WORLD TRADE  
ORGANIZATION  IP/C/W/514/Add.1 
23 October 2008 
 
 (08-5138) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
  
REVIEW OF LEGISLATION 
  
Responses from Viet Nam to the questions posed by Canada and additional questions
 
posed by the United States  
 
Addendum  
 
 
 By means of a communication from the Delegation of Viet Nam, dated 16 October, 2008, the Secretariat has received the following responses to  questions posed by Canada and additional 
questions posed by the United States, circulated in documents IP/C/W/512 and IP/C/W/508/Add.1, respectively.  
 
_______________ 
 
 
TABLE OF CONTENTS 
 
 
A.
 GENERAL PROVISIONS ................................................................................................................2  
B. GEOGRAPHICAL INDICATIONS ....................................................................................................2  
C. COPYRIGHT /RELATED RIGHTS ....................................................................................................2  
D. PATENTS ............................................................................................................................... .......3  
E. PROTECTION OF UNDISCLOSED INFORMATION ...........................................................................5  
F. CIVIL PROCEDURES AND REMEDIES ...........................................................................................7  
G. ADMINISTRATIVE PROCEDURES AND REMEDIES ........................................................................7  
H. BORDER MEASURES ..................................................................................................................13  
I. CRIMINAL PROCEDURES ...........................................................................................................13  
J. POLICIES /ACTION PLANS FOR ENHANCEMENT OF RIGHTS 
PROTECTION /ENFORCEMENT ....................................................................................................16  
K. OTHERS ............................................................................................................................... ......16  IP/C/W/514/Add.1 
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  A. G
ENERAL PROVISIONS  
1. (Canada question no. 8):  At Chapter XVI, concerning rights to self-protection under 
Article 198.1(b), (c), and (d), Canada would be grateful for clarification regarding whether the application of measures available to right holders dependent on an official determination of infringement from a competent authority/agency in Viet Nam. 
 Rights to self-protection under Article 198.1(b), (c) and (d) are measures that right holders 
should actively apply on the basis of evidence of  infringement collected by themselves, which 
possibly includes, but does not require
, a written assessment conclusion of infringment acts from 
intellectual property assessing organizations, intell ectual property assessors, or professional opinions 
on infringement acts from state management agencies of intellectual property rights (Copyright 
Office, National Office of Intellectual Property, Depa rtments of Science and Technology, etc).  Apart 
from the enforcement agencies described in Article 198.1(c) and (d), no agencies have authority to 
issue official conclusions on infringement acts. 
B. GEOGRAPHICAL INDICATIONS  
 No questions. 
 
C. COPYRIGHT /RELATED RIGHTS  
2. (Canada question no. 1):  Article 23.2 states that "Organizations and individuals using 
folklore and folk art works of folklore must refer to their sources and preserve their true 
values".  Canada would be grateful if Viet Nam could provide additional information on what is required of organizations and individuals to comply with this provision. 
 The provision of Article 23.2 of the IP Law is detailed by Article 20 (use of folkolore and folk 
art works) of the Decree 100/2006/ND-CP dated 21  September 2006 detailing and providing guidlines 
for implementation of a number of articles of Civil Code and IP Law with respect to copyright and related rights.  Accordingly, the users of folklore  and folk art works (i.e. who carry out any activities 
of research, collection or introduction of the true valu e of certain folklore and folk art works) shall 
have obligation to indicate the origin of the re lated folklore and folk art works by citing the 
geographical location of the indigenous community where such folklore and folk art works were 
created. 
3. (Canada question no. 2):  Article 27 states that the "moral rights provided for in Clauses 
1, 2 and 4, Article 19 of this law shall be protec ted for an indefinite term".  According to the 
Berne Convention, the moral rights granted to th e author should be protected at least until the 
expiry of the economic rights (Article 6 bis).  Canada would be grateful for additional 
information on the justification for an  indefinite term for moral rights. 
 "Moral rights provided for in Clauses 1, 2 and 4 of Article 19 of this law shall be protected 
for an indefinite term"  is meant that, pursuant to the IP Law,  there is no conception of expiry with 
respect to the term of protection given to moral rights (everlasting protection).  
 Such provision is in compliance with Article 6 bis of the Berne Convention which provides for 
the protection term of moral rights at least lasting until the expiry of the economic rights.  IP/C/W/514/Add.1 
 Page 3 
 
