 
People's 
committees 
at district 
level People's 
committees 
at 
provincial 
level  IP/C/W/514 
 Page 19 
 
 
  H. IPR  ENFORCEMENT :  BORDER CONTROL MEASURES  
31. (European Communities question no. 25):  Article 25.1.j of the Intellectual Property 
Law establishes that in the "Importation of copi es of others' works for personal use" permission 
and payment of royalties and/or remunerations is not required. 
Please assess the compliance of Article 25.1. j with Article 60 of the TRIPS Agreement, 
which establishes a de minimis Imports exception  to special requirements related to border 
measures for "small quantities of goods of a no n-commercial nature contained in travellers' 
personal luggage or sent in small consignments. 
Article 24 of the Decree No.100/2006/ND-CP guiding the implementation of Article 25.1 of 
the IP Law stipulates:  "Importation of copies of  another person's work for personal use as provided 
for at Point K, Clause 1, Article 25 of the Inte llectual Property Law shall only apply to case of 
importation of no more than one copy of a work." 
The number "one copy" is sufficient to ensure  the compliance with Article 60 of the TRIPS 
Agreement. 
32. (Japan question no. 14):  Please indicate whether imports or exports of products 
infringing a registered trademark or valid co pyright (and related right) subject to criminal 
penalties as such. 
Importing products infringing a registered trademark or valid copyright/related right is 
considered as an act of IPR infringement and may be  subject to the criminal prosecution if there are 
sufficient elements to constitute a crime as pr ovided for in Article 171 of the Criminal Code, 
instructed by the Joint Circular No. 01/ 2008/TTLT-TANDTC-VKSNDTC-BCA-BTP.  The above 
provisions do not apply to the act of exporting products. 
33. (Japan question no. 9):  We understand all im ports and exports suspected as infringing 
intellectual property rights, not only counterfeit tr ademarks or pirated copyright goods, may be 
subject to the suspension of the release into f ree circulation by the customs authorities upon 
requests of right holders but ex officio suspension by the customs authorities is applicable only 
counterfeit trademarks, geographical indication goods and pirated copyright goods.  Please 
indicate whether Viet Nam consider to change  the above mentioned protection at the border. 
The IP Law only provides for the authority of customs offices to ex officio apply 
administrative remedies in respect of imported goods regarded as pirated goods or 
trademark/geographical indication c ounterfeiting goods (Article 216) wh ich are not applicable to all 
types of imports and exports of suspected infringing  goods.  This provision is  consistent with the 
public administration principles, namely, the controlling measures of the State aim at ensuring the 
public interests and do not interfere with the civil conflicts falling within the jurisdiction of courts. 
The provision on customs suspension in the civil disputes is only applied at the request of the right holder to ensure that it does not create obstacles to the legitimate trade course (by binding the liability 
of the person who requests the suspension).  In add ition, it does not cause the overload of work for the 
customs offices.  Viet Nam supposes that the above  provision is reasonable and does not realize any 
reason to change that provision. 
34. (Japan question no. 10):  Please indicate whether the competent authority (in particular, 
the customs authority) is authorized to provide relevant IP right-holders with information on the identify of the relevant importer/exporter of suspended imports or exports, and/or the 
consignor/consignee and the details of the su spended goods.  Please explain the procedures 
necessary to be allowed to provide  such information in detail.  IP/C/W/514 
Page 20  
 
