On June 16, 2022, Vietnam voted to approve the Law amending and supplementing a number of articles of the Law on Intellectual Property (IP) of Vietnam. In the following article, ASL LAW Firm will summarize the key points in the revised Vietnam Intellectual Property Law in 2022.
The Vietnam IP Law was promulgated in 2005, amended, and supplemented in 2009 and 2019. Compared with the current regulations, the Law amending and supplementing a number of articles of the Vietnam IP Law 2022 adds many new points, such as:
Some terms have been amended and supplemented in the amended Vietnam IP Law
Derivative work means a work created on the basis of one or more existing works through translation from one language into another, adaptation, compilation, annotation, selection, arrangement, music adaptation, and other kinds of adaptations.
Published works, phonograms and video recordings are works, phonograms, or video recordings that have been released with the consent of the copyright or related rights holders for dissemination to the public with the copies in any form and in reasonable quantities.
Reproduction is the making of a copy of the whole or part of a work or phonogram or video recording by any means or form.
An industrial design in Vietnam is the external appearance of a product or part for assembly into a complex product, represented by shapes, lines, colors, or a combination of these elements, and visible in the manufacturing process of exploiting the utility of a product or a complex product.
A well-known trademark in Vietnam is a mark widely known by the relevant public in the territory of Vietnam.
Royalties are payments made for the creation or transfer of copyright or related rights in works, performances, phonograms, video recordings and broadcasts, including royalties, money, and remuneration.
Confidential invention means an invention identified as a state secret by a competent agency or organization in accordance with the law on the protection of state secrets.
Homophonic geographical indications are geographical indications that have the same pronunciation or spelling.
Additional content related to copyright in Vietnam
Regarding copyright, the author is the person who directly created the work. If there are two or more people directly co-create work with the intention that their contributions are combined into a complete whole, those people are considered co-authors by the Vietnam IP Law.
It should be noted that the person who supports, gives suggestions or plainly provides materials for other people to create works is not considered the author or co-author of such work.
The exercise of moral rights and property rights for works with co-authors must be agreed upon by the co-authors unless the work has a separate part that can be separated for independent use without prejudice to the part made by other co-authors or otherwise provided by law.
Exceptions to copyright infringement in Vietnam
In most cases, the person who uses the work by an author (co-author) must pay royalties to such individual(s). However, there are exceptions. The exceptions that do not infringe copyright are as follows:
+ Making a self-copy of the work for scientific research, personal study and not for commercial purposes;
+ Reasonable copying of a part of a work by copying equipment for scientific research, personal study and not for commercial purposes;
+ Reasonable use of works for illustration in lectures, publications, performances, sound recordings, video recordings, and broadcasts for teaching purposes;
+ Using works in official activities of state agencies;
+ Reasonably cite works without misleading the author to comment, introduce or illustrate in his/her work; For newspaper writing, use in periodicals, broadcasts, documentaries;
+ Use the work in library activities for non-commercial purposes;
+ Performance of theatrical, musical, dance and other art performances in cultural activities, non-commercial propaganda activities;
+ Photographing and broadcasting works of fine art, architecture, photography or applied art displayed in public places to introduce images of such works, not for commercial purposes;
+ Importing copies of other people’s works for personal, non-commercial use;
+ Reproduction by republishing in newspapers, periodicals, broadcasting or other forms of communication to the public of lectures, speeches, and other speeches presented to the public to the extent appropriate to the law;
+ Taking pictures, recording, and broadcasting events for the purpose of news reporting, including using works heard or seen in that event;
+ People with visual impairments, people with disabilities who cannot read print and other disabled people who cannot access works to read in the usual way, nurturers, caregivers, etc. care for people with disabilities, organizations that meet the conditions prescribed by the Government to use works as prescribed in Article 25a of the Intellectual Property Law.
It should be noted that all of the above use of works by the author/co-author must not be for commercial purposes and the citation of the author’s name and the origin of the work must be made clear to the people.
Changes to trademark, patent, geographical indications in Vietnam
Regarding patents, the requirement to obtain patent in Vietnam is updated.
From now on, the novel requirement to be patented in Vietnam is changed. Specifically, an invention is considered novel if it does not fall into one of the following cases:
a) Be publicly disclosed in the form of use, written description, or any other form in the country or abroad before the filing date of the application or prior to the priority date in the case of enjoying the right of priority;
b) Disclosed in another patent application with an earlier filing date or priority date but published on or after the filing date or priority date of that patent application.