 
  4. (Canada question no. 3):  Article 28 defines "Acts of infringing upon copyright" to 
include "appropriating copyright to literary, arti stic or scientific works" and "impersonating 
authors".  We would be grateful if Viet Nam could clarify these two prohibitions. 
 Appropriating copyright stipulated in Article 28.1 of the IP Law is understood as acts of 
illegally making the entire or part of other people's copyrights into one's own, for example registering 
works of other people into one's own name as the owner of the work. 
 Impersonating authors stipulated in Article 28.2 of the IP Law is understood as acts of 
attaching one's name as the author on works wh ich were created by other person(s), for example 
signing real name or pseudonyms in the name of  the author on a published work which was not 
created by himself. 
D. PATENTS  
5. (Canada question no. 4):   At Article 58 a distinction is made between an "invention 
patent" and a "utility solution patent".  Cana da would appreciate if Viet Nam could further 
elaborate on what is a "utility solution patent", and why such a distinction was drawn.  Moreover, 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 grateful for Viet Nam's views on the co nsistency of Articles 58.2 and 93.3 of the Law 
on Intellectual Property with Article 27.1 of the TRIPS Agreement. 
 Objects of "Invention Patent" or "Utility Solutio n Patent" are technological solutions in the 
form of products or processes. 
 An invention will be granted with an Inventi on Patent if it is novel, involving an inventive 
step and susceptible to industrial application (Ar ticle 58.1 of the IP law).  This provision is in 
compliance with the requirement of Article 27.1 of the TRIPS Agreement. 
 An invention which is not a common knowledge will be granted with a Utility Solution Patent 
if it is novel and susceptible to industrial a pplication (Article 58.2 of the IP law).  
 According to the provisions mentioned above, conditions for the grant of Utility Solution 
Patent are different from those for the grant of In vention Patent at the criterion of inventive step, 
particularly an invention to be granted with an Utility Solution Patent does not need to satisfy the 
condition of involving an inventive step, just need s to satisfy the condition of not being a common 
knowledge. 
 Invention Patent and Utility Solution Patent both entitle their owners to the same contents of 
rights, just different at the terms of protection which are 20 years or 10 years (as stipulated in clauses 
2 and 3 of Article 93 of the IP Law). 
 It could be understood that Utility Solution Pate nt is the same as "Petty Patent/Utility Model 
Patent" in the laws of other countries in the world. 
 In terms of protection object, the provisions on Utility Solution Patent system have satisfied 
the requirements for protection of utility model under Paris Convention, as referred to in Article 27.1 
of the TRIPS Agreement. 
 According to the analysis above, the protection mechanism for "invention" to be granted with 
Utility Solution Patent under the provisions of Articl es 58.2 and 93.3 of the IP Law does not fall in the 
scope of regulation of Article 27.1 of the TRIPS Agreement. IP/C/W/514/Add.1 
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  6. (Canada question no. 5):  Article 125.2 does not allow "owners of intellectual property 
objects" to prevent others to use inventions "for non-commercial purposes, or for purposes of 
evaluation, analysis, research, teaching, testing, trial production or information…".  Canada 
would be grateful if Viet Nam could clarify wh ether there are any limitations to these exceptions 
to patentees' rights and how this provisi on has been interpreted by the courts. 
 Apart from those exceptions listed explicitly in  this Article, there is no other exception. 
Therefore, it could be said that exceptions as stipulated are limited. 
 The courts have not yet settled any case rela ting to application of the above-mentioned 
provisions on exceptions so far. 
7. (Canada question no. 7):  At Article 136, owners of inventions are obliged to 
manufacture protected products or apply protected processes to satisfy the requirements of 
national defence, security, disease prevention an d treatment and nutrition for the people or to 
meet other social urgent needs;  and that if this is not done inventions may be licensed in accordance to Articles 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 property reg arding industrial property allows the Ministry 
of Science and Technology to license an invent ion where the patentee fails "to perform the 
obligation to manufacture protected products or apply protected processes to satisfy needs of 
national defence, security, diseases 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 information on  what specific grounds compulsory licenses may 
be granted. 
 Viet Nam understands that national defence, security, disease prevention and treatment and 
nutrition for the people or other urgent needs are satisfied if products or services which apply the 
invention are supplied with an adequate quantity and reasonable price so that people under demand 
can approach. 
 Provision on obligation to use invention in Article 136.1 is detailed and guided for the 
implementation in Article 23 of Decree 103/20 06/ND-CP of September 22, 2006 ("Decree 
103/2006/ND-CP").  
 Further to this, Article 23.2 of the Decree 103/2006/ND-CP provides that "When needs of 
national defence, security, disease prevention and treatment and nutrition for the people or other 
urgent social needs are satisfied by imported pr oducts or products manufactured by licensees of 
inventions under licensing contracts , holders of the exclusive right to use inventions shall not have to 
perform the obligation to manufacture  protected products or apply protected processes  mentioned in 
Clause 1 of this Article".  
 Bases for compulsory licensing of inventions stipulated in Article 145.1 of the IP law include: 
- The use of such invention is for public and non-commercial purposes or in the service 
of national defence, security, disease preven tion and treatment and nutrition for people 
or other urgent needs of the society; 
- The patentee or the holder of exclusive right fails to fulfil the obligations to use such 
invention (manufacture protected products or apply protected processes) to meet 
national defence, security, disease prevention and treatment and nutrition for people or 
other urgent needs of the society;  IP/C/W/514/Add.1 
 Page 5 
 