  Please specifically answer the following questio ns: (i) is the competent authority obliged 
to provide such information to the relevant ri ght holders or simply authorized to do so 
(with/without receiving a petition from right holders); (ii) on what timing the aforesaid information are to be provided to the relevant right holders, when imports or exports of the 
subject goods are suspended or wh en the competent authority has concluded that subject goods 
are infringing. 
Article 216 of the IP law provides that where th e right holder requested the customs office to 
inspect and supervise the infringing goods by detecting the suspended infringing goods, the customs office is obliged to inform the right holder at once.  Within three working days, if the right holder fails 
to request the customs suspension and the customs office fails to ha ndle the case by the administrative 
measures (ex officio), the customs office has the responsibility to complete the customs procedures 
for the related lots of goods. 
The IP Law and the Customs Law do not provide for the competence to notify the right holder 
of the IPR infringing lots of goods in the case of customs ex officio detecting the infringing goods. However, such provision is not mandatory but  discretionary under Article 57 of the TRIPS 
Agreement. 
According to Article 219 of the IP Law, the cu stoms offices have the obligation to notify the 
right holder of the suspected infringing goods wh en they detect the suspected infringing goods. 
However, this obligation is only applicable to th e case where the right holder  requested the customs 
offices to control and supervise the infringing goods at the customs borders. 
35. (Japan question no. 12):  Please indicate which interested party (i.e., the government, 
the relevant importer or exporter or the relevant right holder) pays and bears costs including 
storage cost of infringing goods during suspension  once the decision of infringement is made. 
Additionally, which interested party and bears the disposal (for example, destruction) cost of infringing goods. 
Article 218.3.b) of the IP Law provides that the person who requests for the suspension of 
customs procedures (the right holder) shall pay th e expenses for storing/preserving goods and other 
expenses under the customs law to the customs office s.  "Other expenses" ca n be understood to cover 
the expenses necessary to handle the infringing goods. 
36. (Japan question no. 15):  Please indicate whet her the domestic trafficking or imports of 
labels indicating trademarks that are identical or similar to registered trademarks deemed as 
infringing of such trademark or by any means pr ohibited by law, even before such labels are 
actually attached to any product (registered for the registered trademarks) for distribution.  If 
this is case, please further explain in what situat ion such action is deemed as infringement, for 
example, is it necessary to prove the party's inte ntion to attach such labels to goods designated 
for the registered trademark? Is such illegal tra ffic of labels subject to criminal penalties? 
Article 211.1.d) of IF law, instructed by Ar ticle 14 of the Decree No I 06/2006/NID-CP on 
sanctioning violations of the administrative regulati on on industrial property, specifies that imports of 
articles bearing a mark or a geographical indication that is identical or confusingly similar to a 
protected mark/geographical indication shall be re garded as IPR infringement and be applied by the 
administrative sanctions.  IP/C/W/514 
 Page 21 
 