Regarding trademarks, a mark will be protected if it satisfies the following requirements:
a) A visible mark in the form of letters, words, drawings, images, holograms or a combination thereof, represented by one or more colors or audible marks shown in graphic format.
b) Having the ability to distinguish the goods and services of the trademark owner from those of other subjects.
Regarding geographical indications, the right to register geographical indications of Vietnam belongs to the State. Organizations and individuals exercising the right to register a geographical indication shall not become the owner of such geographical indication.
Foreign organizations and individuals that are rights holders to geographical indications under the law of the country of origin have the right to register such geographical indications in Vietnam.
The validity of the protection certificate/title
For protection certificates/titles, the amended, revised Vietnam Intellectual Property Law in 2022 changes many important points on the termination of the validity of protection titles.
Specifically, a protection title shall be terminated in whole or in part in the following cases:
a) The protection titleholder fails to pay fees or charges to maintain or extend validity as prescribed;
b) The protection title holder declares to give up industrial property rights;
c) The owner of the protection title no longer exists or the holder of the certificate of trademark registration no longer conducts business activities without a lawful successor;
d) The mark is not used by the owner or the person authorized by the owner for a period of five consecutive years prior to the date of the request for invalidation without plausible reasons unless the use is commenced or restart at least three months prior to the date of the request for termination;
dd) The holder of the trademark registration certificate for the collective mark does not control or effectively controls the implementation of the regulations on the use of the collective mark;
e) The holder of a certificate of trademark registration for a certification mark violates the regulations on the use of the certification mark or fails to control or effectively control the implementation of the regulation on the use of the certification mark;
g) The geographical conditions that create the reputation, quality, and characteristics of the product bearing the geographical indication are changed, leading to a loss of the reputation, quality, and characteristics of that product;
h) The use of a protected mark for goods or services by the trademark owner or the person authorized by the mark owner misleading consumers about the nature, quality or geographical origin of such goods or services;
i) The protected mark becomes the common name of the goods or services registered for the mark itself;
k) The geographical indication of a foreign country is no longer protected in the country of origin.
Opinions of a third party on the grant of a protection title
The amended Law on Intellectual Property 2022 amends and supplements Article 112 and adds Article 112a after Article 112 on the opinions of a third party on the grant of a protection title.
From the date an industrial property registration application is published in the Industrial Property Official Gazette until the date of the decision to grant a protection title, any third person has the right to submit opinions with the state management agency in charge of industrial property rights on granting or not granting a protection title for that application.
Opinions must be made in writing, accompanied by documents or cited sources of information for proof.
The written opinion of a third party is considered a reference source of information for the processing of industrial property applications.
Before the date of issuance of the decision to grant a protection title, within the following time limits, any third party has the right to object to the grant of a protection title:
a) Nine months from the date the invention registration application is published;
b) Four months from the date the industrial design registration application is published;
c) Five months from the date the trademark registration application is published;
d) Three months from the date the geographical indication registration application is published.
Registration of rights to plant varieties in Vietnam
In order to have their rights to plant varieties protected, organizations and individuals must submit an application to the state management agency in charge of rights to plant varieties.
Organizations and individuals that have the right to register for plant variety protection include:
a) The author directly selects, creates, or discovers and develops plant varieties with his/her own efforts and expenses;
b) Organizations and individuals invest in the breeders to select, breed, or discover and develop plant varieties in the form of job assignment or hire unless otherwise agreed by the parties;
c) Organizations and individuals may transfer, or inherit the right to register for plant variety protection.
For plant varieties that are selected, bred, or discovered and developed as a result of scientific and technological tasks using the entire state budget, the right to register a plant variety is automatically assigned to the organization presiding over that task and without compensation.
For plant varieties that are selected, bred, or discovered and developed as a result of scientific and technological tasks, which are invested with many capital sources, including a part of the state budget, the part of the right to register for a plant variety corresponding to the proportion of the state budget allocated to the presiding organization automatically and without compensation.
The effective date of the amendment to the Amended Vietnam IP Law
This Law amending and supplementing a number of articles of the Law on Intellectual Property (IP) of Vietnam takes effect from January 1, 2023, except for the regulations on the protection of sound marks as trademarks that will take effect from January 14, 2022, and the regulation on the protection of test data for agrochemical products that will take effect from January 14, 2024.