 
  - A person who wishes to use the invention fails to reach an agreement with the holder of 
exclusive right to use such invention on th e entry of an invention licence contract in 
spite of his/her efforts made within a reasonable time for negotiation on satisfactory commercial price and conditions; 
- The patentee or the holder of exclusive right to use such invention is considered having 
performed anti-competition practices banned by competition law. 
E. P
ROTECTION OF UNDISCLOSED INFORMATION  
8. (Canada question no. 6):  At Article 128 on obligation to keep secret test data, "the 
competent licensing agency shall be obliged to ap ply necessary measures so that such data are 
neither used for unhealthy commercial purposes nor disclosed…".  Canada would appreciate 
further clarifications on the meaning of "unhealthy commercial purposes". 
 "Use for unhealthy commercial purposes" means "u nfair commercial use" as stipulated in 
Article 39.3 of the TRIPS Agreement.  The differe nce in expression is just due to translation. 
Regulation on Data Security of Drug Registration Records  
9. (Canada question no. 18):  In regard to the definition in Article 2(6) and in regard to the 
subsequent reference in Article 4(1), we would be  grateful for additional information on what 
criteria are applicable to "business secrets" an d whether they include requirements that the 
data have commercial value. 
 Provision in Article 4.1 of the Regulation on data  security of drug registration records is in 
compliance with that in Article 128.1 of the IP  Law in terms of cond itions and procedures for 
protection of test data.  Test data can be protect ed when it is a business secret which is obtained from 
significant effort/considerable effort and the applican t is required to keep the secrecy of information 
(contained in the data).  Therefore, in order to be protected, test data must satisfy conditions for 
business secrets in accordance with Article 84 of the IP Law, particularly: 
(i) Being neither common knowledge nor easily obtained; 
(ii) Being capable, when being used in business activities, of rendering advantages to its 
holder over those who do not hold or use it; 
(iii) Being kept secret by its owner with necessary measures so that it shall neither be 
disclosed nor easily accessible. 
 The condition (ii) as mentioned above is equiva lent to "having commercial value because it is 
secret" as provided for in Artilce 39.2 (b) of the TRIPS Agreement. 
10. (Canada question no. 19):  In Article 4(2), data must be "results of investment 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 differs from 
"considerable effort" as referred to in Article 39(3) of the TRIPS Agreement. 
 "Significant effort" means "considerable effort " as stipulated in Article 39.3 of the TRIPS 
Agreement.  The difference in expression is just due to translation.  In essence, "significant effort" or 
"considerable effort" may be unde rstood as financial, intellectual, technological investment for 
obtaining such data by the owner of test data or other data. IP/C/W/514/Add.1 
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  11. (Canada question no. 20):  Canada would be grateful if Viet Nam could provide 
additional information regarding how violations are handled under Article 12 and what administrative and penal sancti ons are available under the law. 
 Decree 120/2005/ND-CP of 30 September, 2005 providing administrative violation handling 
in competition: 
 "Article 3:1 Acts of infr inging upon business secrets 
 1. ...  d) Accessing or acquiring information pertaining to business secrets of other persons when 
they make business procedures in a ccordance with laws,  apply for licenses for circulating products 
or by taking acts against secret -keeping measures applied by comp etent agencies or using such 
information for purposes of business, application for licenses for trading in or circulating products.  
 2.  A fine of between VND 10.000.000 and VND 20.000.000 shall be imposed on one of acts of 
infringing upon business secrets stipulated in clause 1 of this Article in one of the following cases: 
 a)  using business secret for manufacturing and circulating goods, providing services in more 
than two provinces, cities under central Government; 
 b)  Disclosing, providing business secre ts competitors of owners of business secrets. 
 3.  In addition to  the fine stipulated in cl ause 1 of this Article, business-infringing enterprises 
shall also be subject to confiscation of exhibits, means used for acts of infringement including 
confiscation of the entire benefit gained as a result of acts of infringing." 
 Decree 106/2006/ND-CP of 22 September, 2006 of  the Government providing for imposing 
violation of the obliation to keep secret test data: 
 "Article 10: Violation of the obligation to keep secret test data when filing applications for 
business licenses or permits for circulation of  pharmaceuticals or agro-chemical products 
 A fine of between VND 7,000,000 and VND 10,000, 000 shall be imposed on individuals or 
organizations that commit violation of the regulatio ns on confidentiality of data on test results as 
required under the procedures of application for business licenses or permits for circulation of 
pharmaceuticals or agro-chemical products.". 
 .". According to the IP Law, trade secret (includi ng test data) is considered as an object of 
industrial property;  thus if an act of infringing industrial property right to trade secret involves 
sufficient elements to constitute a crime, then the act may be subject to criminal penalties as provided 
for in Article 171 of the Criminal Code: 
 "Article 171.  Infringing upon industrial property rights  
 1.  Those who, for business purposes, appr opriate and/or illegally use inventions, utility 
solutions, industrial designs, trade marks, appellati on, goods origins or other industrial property 
objects, which are protected in Vietnam, thus caus ing serious consequences or who have already been 
administratively sanctioned for such acts or already  been sentenced for such  offenses, not yet entitled 
to criminal record remission but continue to comm it them, shall be subject to a fine of between
 twenty 
million dong and two hundred milli on dong or to non-custodial reform for up to two years.   IP/C/W/514/Add.1 
 Page 7 
 