 
  I. IPR  ENFORCEMENT :  CRIMINAL MEASURES  
37. (United States question no. 1):  Please cl arify how Viet Nam has implemented its 
obligations under Article 61 of the TRIPS Agreement to provide criminal procedures and penalties at least in cases of wilful tradem ark counterfeiting and copyright piracy on a 
commercial scale. 
38. (United States question no. 2):  We understand that Viet Nam recently adopted a 
criminal circular that is intended to enhance the application of Viet Nam's Criminal Code to intellectual property rights infringement.  How w ill this circular enhance Viet Nam's Criminal 
Code? Please provide a detailed explanation of how the circular expands protection for 
copyrights and the manner in which "commercial scale" activity is captured both in cases of 
trademark counterfeiting and copyright piracy.  Ha s Viet Nam notified the criminal circular to 
the WTO?  
The Criminal Code has been established and pr omulgated since 1999, and therefore, the IPR 
enforcement obligations under the TRIPS Agreement are not incorporated therein.  On the one hand, 
the provisions on the crimes of infringing copyrights pr escribed in the Criminal Code do not cover all 
the acts being regarded infringement of copyrights and related rights under the IP Law 2005.  On the 
other hand, the elements constituting the crime of IP R infringement do not refer to the factors "wilful" 
and "on the commercial scale", they rather refer to  the factor "causing serious consequences" to the 
different extents. 
In order to resolve the above shortcoming ai ming at the compliance with Article 61 of the 
TRIPS Agreement, the Joint-Circular 01/200 8/TTLT-TANDTC-VKSNDTC-BCA-BTP was issued on 
29 February 2008 to provide the guidelines to criminal prosecution of IPR infringing acts. 
Accordingly, the crimes of wilful trademark counterfeiting and piracy on a commercial scale are 
ensured to be prosecuted in consistence with  the requirement of the TRIPS Agreement.  
In addition, for the purpose of thoroughly overcoming the shortcomings existent in the 
Criminal Code, Viet Nam is drafting the Law on am endment and supplement of certain provisions of 
the Criminal Code, of which the IPR crime related provisions are proposed to be amended.  The draft 
of Law is scheduled to be submitted to the Nati onal Assembly in the Session of November 2008 and 
to be officially passed in the session of May 2009. 
The Joint Circular guides the examination of cr iminal liability in respect of IPR infringing 
acts to such an extent that they fall within the commitments and obligations of Viet Nam under 
Article 61 of the TRIPS Agreement.  
The elements of "wilful" and "on a commercial scal e" are incorporated into the Joint Circular 
to explain the IPR crime constituent elements prescribed  in the Criminal Code.  Accordingly, an act of 
wilful piracy and trademark counterfeiting on a commercial scale are rega rded as "having caused 
serious consequences", and therefore, shall be prosecuted under Article 131 or Article 171 of the 
Criminal Code.  The description of acts infringi ng upon copyrights and related rights, industrial 
property rights concerning trademark counterfeit goods is  referred to the IP Law to ensure the possible 
enforcement of IPRs under the criminal reme dies as required by the TRIPS Agreement. 
Viet Nam has submitted the Joint Circular to the WTO by the document No. IP/N/1/VNM/2 
dated 9 May 2008.  IP/C/W/514 
Page 22  
 
  39. (European Communities question no. 14):  Please explain whether the conditions 
specified in Article 1.1, 1.2 and 1.3 of the Inter-Circular No 01/2008/TTLT-TANDTC-
VKSNDTC-BCA-BTP (hereinafter Inter-Ci rcular) are cumulative or not. 
The conditions provided for in Articles 1 .1, 1. 2 and 1.3 of the Circular are not cumulative 
and shall be applied separately.  It means that an  infringing act meeting one  of the above conditions 
shall be prosecuted under Article 131 of the Crimin al Code if such act involves all other crime 
constituent elements. 
40. (European Communities question no. 15):  Both Article 1.2 and 1.3 of the Inter-
Circular- infringement of copyright and related rights "causing very serious consequences" as 
well as acts "causing extremely serious conseq uences" - remit to Article 131 Section 2 of the 
Criminal Code.  Since Article 131 Section 2 of th e Criminal Code provides only a single legal 
consequence, although applicable in three pa rticular cases, please explain the difference 
between Articles 1.2 and 1.3 of the Inter-Circular. 
Article 131.2.c of the Criminal Code sets out two circumstances relating to "causing very 
serious consequences" and "causing particularly ser ious consequences".  Articles 1.1 and 1.2 of the 
Circular explain how to determine those two circ umstances, respectively.  The difference between 
these two clauses is that the amount of physical da mages, violation goods value or gained profits 
determined in Article 1.3 are higher th an that determined in Article 1.2. 
Article 131.2 of the Criminal Code provides for a relatively wide penalty bracket (between six 
months and three years of imprisonment) applicable  to those acts regarded as "causing very serious 
consequences" and "causing particularly serious con sequences".  Therefore, Articles 1.2 and 1.3 of the 
Circular guide judges to determine the specific pe nalty corresponding to the level of consequences 
caused by the infringing act within the penalty brac ket prescribed by Article 131.2 of the Criminal 
Code.  Under this instruction, the judge may apply the highest level of the penalty bracket (three years 
imprisonment) to an act causing particularly serious consequences, but cannot apply that penalty to an 
act causing serious consequences. 
41. (European Communities question no. 16):  Please specify the meaning of "other 
elements that are enough to make up a crime" as mentioned in Articles 1.1, 1.2 and 1.3 of the Inter-Circular. 
It refers to the other elements that are not me ntioned in the Circular, but the judge must fully 
consider in examining a criminal offence under the criminal law. 
42. (European Communities question no. 17):  Plea se specify the meaning of "physical loss" 
as mentioned in Articles 1.1 b, 1.2 b, and 1.3 b,  of the Inter-Circular.  Please also explain the 
calculation of loss, especially when different co pyright holders are involved or foreign copyright 
holders do not have market access, and the burden of proof. 
The concept "physical loss" or "physical damages"  prescribed in Articles 1.1.b, 1.2.b, 1.3.b, 
of the Circular can be understood to comprise th e loss in property, decrease in income and profits, 
losses in business opportunities, reasonable expenses for prevention and restoration from such 
damages, reasonable attorney fees and other tangible losses (Article 204.1.a of the IP Law). 
The manners of calculation of damages are in structed in Articles 16-20 of the Decree 105. 
These manners are applicable to all cases, including  the case where different copyright holders are 
involved and the case where the foreign copyright holders do not have market access.  IP/C/W/514 
 Page 23 
 
