History of IPR protection in Vietnam
Protection of Industrial property rights in Vietnam can be traced back to the French colonial period at the end of the 19th century, when the French patent law was declared applicable to the territory of Indochina (now Vietnam, Laos and Cambodia). The regime was abandoned in 1955 after the end of the Indochinese war, when Vietnam was divided into two parts. In 1957, the market-based economy South Vietnam adopted legislation on IPR protection, which was abolished after the victory of the communist North in 1975. IPR protection was not recognised by the northern regim, which followed a central-planning economy and, after the unification, applied it to the whole country. Only in the 1980s did Vietnam begin to creat a modern IPR protection system alongside with its adoption of the so-called socialist-oriented market economy and open door policy.
The Government’s introduction of Decree No. 31/CP on Technical Initiatives and Inventions in 1981 marks the starting point of the Vietnamese modern system for IPRs protection. But its real development began 15 years later, when the country sought WTO accession and tried to reform its legal system to comply with the international standards. On October 1995, just a few months after the application to join the WTO had been filed, the National Assembly enacted the first Civil Code legislatively guaranteeing protection of copyright and some industrial property rights. The Civil Code 1995 marked the first big step forward in Vietnam’s IP development, but it was still far from complying with the requirements of the TRIPs Agreement.
The following decade witnessed substantive developments of the IP protection system. To bring the Civil Code in line with the TRIPs Agreement, the policy makers promulgated a wide range of ordinances, decrees and circulars covering all IP subject matters it required. The IP legal framework has been gradually improved and IP experience accumulated, leading to the enactment in 2005 of the first IP Law that codified fragmented regulations in a single act. This event has marked a major milestone in the country’s international integration process bringing its IP protection system closer to the world, where independent and separate IP laws are common. Intellectual property rights under the IP Law include three categories namely Copyrights, Industrial Property Rights and Plant Variety Rights.
- Regarding Copyrights, it is the first time the term «related rights» is spelt out in law in Vietnam. In fact, the Civil Code includes provisions on «rights and obligations of performers, producers of phonograms and videograms and broadcasting organizations». However, such rights have not been named as «related rights». The IP Law defines «related rights» as including «performance, sound and image recording, broadcast, encrypted program-carrying satellite signal».
- Regarding Industrial Property Rights: Under the Civil Code, there exists only provisions on patent, utility solution, industrial design, trademark and appellation of origin. Protection of other industrial property rights are stipulated in several documents issued by the Government such as Decrees n° 54 and 42. Apart from the types of IP rights covered by the Civil Code, the IP Law includes provisions on circuits layout, geographical indication, unfair competition, trade name and trade secret.
- Regarding Plant Variety Rights: It is the first time the protection of plant variety rights is included in the law (i.e. Part IV, Articles from 150 to 200 under the IP Law). Previously, protection of plant variety rights was stipulated in the Ordinance on protection of plant variety issued by Standing Committee of the National Assembly on March 24, 2004.
A few months after the Law became effective on July 1, 2006, the Government issued a series of necessary regulations for its implementation, making the whole national system fully consistent with the international standards.