 
   2.  Committing the crimes in one of the fo llowing circumstances, the offenders shall be 
sentenced to between six months and three years of imprisonment:  
(a) In an organized manner;  
(b) Committing the crime more than once;   
(c) Causing very serious or particularly serious consequences  
 3.  The offenders may also be subject to a fine of between ten million dong and one hundred 
million dong, to a ban from holding certain post s, practicing certain occupations or doing certain 
jobs for one to five years." 
F. CIVIL PROCEDURES AND REMEDIES  
 No questions. 
 
G. ADMINISTRATIVE PROCEDURES AND REMEDIES  
Decree 106/2006/ND-CP of September 22, 2006 of the Government providing for sanctioning of 
administrative violations in the domain of industiral property  
12. (Canada question no. 10):  At Article 8 (Vio lation of regulations on industrial property 
assessment) there is a reference to "industrial property assessment".  Canada would be grateful 
if for additional information regarding:  (1) What an assessment would entail and who would 
perform it?;  (2) What role does the assesso r play in the enforcement of administrative 
penalties?;  and (3) Does the a ssessor have the exclusive responsibility and/or jurisdiction in 
administrative procedures or prosecutions involvi ng the infringement of intellectual property 
rights in Viet Nam? 
 (1)  Industrial property assessment is part of intellectual property assessment and its contents 
are defined by Article 39 of Decree 105/2006/ND-CP as follows: 
 "Article 39.   Contents and areas of intellectual property assessment 
 1.  Intellectual property assessmen t covers the following contents:  
(a) Determination of the legal status and prot ectability of the intellectual property right 
subject matter; the scope of intellectual property right protection;  
(b) Determination of evidence for calcu lation of the level of damage;  
(c) Determination of infringing elements, infringing products/services, the element 
serving as a basis for determination of the value of the protected intellectual property right subject matter, the infringing objects; 
(d) Determination of the ability to prove th e intellectual property right holder status, 
infringement, infringing goods or the ability to prove to the contrary of documents 
and evidence used in the dispute or infringement; 
(e) Other circumstances of the case that need to be clarified.". IP/C/W/514/Add.1 
Page 8  
 
   The professional people who are allowed to  conduct the industrial property assessment 
include the Industrial Property Assessors who are granted the Industrial Property Assessor's Cards 
(industrial property assessment practicing license) a nd industrial property assessment organizations 
who meet conditions for conducting assessment service in accordance with Clauses 2 and 3, Part I of 
Circular 01/2008/TT-BKHCN of 25 February, 2008 of the Ministry of Science and Technology 
guiding the procedures for issuance and revocation of Assessor's Card and Certificate of professional 
eligibility for working as an industrial property assessment organization, as follows: 
 "2.  Conditions for grant of I ndustrial Property Assessor's Cards 
 Conditions for grant of Industrial Prop erty Assessor's Cards (h ereafter referred as 
"Assessor's Card") provided for in Article 44.3 of Decree 105/2006/ND-CP are understood as 
follows: 
(a) Condition of having a university degree in  the area of assessment means having 
university degree or master degree in the fie ld of engineering; science of physics, 
chemistry, biology for assessment of  inventions and layout-designs; having a 
university degree or a master degree in  the other areas of assessment. 
(b) Condition of possessing good moral qualities me ans having not been administratively 
handled  due to violation of industrial propert y regulations  or acts of  violation of 
professional morality, and not being subject to criminal prosecution or sentenced without criminal record remission. 
(c) Condition of having professional  knowledge about industr ial property means being 
granted Certificate of professional eligib ility for working as industrial property 
assessors as stipulated in point c, Part II of the Circular.". 
 (2)  The role of Industrial property assessors , industrial property assessment organizations 
is to provide objective and independent assessment  conclusions on issues needed to be clarified 
relating to professional knowledge about industrial property at the request of administrative 
enforcement agencies, or at the request of the dispute parties. 
 (3)  Industrial property assessors have no exclusive responsibility and/or jurisdiction  in 
either administrative or criminal proceedings appl icable to IPR infringement cases in Viet Nam.  An 
assessment conclusion is considered as a source of evidence that may be used in dealing with the 
infringement case.  The enforcement agencies have  their own discretion to decide whether an IP 
assessment request is needed or not and whethe r an assessment conclusion is used or not. 
13. (Canada question no. 11):  At Article 14 (On production, transportation, import of, or 
trading in, objects bearing infringing marks or geographical indications) identifies a scale of 
fines, imposed on individuals or organizations, fo r cases of infringement based on the value of 
infringing goods.  How is the value of infringing goods determined or more specifically, on what basis is it calculated? 
 According to Article 28.2 of Decree 105/2006/ ND-CP, the value of infringing goods shall be 
determined by the infringement-handling agency which is defined at the moment of occurrence of the 
infringing act and relied on one of the following facts, on the basis of the priority order: 
- The listed price of the infringing goods;  
- The actual selling price of the infringing goods;   IP/C/W/514/Add.1 
 Page 9 
 
