Vietnam Joins WTO – Moving Forward

After having been accepted by the Vietnam National Assembly on November 2005, the new Vietnamese Intellectual Property Law came into force on 1 July 2006. The enactment of the Law on Intellectual Property improves the efficiency of intellectual property rights, and contributes to the completion of Vietnamese legal systems. All the Intellectual Property regulations which were formerly stipulated in various documents such as the Vietnamese Civil Code, have been compiled and provided in a separate law consisting of 6 parts, 18 chapters and 222 articles. This new law incorporated notable amendments and supplements in order to meet the international standards and marks a milestone in the Vietnamese IP development. In this country of over 80 million people, where IP has inevitably become one of the main issues, this law is the proof of the Vietnam’s continuous efforts and strong determination to improve its IP law system.

One important new feature of the new Trade Mark Law is the listing of the criteria to determine whether a mark is well-known, such as the duration of continuous use of the mark, the number of countries where the mark is registered or the value of sales of products/services bearing the mark. Moreover, the time limit for examination as to form is reduced from three months to one month from the filing date. The time limit for examination as to substance is also reduced from nine months to six months from the date of publication of the trade mark application. Furthermore, all the applications will be published in the Official Gazette within two months from the date on that the applications are accepted as filed in due form. These reductions of time limit aim to accelerate the overall process and obtain a more efficient examination of the mark applications.

Less than three months after the new Law on Intellectual Property came into effect, the Government has issued four decrees, namely decree No 100/2006/ND-CP dated 21 September 2006 which became effective on 17 October 2006, and decrees No 103/2006/ND-CP, 105/2005/ND-CP and 10/2006/ND-CP which have taken effect on 21 October 2006. These decrees are the continuation of this trend to improve of the Vietnamese IP law.

The most important changes are related to the infringement of Intellectual Property Rights. Indeed, the Decree No 105/2005/ND-CP regulates how to determine infringement act: the loss of possession, the reduction of income and profit, the loss of business opportunity, the reasonable funding for preventing and overcoming damages, and the spiritual damages. Furthermore, the same decree provides guidelines on how to assess infringement damages, for example in taking into consideration the value of the transfer of the right to use the invention if it was transferred. Moreover, can be included in the damage the reasonable costs of hiring attorneys. Decree 105 provides also procedure details such as how to lodge and handle complains for infringement.

The decree No 106/2006/ND-CP makes provision for acts of administrative violation in the Industrial Property domain and qualifies the followings acts as “acts of infringing”: producing (manufacturing, processing, assembling, etc.), exploiting, selling, transporting, advertising, offering, stocking, importing, etc infringed products. Moreover, according to this decree, acts of infringing upon invention rights, industrial designs or layout-designs shall be subject to fines up to 1 to 2 times the value of goods if this value is VND 20 million (approx. USD 1250), up to 2 to 3 times the value of the goods if the value is VND 20 to 40 (approx. USD 1250 to 2500) million, up to 3 to 4 times the value of the goods if the value is VND 40 to 60 million (approx. USD 5000 to 7500), and 4 to 5 times the value of the goods if the value is exceeding VND 60 million (approx. USD 7500). For acts of infringing upon trademark rights, fines shall be imposed are up to 1 to 2 times the value of goods if this value is VND 15 million (approx. USD 937.5), up to 2 to 3 times the value of the goods if the value is VND 15 to 30 million (approx. USD 937.5 to 1875), up to 3 to 4 times the value of the goods if the value is VND 30 to 45 million (approx. USD 1875 to 2812.5), and 4 to 5 times the value of the goods if the value is exceeding VND 45 million (approx. USD 2812.5). Additional penalties and compulsory remedial measures, such as confiscation of evidence, destruction of infringing goods or publication of corrective notices may also be imposed.

The new Vietnamese Trade Mark Law was a premise for Vietnam to become member of the World Trade Organisation (WTO). The announcement on 14 June 2006 by the Director of the National Office of Intellectual Property that the Madrid Protocol would enter into effect in Vietnam on 11 July 2006 is an additional sign of this country determination to meet international standard. Vietnam is indeed member of both Madrid Agreement and Madrid Protocol. From July this year, registering trade marks in member countries of the Madrid Protocol will be done by sending an application to the World Intellectual Property Organization (WIPO) via the National Office of Intellectual Property (NOIP).

The Vietnamese authorities are also aware of the fact that they have to be more effective in IP enforcement and to show more efficient police and customs force. In conducting frequent raids early this year, they have shown their determination to improve their IP law systems toward the regional and international standards. The authorities have taken action against a number of large distributors of pirated disks resulting in seizures of several hundred of thousand of disks. They also broke up a counterfeit cigarette operation and seized approximately 420 boxes of cigarettes. Another successful operation was the seizure of 20,000 counterfeit birth control pills and 550 bottles of counterfeit spirits in January 2006.

The new implementing instruments mentioned above, together with the frequent raids conducted by the authorities will definitely reduce the infringement of IP rights in Vietnam.

These improvements are part of the numerous efforts made by this country to reach its goal of joining the WTO. These efforts have been rewarded on 7 November 2006 as Vietnam has been accepted by the General Council as a member of the WTO after almost twelve years of negotiation. Vietnam is therefore set to become the 150th member of WTO early next year.