Since its enactment in 2005, the Intellectual Property Law of Vietnam has undergone several revisions and amendments, with major updates in the 2009 and 2019 editions. Following these major revisions were the issuance of decrees guiding the implementation of the Intellectual Property Law. Recently, the government issued Decree No. 65/2023/ND-CP (“Decree No. 65”), detailing certain provisions and measures for enforcing intellectual property rights related to industrial property, protection of industrial property rights, rights on plant varieties, and state management of intellectual property.
Since 1989, when Vietnam issued its first legal document on intellectual property rights, specifically the Law on Protection of Industrial Property in 1989, Vietnam has experienced nearly 35 years of implementing and applying intellectual property protection in society.
During this period, intellectual property laws significantly contributed to Vietnam’s rapid development. Through extensive international openness, interaction, and business cooperation with many countries and multinational corporations worldwide, Vietnamese businesses have had to adopt better mechanisms to protect intellectual property rights to meet international integration needs.
Development of Intellectual Property in Vietnam
In 1995, Vietnam enacted its first Civil Code, which included provisions on intellectual property rights in Part VI of the Code. These provisions covered author rights (Articles 745 to 779) and industrial property rights (Articles 780 to 825).
Following the 1995 Civil Code, the government issued Decree No. 63/1996/ND-CP in 1996, the first decree in Vietnam detailing industrial property rights. Over the past 35 years, the government has made two significant amendments to the Intellectual Property Law and issued numerous decrees guiding its implementation in Vietnam, such as Decree No. 99/2013/ND-CP, Decree No. 114/2013/ND-CP, and Decree No. 22/2018/ND-CP.
Decree No. 65 is the latest decree amending and supplementing provisions related to industrial property. This decree replaces Decree No. 103/2006/ND-CP, Decree No. 105/2006/ND-CP, Decree No. 119/2010/ND-CP, Decree No. 122/2010/ND-CP, and Decree No. 154/2018/ND-CP.
Challenges and Difficulties
Despite being built over almost 35 years, the enforcement of intellectual property law in Vietnam has faced numerous challenges, especially in the face of continuous changes in technology and the international economy. One of the significant challenges is the limited enforcement of the law, particularly in controlling online violations, such as copyright infringement on the internet. Identifying entities responsible for online violations and collecting evidence have been challenging due to the rapid disappearance or alteration of data on the internet.
From a legal perspective, many entities in the field of industrial property have suggested that current industrial property terms need clarification. Procedures for establishing industrial property protection need to be clearly defined to avoid complexities in enforcement, especially concerning international agreements on industrial property that Vietnam has signed in recent years.
Acknowledging these challenges, the government issued Decree No. 65, comprising 5 chapters and 125 articles.
Notable Points in Decree No. 65
Several new provisions in Decree No. 65 establish a legal basis for the enforcement of intellectual property rights in Vietnam, including:
Firstly, the decree revises the existing forms for registering industrial property rights. Appendices I, II, and IV of Decree No. 65 list application forms for trademark, patent, geographical indication, industrial design, layout-design forms, and various new forms, including “Application for confirmation of first-time circulation permit delay for pharmaceuticals” and “Declaration of compensation due to delayed first-time circulation permit for patented pharmaceuticals.”
A significant point for entities representing industrial property owners and intellectual property law services in Vietnam is the inclusion of sound trademarks in the registration forms from the effective date of the decree. This addition expands the previous choices of collective trademarks, certification trademarks, and three-dimensional trademarks.
Sound trademarks, a non-traditional type of trademark, were first protected under Vietnamese law according to the amendments to the Intellectual Property Law in 2022, in line with Vietnam’s international commitments under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). These new forms will be applicable for rights establishment in the field of industrial property in Vietnam starting from August 23, 2023.
Secondly, the decree tightens security control for patents and supplements the definition of secret patents. Regulations regarding secret patents are detailed from Article 48 to Article 52 of Decree No. 65. This concept is newly defined and supplemented in Article 12a and Article 89a of the Law Amending the Intellectual Property Law in 2022.
Article 14 and Appendix VII of Decree No. 65 specify the procedures and scope of security control for patents in Vietnam, especially for patents in technical fields that pose potential risks to national defense and security.
In cases where applicants intend to file patents abroad, they must obtain confirmation from agencies designated by the Ministry of National Defense and the Ministry of Public Security that the patents in question are not state secrets and do not negatively impact Vietnam’s national security. With the stringent examination and review process by these ministries, Vietnam’s ability to protect itself from unintentional disclosure of significant patents related to national security will increase, preventing the outflow of critical intellectual property.
However, with such tightened patent application procedures, the patent examination process is expected to significantly lengthen once the decree takes effect. Applicants, as well as entities representing industrial property owners, the National Office of Intellectual Property of Vietnam, and related parties, will need to find practical solutions to shorten the examination period, avoiding delays for applicants.
The complexity in patent application examinations may also pose challenges to parties involved, notably the provision to halt examinations “if there are grounds to suspect that the patents belong to technical fields that affect national defense and security,” as stipulated by state management agencies in industrial property. This regulation may discourage businesses from engaging in research and development in sensitive areas related to national security, potentially affecting Vietnam’s development in these sectors.
Thirdly, the decree adds provisions related to international registration.
Articles 22 to 24 of Decree No. 65 detail procedures related to international registration applications for industrial designs under the Hague Agreement originating from Vietnam and designated to Vietnam. Articles 25 to 28 of the decree regulate procedures for international trademark registrations via the Madrid System originating from Vietnam and Madrid System registrations designated to Vietnam.
Besides the regulations on the Madrid application examination process, Article 26(3) of Decree No. 65 supplements additional options after a Vietnamese-originating Madrid application receives international registration, such as expanding the territorial scope of protection, modifying the trademark name, owner’s address, limiting the list of goods and services, extending the validity period of international registration, designating representatives, changing representatives, recording international registration transfers, etc., directly through the International Bureau of WIPO or via the National Office of Intellectual Property.
For Madrid applications designated to Vietnam, Article 27(10) of Decree No. 65 adds noteworthy provisions regarding the reception of “third-party opinions on Madrid applications designated to Vietnam.” Accordingly, relevant parties can no longer file objections to Madrid applications designated to Vietnam but can only submit opinions that can be used as references during the application processing period.
This regulation is established according to Vietnam’s commitment to comply within the 12-month examination period from the date of notification by the International Bureau concerning Madrid applications designated to Vietnam.
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