 
  - The cost of the infringing goods (if not yet delivered for sale); 
- The market price of the similar goods with the equivalent technical specifications and 
quality. 
14. (Canada question no. 12):  Article 14 also i ndicates that fines, or administrative 
penalties, are applicable to individuals and organizations .  Articles 156 (Manufacturing and/or 
trading in fake goods) and 171 (Infringing upo n 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 administrative recourse automatically invoke criminal proceedings against the organization by the State? 
 Article 199 of the IP Law stipulates general remedies against acts of infringement of 
intellectual property rights in accordance with th e existing laws and regul ations, consisting of 
administrative, civil and criminal remedies.  The a pplication of particular remedies in handling of acts 
of infringement must comply with provisions on conditions, procedures of related laws and 
regulations (such as the Ordinance on handling of administrative violations and the Decrees and 
Circulars guiding the implementation of the Ordinance; the Civil Code, the Civil Proceeding Code 
and the Decrees and Circulars guiding their implementation;  the Criminal Code, the Criminal Proceeding Code and the Circulars guiding their implementation). 
 According to the Criminal Code 1999 (Article 2 - Bases of criminal liabilities, Article 8 – 
Definition of Crime), only natural people (individuals ) can be subject to criminal liabilities for their 
acts constituting crimes.  When an individual commits an act of crime in the name of an organization, 
he himself is subject to criminal liabilities. 
 The provision on the circumstance threshold of crime "in an organized manner" stipulated in 
Article 156.2(a) of the Criminal Code does not refer to the criminal liability against a crime 
committed by an organization, but rather refers to the criminal liability against the person (s) 
(individual or individuals) who committed the crime in an organized manner , i.e. there is a close 
collusion among the persons jointly committed the cr ime.  Committing the crime in an organized 
manner is considered as an aggravating circumstance  and shall be applied with the higher penalty as 
stipulated in this Article. 
15. (Canada question no. 13):  At Article 15.6 (Production, import, transportation 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 
indications, raw materials, materials and means used mainly for production of, or trading in, 
those goods, which, however, must not affect the exercise of the rights by industrial property 
rights holders, for violations specified in Clauses 1, 2, 3, and 4 of this Article."  Could Viet Nam please provide examples of the distribution or  putting to use for non-commercial purposes of 
goods bearing counterfeit marks or geographical indi cations, that does not affect the exercise of 
the rights by industrial property right holders? 
 The detailed instructions on the application of  the forcible distribution or putting to use for 
non-commercial purposes  of goods  are provided by Article 30 of Decree 105/2006/ND-CP as follows: 
 "1.  The compelled distribution or use of in tellectual property counterfeit goods or infringing 
goods for non-commercial purposes must satisfy the following conditions: 
(a) The goods are useable; IP/C/W/514/Add.1 
Page 10  
 