 
  The burden of proof in a criminal case is specified  in Articles 1.1, 1.2 and 1.3 of the Circular 
which belongs to the organ conducting the crimin al prosecution in accordance with the Criminal 
Procedure Code.  The burden of proof to substantiate the claim of damages is stipulated in Article 203 
of the IP Law and Articles 23, 24, and 25 of the Decree 105. 
43. (European Communities question no. 18):  Plea se specify the basis on which the value of 
the infringing goods as mentioned in Articles 1.1 c, 1.2 c, and 1.3 c, of the Inter-Circular is 
calculated. 
The basis for determining the value of infringing goods is stipulated in Article 28 of the 
Decree 105/2006/ND-CP as follows: 
• Infringing goods referred may be a component (or a part or an accessory) of the goods 
containing the infringing element(s) that ca n be circulated in the market as an 
independent product. 
• Where it is impossible to detach the compone nt containing the infringing element(s) 
from an entire product to be an independent pr oduct as specified in paragraph (a) of this 
clause, the infringing goods shall be defined as the entire product containing the infringing element(s). 
 
• The infringing goods value shall be determined by  the authority in charge of dealing with 
the infringement at the time the act of infri ngement takes place on the basis of taking the 
following considerations one after another: 
 
(i) Listed prices of the infringing goods; 
(ii) Actual prices of the infringing goods; 
(iii) Market price of the infringing goods (if not yet sold); 
(iv) Market prices of the equivalent goo ds which are of the same technical 
standards and the same quality. 
The infringing goods value is calculated on the basis of the component (or the part or the 
accessory) of the product that contains the infringing  element(s) or on the basis of the value of the 
entire product containing infringing element(s) as mentioned above. 
44.  (European Communities question no. 19):  Pl ease specify the "other elements that are 
enough for making up a crime under other articles of the Criminal Code" as mentioned in Article 1.4 of the Inter-Circular. 
Article 131 of the Criminal Code stipulates onl y some acts infringing upon copyrights, mainly 
acts infringing upon moral rights of the author, therefore, it cannot deal with all acts of infringement 
upon copyrights and related rights as described in the IP Law.  
Article 1.4 of the Circular provides that, an act infringing upon copyrights or related rights 
does not constitute a crime specified in Article 131 of the Criminal Code, but constitutes a crime 
prescribed in another article of the Criminal Code th at shall be examined for criminal liability in term 
of the crime prescribed in the relevant article of the Criminal Code.  For example, the provisions on 
the crimes of infringement upon prope rty ownership:  Article 142 on illega lly using property of others 
(those who, for his own benefits, illegally uses a nother person's property valued at VND 50 million or 
higher, causing serious consequences shall be subj ect to a fine with the amount from VND 5 million IP/C/W/514 
Page 24  
 
  to VND 50 million, non-custodial reform for up to two years or a prison term of between three months 
and two years) can apply to prosecute an act of ex ploitation of copyrighted work or exploitation of a 
related right object: 
• The elements "wilful" and "on a commercial scale"  are of relevance due to "for their own 
benefits". 
 
