Vietnam promulgated the Intellectual Property Law 2005 on 12
December 2005. This Law is consistent with international practice. Accordingly,
protection is available for the following types of intellectual property:
- copyright and copyright related rights
- inventions
- industrial designs
- layout-designs of semi-conductor integrated circuits
- business secrets
- trademarks
- trade names
- geographical indications
- rights to plant varieties.
Copyright
Vietnam is a party to the Berne Convention for the
Protection of Copyright in Respect of Literary and Artistic Works under
Decision No.332/QD-CTN dated 7 June 2004 of the President of Vietnam. In
addition, the Law on Intellectual Property 2005 also protects copyright with
respect to certain scientific works, irrespective of form, language and
quality. Copyright in Vietnam may be protected without any legal recognition.
Trade marks
Vietnam is a signatory to the Paris Convention for the
Protection of Intellectual Property (Paris Convention) and Protocol Relating to
the Madrid Agreement Concerning the International Registration of Marks.
Priority registration may be claimed in respect of marks registered in other
countries within the previous six months. Protection is granted for a period of
ten years from the date of filing or the priority date and can be renewed for
successive ten year periods.
The specification of the goods will determine the ambit of
protection for the mark. The classes for registration of trade marks in Vietnam
are based on the International Classification of Goods and Services under the
Nice Agreement.
Patents, inventions
and utility solutions
Vietnam is a signatory to the Paris Convention and Patent
Cooperation Treaty (PCT). Priority registration may be claimed in respect of
inventions registered in other countries within the previous twelve months for
registration under Paris Convention, twenty-one months for registration under
Chapter I of PCT, and thirty-one months for registration under Chapter II of
PCT from the priority date, respectively.
Protection for an invention is granted for twenty years from
the filing date or the priority date. For “utility solutions” (or technical
solution/ technological development), protection is granted for ten years from
the filing date or the priority date.
Industrial designs
Where protection of inventions and utility solutions relates
to technical aspects of a product, protection of industrial designs relates to
the outer appearance of a product manifested by means of contours,
three-dimensional forms or colors, or a combination of such elements, which is
new in character throughout the world and may be used as a model for
manufacturing handicrafts or industrial products.
The duration of protection is five years and renewable for
two further five year periods.
Semiconductor integrated circuit layout designs
Semiconductor integrated circuit layout designs are defined as a
three-dimensional description of circuit elements and their interconnections in
semiconductor integrated circuits. Under the laws of Vietnam, protection of a
layout design is valid for the following periods, whichever ends earlier:
- ten years from the date of grant of a certificate of protection
- ten years from the date of filing by an authorized person
or the date that person permits commercial exploitation of the design anywhere
in the world
- 15 years from the date of producing the design.
Trade secrets
Vietnam law states that a trade secret is protected if it
is:
- not common knowledge
- applicable in business activities whereupon its holder is
given advantages in comparison with others
- protected by the owner with necessary measures to avoid
disclosure and access.
Further, a geographical indication is a sign used to
indicate a product originating from a specific area, locality, region or
country. Vietnamese law allows a geographical indication to be eligible for
protection if it meets the following conditions:
- the product having the geographical indication originates
from the area, locality, territory or country corresponding to such
geographical indication
- the product having the geographical indication has a
reputation, quality or characteristics essentially attributable to the
geographical conditions of the area, locality, territory or country
corresponding to such geographical indication.
A certificate of registered geographical indication shall
have indefinite validity starting from the grant date.
Trade name
A trade name is a designation of an organization or
individual used in business to distinguish the business entity bearing such
designation from other business entities acting in the same field and area of
business. The area of business shall be the geographical area where a business
entity has business partners, clients or reputation. Protection will be
afforded to trade names only where the trade name is used in connection with an
on-going business.
Rights to plant
varieties
A plant variety is a plant grouping within a single botanical
tax on of the lowest known rank, uniform of morphological, stability in the
propagation circle, which can be distinguished by the phenotype expressed by a
genotype or the combination of genotypes and distinguished from other plant
grouping in at least one genetic phenotype. Rights to new plant varieties shall
be established on the basis of the competent state authority’s decision on the
grant of Plant Variety Protection Title.
Franchising Law
The franchising industry in Vietnam has been gradually developing
over the past few years with the products and services of a number of
well-known local and foreign brand names achieving higher market profile.
However, this development has taken place in the absence of any regulations
directly governing franchising activities. The franchising industry in Vietnam
had relied on regulations on related issues, such as those relating to the
licensing of intellectual property rights and technology transfer, coupled with
regulations relating to general contractual obligations.
In June 2005, the National Assembly of Vietnam passed the
new Commercial Law 2005 (Commercial Law) (and effective from 1 January 2006),
which includes eight articles dealing with franchising activities (Articles 284
– 291). The Government also issued Decree No.35/2006/ND-CP (Decree) guiding the
implementation of the Commercial Law with respect to franchising activities on
31 March 2006, which was followed by Circular No.09/2006/TT-BTM dated 25 May
2006 of the Ministry of Trade on registration of franchising activities.
In practice there are restrictions under the application of
the WTO Schedule as described above.
Franchisors
Under the Decree, a franchisor must satisfy the following
conditions:
- the business system to be franchised has been operating for
at least one year. In a case where a foreign franchisor grants a franchise to a
primary franchisee being a Vietnamese business entity, such Vietnamese business
entity must operate the franchise business for at least one year in Vietnam
before sub-franchising
- the business entity has registered the franchising activity
with the competent authority
- the goods and services of the franchise are not on the list
of goods and services in which business is prohibited.
Franchisees
A franchisee must have a license to carry out the franchised
business. Under the Decree, only goods and services which are not subject to
any transactional prohibitions may be franchised. Further, for franchise of
goods and services which are subject to certain conditions, franchising can
only be carried out if these conditions are satisfied.
Registration of
franchising agreements
Under the Decree, all franchising agreements must be
registered. The Ministry of Industry and Trade is the authority for
registration of:
- franchising activities from overseas into Vietnam including
those from export processing zones, non-tariff zones and other separate customs
areas into Vietnamese territory
- franchising activities from Vietnam to overseas, including
those from Vietnamese territory into export processing zones, non-tariff zones
or separate customs areas.
The Department of Industry and Trade where the proposed
franchisor registers its operations will carry out registration of domestic
franchising activities, except those transferred across the borders of export
processing zones, non-tariff zones or separate customs areas in accordance with
the laws of Vietnam.