  (b) Infringing elements have been removed from the goods; 
(c) Such distribution or use is for non-co mmercial purposes and does not unreasonably 
affect the normal exercise of the rights of the intellectual property right holder, where 
the purposes of humanity, charity and pub lic interest shall be prioritized;  
(d) Persons to whom goods are distributed or delivered for use are not potential 
customers of the intellectual property right holder.  
 2.  The provisions of Clause 1 of this Article  shall also apply to raw materials, materials and 
means for producing and trading intellectual prop erty counterfeit goods or infringing goods." 
 A suggestive example for the application of this  measure is defined in Point 5.2 of Circular 
02/2008/TTLT-TANDTC-VKSNDTC-BVHTT&DL-BKH&C N-BTP dated 3 April 2008 of People's 
Supreme Court as "the distribution for orphan home or for other humanitarian purposes". 
16. (Canada question no. 14):  With respect to  Article 22 (Handling of written request 
involving disputes or filed with competent agenci es) Canada would be grateful for additional 
information on which agencies are incompetent with respect to dispute filings. 
 According to Article 22.1 of Decree No 106/2006/ND-CP of 22 September, 2006, when a 
written request for infringement handling involves an  object of industrial property rights which are 
under dispute over status of the right holder, the protectability or the scope of protection given to that object (i.e. the dispute concerning the third parties ov er the validity of the related Protection Title), the 
request-receiving agency shall not proceed further the infringement handling procedures.  Otherwise, 
that agency must provide instructions to the requester , and the related third parties, if any, to exercise 
the dispute settlement procedures at the competen t organization before going futher into the 
infringement handling procedures.  For settling the di sputes over the status of the right holder (e.g. 
right to register, right to be named in the Protecti on Title), the competent authority is the Civil Court 
of the People's Court at the provincial or higher le vels.  For settling the disputes over the protectability 
of the object (i.e. the compliance with the protec tion criteria defined by the IP Law), the scope of 
protection (i.e. the protection volume determined by the protection claim) given to the object of 
industrial property rights, the competent authorities are the National Office of Intellectual Property, 
the Ministry of Science and Technology (under the administrative procedures) and the Administrative 
Court of the People's Court at the provincial or hi gher levels (under the judicial procedures).  The 
infringement handling procedures are executed afte r ending the Protection Title validity dispute 
settlement procedures. 
 Article 22.2 of Decree No 106/2006/ND-CP stipulates that in the case a written request for 
infringement handling is filled with an improper comp etent agency, that agency  must transfer the case 
dossier to the proper competent agency for handling that case.  The competence of dealing with the 
infringement cases is stipulated in Article  17 of Decree No 106/2006/ND-CP as follows: 
- Scientific and Technological Inspectorates shall have the competence to handle 
violations in the domain of industrial property, which are committed in production, 
trading, exploitation, advertisement or circul ation, except for violations in the import or 
export of goods. 
- Market Management Offices shall have the competence to handle violations in the 
domain of industrial property, which are committed in the circulation of goods and other commercial business activities in the market.  IP/C/W/514/Add.1 
 Page 11 
 
 
  - Customs Offices shall have the competence to handle violations in the domain of 
industrial property, which are committe d in the import or export of goods. 
- Police Offices shall have the competence to detect, verify, gather information and 
evidence on violations in the domain of industrial property, and notify them to the violation-handling agencies defined in Clau ses 1, 2 and 3 of this Article and handle 
violations in the domain of industrial property; 
- Provincial-level People's Committees and district-level People's Committees shall have 
the competence to handle violations in the domain of industrial property which are committed in their respectiv e localities whereby the sanc tioning levels, forms and 
handling measures applicable to those acts fa ll beyond the competence of the agencies 
defined in Clauses 1, 2 and 3 of this Article. 
17.  (Canada question no. 15):  With respect to Article 23 (Coordination in handling of 
violations) could Viet Nam provide additional information regarding:  (1) Which agency is 
responsible for handling violations involving co pyright infringement?;  (2) Which agency is 
responsible for handling violations involving trad emark infringement?; and (3) Which agency is 
responsible for handling violations involving patent infringement? 
 (1)  Competent agencies for handling violations involving copyright infringement: 
 Competent agencies for handling violations involving copyright infringement stipulated in 
Chapter III, Decree No 56/2006/ND-CP of 6 J une, 2006 on handling administrative violation 
in the culture and information acts include: 
- Culture, Sports and Tourism Inspectorates  
- Market Management Offices 
- Police Offices 
- Customs Offices 
- Provincial-level People's Committees and district-level People's Committees.  
 (2) and (3): Competent agencies for handling violations involving industrial property 
infringement, including trademarks and patent s stipulated in Decree No 106/2006/ND-CP 
(Article 17) include: 
- Science and Technology Inspectorates  
- Market Management Offices 
- Police Offices 
- Customs Offices 
- Provincial-level People's Committees and district-level People's Committees.  IP/C/W/514/Add.1 
Page 12  
 