The current Domestic Legislation for the protection and enforcement of intellectual property rights in Vietnam includes but not limited to:
1. Civil Code 2005 passed by the National Assembly on June 2005 and effective from 1 January 2006 (Part VI “Intellectual Property and Technology Transfer”, Part VII “Civil Relations having foreign elements”, particularly Article 774 “Copyrights having foreign elements” and Article 775 “Industrial property Rights and Plant Variety Rights having foreign elements”)
2. Civil Procedure Code 2004 passed by the National Assembly on June 2004 and effective from 1 January 2005 providing processes and procedures for settlement of civil affairs and enforcement of civil judgments
3. Criminal Code of 1999 of the National Assembly, enacted in December 1999 (Section 131 – on copyrights, Section 156, 157, 158 – on counterfeits, Section 170, 171 – on industrial property)
4. Criminal Procedure Code of 2003 of the National Assembly, enacted in November 2003 and effective from 1 July 2004 providing processes and procedures for institution of legal proceedings, investigation, prosecution, and enforcement of criminal judgments
5. Intellectual Property Law 2005 passed by the National Assembly on 29 November 2005 and came into force on 1 July 2006 (six parts, 222 articles)
6. Competition Law 2004 of the National Assembly, enacted in December 2004 and effective from 1 July 2005 (six chaprters, 123 articles)
7. The Customs Law of 2001 of the National Assembly, enacted in June 2001 and effective as of 1 January 2002 amended in June 2005
8. Law on Information Technology No. 67/2006 passed by the National Assembly on 29 July 2006 and came into force on 1 January 2007
9. Law on Appeal and Denunciation No. 9/1998/QH10 of the National Assembly, enacted on December 1998, amended and supplented by Law on Appeal and Denunciation No. 26/2004/QH11 of June 2004 and Law on Appeal and Denunciation No. 58/2005/QH11 of November 2005
10. Decree No 100/2006/ND-CP of the Government, enacted in September 2006 and effective as of November 2006, guiding the implementation of articles of the IP Law concerning copyrights and related rights
11. Decree No 103/2006/ND-CP of the Government, enacted in September 2006 and effective as of November 2006, providing guidelines for implementing certain articles of the Intellectual Property Law concerning industrial property
12. Decree No 104/2006/ND-CP of the Government, enacted in September 2006 and effective as of November 2006, guiding the implementation of articles of the IP Law concerning rights on plant varieties
13. Decree No 105/2006/ND-CP of the Government, enacted in September 2006 and effective as of November 2006, providing guidelines for the implementation of certain articles of the Law on Intellectual Property regarding Enforcement of Intellectual Property Rights and State management of intellectual property
14. Decree No 106/2006/ND-CP of the Government, enacted in September 2006 and effective as of November 2006, detailing and providing guidelines for implementing the provisions on handling of administrative violations concerning industrial property
15. Circular 01/2007/TT-BKHCN of the Ministry of Science and Technology, ebtablishing regulations to implement Decree 103/2006/ND-CP, promulgated on 22 September 2006, that provides guidelines for implementing certain articles of the Intellectual Property Law concerning industrial property. The Circular came into effect as of 9 May 2007
16. Circular No. 132/2004/TT-BCT of the Ministry of Finance, enacted in December 2004 and came into force on 31 January 2005, guiding the Collection, Payment, Management and Use of Industrial Property Fees and Charges
17. Circular No. 129/2004/TTLT/BTC-BKHCN of the Ministry of Science and Technology, enacted in December 2004, guiding the implementation of border measures concerning the industrial property rights for export and import goods
18. Joint Circular 58/2003/TTLT-BVHTT-BTC of the Ministry of Culture and Information and the Ministry of Finance, enacted in October 2003 providing guidelines on copyright protection for exportations and importations at customs offices.
Vietnam has been a member of numerous multilateral treaties and bilateral agreements regarding the protection of intellecual property rights which include but not limited to:
Important Multilateral Treaties
- Paris Convention for the Protection of Industrial Property Rights (“Paris Convention”) in 1949;
- Madrid Agreement Concerning the International Registration of Marks (“Madrid Agreement”) in 1949;
- Patent Cooperation Treaty (“PCT”) in 1993;
- ASEAN Framework Agreement on Intellectual Property in 1996;
- Berne Convention for the Protection of Literary and Artistic Works in 2004;
- Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms in 2005;
- Brussels Convention relating to the distribution of encrypted program-carrying satellite signals in 2006;
- The Madrid Protocol in 2006
- Agreement Between the Government of United States of America and the Government of the Socialist Republic of Vietnam on the Establishment of Copyright Relations in 1997 (“US-Vietnam Copyright Agreement”)
- Agreement between the Republic of Switzerland and the Socialist Republic of Vietnam on the protection of intellectual property rights in 1999;
- Agreement Between the United States of America and the Socialist Republic of Vietnam on Trade Relations in 2000 (“US-Vietnam Trade Agreement”)