• Property valued at VND 50 million or higher is  of relevance due to the presumed damage 
of the owner can be calculated on the basis of  a royalty which is regarded as falling into 
the spectrum of the "on a commercial scale" benchmark. 
 To this point, the Circular overcomes the defici ency of Article 131 of the Criminal Code and 
meets the requirements of the TRIPS Agreement to en sure the criminal prosecution of all wilful acts 
of infringing upon copyright and related rights on a commercial scale. 
45. (European Communities question no. 20):  Please specify the meaning "on a commercial 
scale" as mentioned in Articles 1.1 a, 1.2 a, and 1. 3 a, of the Inter-Circular.  Please also provide 
some examples that would fulfil this requirement. 
The Circular does not interpret the concept "on commercial scale" but allows judges to decide 
this issue.  It is a fact that there is no official definition of this concept in the statutory provisions of 
other countries in the world. 
Besides the element "on a commercial scale", the Circular sets out certain criteria to quantify 
the element "causing serious consequences" that can be applied instead of the element "on a 
commercial scale". 
46. (European Communities question no. 21):  We assume that there will be an assumption 
based on the copyright notice and no additional n eed for the prosecution to show intent for the 
applicability of criminal penalties.  Please clarify. 
Depending on particular circumstances, an  indication or notice of copyright on the 
copyrighted work can be regarded  as being sufficient to constitute "wilful" element or not.  For 
example, the sign © is likely to be regarded as not popular to everybody.  In case of a clear  indication 
with the popular language may also be insufficient to constitute the "wilful" element if the infringer 
does not recognize that indication. 
47. (European Communities question no. 22):  Bo th Articles 2.2 and 2.3 of the Inter-
Circular-acts of infringement of industrial prop erty rights "causing very serious consequences" 
as well as acts "causing extremely serious con sequences" - remit to Article 171 Section 2 of the 
Criminal Code. Since Article 171 Section 2 of the Criminal Code provides only a single legal 
consequence, although applicable in three pa rticular cases, please explain the difference 
between Article 2.2 and 2.3 of the Inter-Circular. 
Provisions in Article 2.3 of the Circular interpreting the act of "causing extremely serious 
consequences" have the same structure with Article 2.2 interpreting the act of "causing very serious 
consequences" but the difference between the two po ints lies in the level of consequences caused by 
infringing acts (the level of profit obtained by infringers, the level of physical damage for the right 
holders, the value of infringing goods). 
Articles 171.2 and 171.3 of the Criminal Code pr ovide a broad penalty scale applicable to the 
acts of causing "very serious and extremely serious" c onsequences.  The Circular elaborates criteria to 
define when an infringing act is regarded as causing "very serious consequences" and when an  IP/C/W/514 
 Page 25 
 