  Notification of Laws and Regulati ons under Article 63.2 of the Agreement
 
18. (Canada question no. 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 fi nancial and circumstantial thresholds be met to 
criminally prosecute alleged infringers? 
 The structure of provision of Article 156 (in accordance with the general structure of criminal 
provisions) of the Criminal Code is designed as follows: 
- Clause 1 describes the basic elements (at l east) of acts constituting the crime and the 
basic penalty (minimum penalty) applied to those acts; 
- Clauses 2 and 3 describe the acts/circumst ances that shall be regarded as the 
aggravating elements (apart from the basic elements stipulated in Clause 1) and the 
aggravating penalties (higher penalties) app lied to the crime with the corresponding 
aggregative acts/circumstances; 
- Clause 4 stipulates the additional penalties wh ich can be applied to the offenders in 
certain circumstances. 
 According to that principle, a person may only be subject to the criminal prosecution for 
manufacturing, trading in fake goods when the act s conducted by him constitute the basic elements 
stipulated in Clause 1, Article 156 (including fina ncial thresholds and acti on elements of criminal 
offense).  Where his acts are not regarded as constituti ng one of the aggravating elements as stipulated 
in Clause 2 or Clause 3, he may be only subject to the basic penalty stipulated in Clause 1.  Where his 
acts are regarded as constituting one of the aggravati ng circumstances stipulated in Clause 2 or Clause 
3, he may be subject to the aggravating pe nalty stipulated in the respective clause. 
Decree No. 105/2006/ND-CP of September 22, 2006,  Detailing and Guiding the Implementation 
of a Number of Articles of the Law on Inte llectual Property on Protection of Intellectual 
Property Rights and on States Management of Intellectual Property  
19.  (Canada question no. 17):  According to Article 51 of Viet Nam's Decree No. 
105/2006/ND-CP of 22 September, 2006, the conclusions of written intellectual property 
assessments shall be considered as evidence used fo r handling the case.  In light of this, Canada 
understands that the courts are not bound by intellectual property assessment, but would 
appreciate further information from Viet Nam on the history of the use of these assessments by 
the courts. 
 As Canada's understanding, an assessment c onclusion is only considered as a source of 
evidence for handling of th e case, therefore, the courts have aut hority to use it but are not bound to 
that conclusion in their judicial proceedings.  The courts can request an assessment from various 
assessment organizations and/or assessors concerning the same issue.  The courts can also request an 
additional assessment, re-assessment where it finds n ecessary.  Judges have independent authority to 
consider and evaluate the facts of the case and make  their own decisions on the basis of consideration 
of all evidence submitted by parties and the ev idence collected by the court including written 
assessment conclusions. 
 However, the system of industrial proper ty assessment organizations and assessors under 
provisions of the IP Law has been in the initial stage of establishment.  At this moment, there is no IP 
assessment organization being practically operated.  The procedures for granting Assessor Card and Certificate of Assessment Organization are proceeded.  IP/C/W/514/Add.1 
 Page 13 
 
 
   Before the IP Law entered into force, the NOIP has the function of an industrial property 
assessment organization.  Currently, the NOIP s till provides their professional opinions on industrial 
property issues at the requests of the c ourts and other enforcement agencies. 
 The past assessment conclusions and the present professional opinions provided by the NOIP 
concerning certain cases of utility solutions, trademar ks, industrial designs have been used by the 
courts as a source of evidence (for the judges' refere nce) in the settlement pr ocedures of the cases, in 
accordance with the above-mentioned principle. 
H. BORDER MEASURES  
 No questions. 
 
I. CRIMINAL PROCEDURES  
20.  (Canada question no. 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 intellectua l property rights of other organizations and 
individuals shall, depending on the nature a nd seriousness of such infringement, be handled 
with civil, administrative or criminal remedies."   Canada would be grateful for clarifications 
regarding whether the involvement of an "organization" would meet the circumstance threshold in Article 156.2 of the Criminal Code an d therefore, permit criminal prosecution.  If 
not, what other circumstances, conditions, or th resholds must be met before criminal remedies 
are available? 
 Provision in Article 199 of the IP Law stipulat es general remedies against acts of infringing 
upon intellectual property rights in accordance with existing laws and regulations:  administrative, 
civil and criminal remedies.  The application of  particular remedies in handling of acts of 
infringement must comply with provisions on condit ions, procedures of related laws and regulations 
(such as Ordinance on handling of administrative violations and Decrees, Circulars guiding their 
implementation;  Civil Code, Civil Proceeding Code and Decrees, Circulars guiding their 
implementation;  Criminal Code, Criminal Proceeding Code and Circulars guiding their 
implementation). 
 According to the 1999 Criminal Code (Article 2 - Basis of criminal liabilities, Article 8 – 
Defination of Crime), only people (individuals) are subject to criminal liabilities for their crimes. When an individual commits acts of crime in the na me of an organization, he himself is subject to 
criminal liabilities. 
 Provision on circumstance threshold of crime "in the organized manner" in Article 156.2(a) of 
the Criminal Code does not mean criminal prosecution against crime-related organization, but criminal prosecution against the people (individu al or individuals) commiting the crime in the 
organized manner, that is to have a close collu sion among people who jointly commit the crime.  The 
crime in the organized manner is considered as an  aggravating circumstance and applied with a higher 
penalty in accordance with that Article. 
21. (United States question no. 1):  We understand that Vietnam is in the process of 
amending its criminal code and part of that am endment will include revisions in the copyright 
and industrial property sections.  Could you tell us whether other parts of the code will be 
amended?  If so, which parts?  When do you expect the amendment to pass? 
 The amendment to the Criminal Code of Vietnam aims at the determined targets, particularly 
of implementation of humanitarian policy of th e Party and the State, contributing to solving IP/C/W/514/Add.1 
Page 14  
 