 
  infringing act is regarded as causing "extremely ser ious consequences".  Based on that, the judges can 
determine the specific penalties within the allowe d penalty scale corresponding to the seriousness of 
the infringing act. 
48. (European Communities question no. 23):  Please explain in which circumstances 
Articles 131 Section 3 and 171 Section 3 of the Criminal Code apply. 
Article 131.3 and Article 171.3 of the Criminal Code provide for supplement penalties, that 
is, fine of from VND 10 million to VND 100 milli on, prohibition of practices or doing certain 
businesses from one year to 5 years which can be app lied in combination with main penalties if judges 
find it necessary to properly deter offenders corr esponding to the characteristics of the crimes. 
49.  (European Communities question no. 24):  Pl ease assess the deterrent effect mentioned 
in Article 61 of the TRIPS Agreement with regar d to the Inter-Circular and Articles 131 and 
171 of the Criminal Code.  In particular, please provide an explanation for the fact that the fines foreseen in Article 131 as well as in Article 171 of  the Criminal Code are much lower than the 
thresholds for the applicability of criminal pena lties foreseen in the In ter-Circular.  Please 
specify the applicable penalties. 
All penalties in general and fines in particular  with regard to the copyright infringement 
crimes and industrial property right infringement crimes provided for in Articles 131 and 171 of the 
Criminal Code are designed in equivalence with other penalties for other crimes with the same 
seriousness throughout the whole Code, therefore, th ey have the similar deterrent effect like those 
applicable to other crimes.  Therefore, it can be said that the provisions on penalties are consistent 
with Article 61 of the TRIPS Agreement. 
The Circular only guides the application of Ar ticles 131 and 171 of the Criminal Code and 
does not provide for the amount of fine and othe r penalties.  Judges should base on Articles 131 and 
171 of the Criminal Code to determine penalties applied to offenders. 
50. (Japan question no. 13):  Please indicate whether wilful trademarks infringement using 
a trademarks similar to as well as identical to or  indistinguishable in its essential aspects from a 
registered trademark on a commercial scale subject to criminal penalties. 
Article 171 of the Criminal Code provides for the criminal prosecution with regard to the acts 
of misappropriation and illegal use of trademark be ing protected in Viet Nam.  The Circular only 
guides the criminal prosecution with respect of the wilful acts of infringement upon the counterfeit 
trademark in light of Article 61 of the TRIPS Ag reement.  The scheduled amending Criminal Code 
will make clear the question of whether wilful infringement using a similar trademark is subject to 
criminal penalties. 
J. P
OLICIES /ACTION PLANS FOR ENHANCING IPR  PROTECTION /ENFORCEMENT  
51.  (European Communities question no. 29):  Pira cy in the sector of optical discs is an 
issue of great concern.  Please inform us abou t the steps which the Vietnamese Authorities are 
planning to take in order to strengthen contro ls and target actions against organized piracy 
activities, especially with regard to optical disc plants, pirate warehouse and retail shops. 
 Please explain whether there are any plans to enact legislation targeted at optical disc 
piracy, including registration and licensing requirements.  IP/C/W/514 
Page 26  
 
  In 2007, all the IP related agencies continued the implementation of the National Action Plan 
168/CTHD/VHTT-KHCN-NN&PTNT-TC-TM-CA dated 19 January 2006 on anti-IPR infringement 
for the period of 2006-2010 (the Action Plan 168). 
In international aspect, Viet Na m is in cooperation with IFPI and STAR project to organize a 
legal and enforcement seminar on management of optical discs business in Dalat (10-11 August 2007) 
with the attendance of all the rela ted agencies (ministries, author right management organizations, and 
others visual disc producers). 
A legal drafting team was organized by the Mi nistry of Cultural, Sport and Tourism to 
prepare a government decree on management of opti cal disc imports, exports and circulation as well 
as management of using optical discs for fixa tion and copying of works, performance, and 
broadcasting business. 
With the support from the STAR-Viet Nam project and IFPI, the draft of the decree is in the 
finalization stage. 
52. (European Communities question no. 30):  It appears that foreign broadcast TV signal 
remains a serious problem in Viet Nam in terms of intellectual property rights and causes 
significant damage to the legitimate industry.  IP infringements here include piracy of cable and 
satellite broadcasting signals from neighbouring countries as well as unlicensed play-out of DVDs which might themselves be pirated. 
Please explain how the Vietnamese Authorities plan to implement the WTO 
commitment to adopt laws ensuring that only li censed content will be broadcasted and the right 
holders will be remunerated in acco rdance with the Berne Convention. 
Concerning the foreign satellite signal broadcasting, inspectors from the Ministry of 
Information and Communication settled a case on SEAGAME football broadcasting.  The VTC 
Television reached an agreement with other providers to broadcast licensed programmes. 
An international conference on 'Pay TV" was co-organized in HoChiM inh City on 10 July 
2007 by coordination with the CASSABA, CNN, 1INDETO, STAR, TVS, MOND etc.  Nearly 100 
attendants from national and regi onal televisions and enforcement agencies participated in the 
seminar. 
Implementing the commitment of broadcasting fully-licensed programmes, the national and 
regional televisions carried out licensed broadcas ting negotiations for using American Idols by 
HoChiMinh City Television, for Germany, France,  and Italy football leagues by Viet Nam cable 
television VCTV and for the recent Euro  2008, a broadcasting license by VTV. 
K. O
THERS  
53. (Japan question no. 16):  Please provide statisti cal information related to civil copyright, 
trademark, geographical indication, industrial de sign, patent, integrated circuit layout-design, 
and trade secret enforcement for 2007, including the number of cases filed, injunctions issued; 
infringing products seized; infringing equipmen t seized; cases resolved (including settlement); 
and the amount of damages awarded. 
54. (Japan question no. 17):  Please provide st atistical information related to criminal 
enforcement in the area of copyright piracy and trademark infringement for 2007, including the number of raids, prosecutions, convictions and th e amount of fines and/or jail terms (including 
whether the fines were paid and whether the ja il term was actually served or was suspended)  IP/C/W/514 
 Page 27 
 