  difficulties and shortcomings in the reality of fights against the crimes;  supplementing recently 
aroused - acts of violation in certain areas that ne ed to be criminalized;  gradually satisfying the 
requirements of international integration, especi ally so as to ensure the implementation of 
international treaties to which Vietnam is pa rty.  Therefore, the Law on amendment and 
supplementation to certain provisions of the Criminal  Law has been drafted with the respective scope 
of above targets, including amendment to provisions on acts of infringing upon copyright and 
industrial property rights in order to fully implement the TRIPS Agreement.  
 Under the National Assembly's programme on drafting laws and ordinances, the Draft Law on 
amendment and supplement to certain provisions of  the Criminal Code will be considered by the 
National Assembly in the Session 4 (November 2008)  and expected to be passed in the Session 5 
(May 2009). 
22. (United States question 2):  Earlier this ye ar, Vietnam passed a criminal circular as a 
temporary measure to comply with its TRIPS obli gations in this area.  Could you tell us what 
the status of the circular will be once the amendment passes? 
 In principle, when there is an amendment to  any legal provision, then the provisions which 
detail and guide its implem entation must be revised for their compliance with the former.  Therefore, 
in terms of the provisions on acts of infringing upon intellectual property rights, when the Law on amendment and supplement to certain provisions of th e Criminal Code is promulgated, the criminal 
circular guiding the implementation of the Crim inal Code 1999 shall also be amended and 
supplemented in order to be consistent with  the new provisions of the Criminal Code. 
23. (United States question no. 3):  We would we lcome an opportunity to provide comments 
on the draft amendment. 
 The Draft Law on amendment and supplement to certain provisions of the Criminal Code has 
been published on the website of the National Asse mbly of Vietnam (www.na.gov.vn) for comments. 
We welcome any comment and proposal on conten ts of amendment to provisions on intellectual 
property rights in the Draft, particularly as follows: 
 "Article 1:  Amendment, supplement to cer tain provisions of the Criminal Code 1999: 
  …   9. Article 131 is changed into Article 170a, and amended and s upplemented as follows: 
 "Article 170a.  Infringement upon copyright and related right 
 1.  Those who, without permission from the copyright holder or related right holder , willfully 
commit one of the following acts which infringe upon copyright and related right on a commercial 
scale , shall be subject to a fine of between VND 50  million and VND 500 million or non-custodial 
reform for up to two years: 
(a) Making a derivative work;  
(b) Fixing a live performance on audio, visual record; fixing the broadcasts; 
(c) Broadcasting or re-broadcasting the broadcasts;  IP/C/W/514/Add.1 
 Page 15 
 
 
  (d) Copying of works, performance on audio, visual fixation; copying audio, visual 
fixation, broadcast fixation; 
(dd)  Disseminating works, performance wh ich has not yet been fixed to the public 
  in whatever form; 
(e) Distributing the original or copies of work, audio, video fixation of performance,  
audio, video fixation, broadcasts to the public in whatever form; 
(f) Leasing the original or copies of cinematographic works, computer programs; 
(g) Manufacturing, assembling, transforming, importing, selling or leasing out equipment 
or decoding system of satellite signals carrying encrypted programs; 
(h) Receiving or relaying satellite signals ca rrying encrypted and illegally decoded 
programs. 
 2. The offenders, committing the crime in  one of the following circumstances, shall be 
subject to a fine of between VND 400 million and VND 1 billion  or shall be sentenced to between six 
months and three years of imprisonment: 
(a) In an organized manner;   
(b) Committing the crime more than once;  
(c) Causing serious  consequences. 
 3. The offenders may also be subject to a fine of between VND 20  million and VND 500 
million , to a ban from holding certain posts, practicing certain occupations or doing certain jobs for 
one to five years.". 
… 
 
 12.   Article 171 is amended and supplemented as follows: 
 "Article 171.  Infringing upon industrial property rights and plant variety right 
 1. Those who , intentionally commit one of the following acts which infringe upon 
industrial property rights or plant variety right on a commercial scale , shall be subject to a fine of 
between VND 50  million and VND 500 million or to non-custodial re-education for up to two years: 
(a) Illegally using protected marks, geographical indications; 
(b) Illegally using protected industrial property objects or plant varieties, other than the 
cases stipulated in point (a) of this  clause, and causing serious consequences . 
 2. The offenders, committing the crimes in one  of the following circumstances, shall be 
subject to a fine of between VND 400 million and VND 1 billion or shall be sentenced to between six 
months and three years of imprisonment:  
(a) In an organized manner; 
(b) Committing the crime more than once; IP/C/W/514/Add.1 
Page 16  
 
  (c) Causing serious consequences if falling under the cases stipulated in point (a) clause 
(1) this Article  or causing very serious or particularly serious consequences if falling 
under the cases stipulated in point  (b) clause (1) this Article.  
 3. The offenders may also be subject to a fine of between VND 20 million and VND 200 
million, to a ban from holding certain posts, practicing cer tain occupations or doing certain jobs for 
one to five years. 
 Article 3:  This Law shall take  effect as from 1 January, 2010. 
 The Government shall be in cooperation with the People's Supreme Court, Supreme 
Procuracy to detail and guide the implementation of this Law.". 
J. P
OLICIES /ACTION PLANS FOR ENHANCEMENT OF RIGHTS PROTECTION /ENFORCEMENT  
 No questions. 
 K. O
THERS  
 No questions. 
 
__________