 
  and any other information establishing that the criminal system operates effectively to deter 
copyright piracy and trademark counterfeiting. 
55. (Japan question no. 18):  Please provide, if any, statistical information related to 
criminal or administrative enforcement in the area of copyright, trademark, geographical 
indication, industrial design, patent, integrated circuit layout-design, and trade secret 
enforcement infringement for 2007. 
56. (European Communities question no. 8):  Plea se provide statistical data on both the 
confiscation for distribution or use for non-comme rcial issues as well as on the Confiscation for 
destruction, as foreseen in Article 29 of the Decree 105/2006 of 22 September, 2006, Detailing 
and Guiding the Implementation of Number of Articles of the Law in Intellectual Property on 
Protection of Intellectual Property Rights and on State Management of Intellectual Property. 
57. (European Communities question no. 10):  Pl ease indicate the Authorities responsible 
for the application of the Compelled Destruction foreseen in Article 31 of the Decree 105/2006 of 
22 September, 2006.  Please provide relevan t data on Compelled Destruction actions 
undertaken under the aforementioned Decree. 
58. (European Communities question no. 26):  Plea se provide statistical information on the 
number of petitions submitted to the General Department of Customs under Article 36 of the Decree No. 105/2006 of 22 September, 2006.  Please include the number accepted petitions and the number of refused petitions. 
59. (European Communities question no. 27):  Please provide data on how many customs 
clearances have been ceased ex-officio accord ing to Article 37 of the Decree No. 105/2006, 
classified by counterfeit trademark, geographi cal indication and pirated copyright goods if 
available. 
60. (European Communities question no. 7):  Please provide statistical date on the ex officio 
actions against intellectual property rights violations undertaken by the different administrative bodies engaged in the enforcement, classified by administration. 
The statistical data on the practices of IPR enfo rcement have not been prepared to provide for 
the review of the national legislation in this section. 
61. (European Communities question no. 28):  Ma rket access barriers, especially those 
related to "cultural products" require further clarification since they have an effect on the competitiveness of legitimate, duly licensed products. 
Please explain how the engaged administration is planning to address the problem of 
market access barriers which keep foreign firms o ffering cultural products from entering the 
Vietnamese market and thus producing and distributing these products legally. 
The matters relating to the market access barrier s, including those relating to cultural products 
are subject to the regulation of GATS but not TRIPS.  Therefore, Viet Nam will discuss on this topic in the appropriate framework. 
 
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