Vietnam filed an application to join the WTO in early 1995 as part of its Doi Moi policy to shift the Vietnam economy from centrally planned economy into a market economy. However, this South East Asian country has yet to be accepted into the WTO.
Prior to 1995, the Vietnamese Intellectual Property (IP) protection system was far from compliance with the Trade Related Intellectual Property Rights Agreement (TRIPS Agreement) to enable it to be to be acceded to the WTO. For example, other than major IP protections such as patents, trademarks and industrial designs, other protections available under the TRIPS Agreement like trade secret, geographical indication, layout designs of integrated circuits etc. were not regulated into the Vietnamese IP law.
While IP regulations have been in place in Vietnam since 1980s, protection has developed more quickly since 1995, after the promulgation of the Civil Code and Vietnam’s application to join the WTO. Vietnam, since 1995, has been constantly evolving its IP policy to ensure that it contributes to the implementation of IP regulations to pave the way for integration into the WTO requirements. Now, Vietnam has enacted protection for trade secret, geographical indication, trade name, repression of unfair competition, protection of new plant varieties, copyright and related rights and protection of layout designs of integrated circuits.
Vietnam has also made priority to participating in international treaties in the field of IP to which it is yet to be a party. For instance, it has joined the Berne Convention on Copyrights on October 26, 2004 and is planning to join the International Union for the Protection of New Varieties of Plants (UPOV) Convention in the near future.
In order to be fully compliance with the TRIPS Agreement, Vietnam had developed an Action Plan to ensure that its IP system is in compliance with international treaties, particularly the TRIPS Agreement besides having the system of laws and regulations are upgraded, incorporating provisions on IP protection in the Civil Code.
The Action Plan reforms the administrative procedures for prosecution and maintaining IP rights conforming to the requirements under the TRIPS Agreement. Some of the IP laws used earlier were not in compliance with the TRIPS Agreement. For instance, under the Ordinance on the Protection of Industrial Property (1989), patents are only protected for a maximum term of 15 years from the date of grant of the patents whereas utility solutions (petty patents) for 7 years. However, under this Action Plan, the duration of patents has been changed to a maximum term of 20 years from the date of filing of the patents and 10 years for utility solutions.
The Action Plan also touches on enhancing the effectiveness of IP protection regime in Vietnam. The Action Plan promulgates some legal documents concerning the measures and remedies against infringement and violation of IP attaching particular importance to the administrative measures. Under this Action Plan, Vietnam will follow international conventions with regards to IP enforcement. Beside prosecuting and penalising the infringers, Vietnam will offer rewards for whistle blowers. Further, sudden inspections will be conducted more often.
Vietnamese public is largely unaware of IP protection, which is a major stumbling block in this country. Even most companies, including government related companies (GLC) are not fully aware of or exposed to the importance of IP. This, to a certain extent, hinders Vietnam’s goals to protect and boost creative investment, generate a healthy competitive environment and integrate into the international economy. Under the Action Plan, Vietnam has planned to promote outreaching and disseminating activities in the field of IP to the public by providing training activities on IP for enterprises to raise public awareness of IP and establishing IP promoting associations. Road shows and seminars have been arranged throughout the country to disseminate the IP knowledge to the Vietnamese public and companies.
Competent IP service providers are a necessity in order for a country to develop its IP portfolio successfully and to ensure the IP owners’ rights are fully protected. In Vietnam, there are only a few IP service providers who are competent, particularly in patents which require service providers with some technical background. Under this Action Plan, Vietnam will also enhance the capabilities of IP service providers by providing continuous training to the IP service providers, both in Vietnam as well as aboard.
The main concern of IP owners, which mostly are foreigners, is protection of their IP and the capability of the Vietnamese enforcement officers in enforcing their rights. Under the Action Plan, the types of IP enforcement available In Vietnam are administrative actions, civil actions, criminal actions and border control measures.
Administrative authority has been vested with various authorities, from central to local government. Among them, the most effective authorities are the Board of Inspectorate in Science and Technology at the central government level and Department of Science and Technology at each of the provinces. Vietnam considers administrative measures in preventing and handlings IP infringement as useful tools and are preferred to jurisdictions. In Vietnam, parties involved are not used to IP litigation procedures in Courts and therefore Vietnam has paid more attention to improve the administrative tools to handle IP infringement issues.
In civil actions, IP owners seeking damages for infringement of their IP rights must institute a civil proceeding in Vietnamese People’s Court. Where one of the parties to the action is a foreigner, the civil proceeding must be instituted in People’s Court of Hanoi or Ho Chi Minh City, regardless of where the infringing activity takes place.
In criminal actions, IP owners may make denunciation for the investigation to the police and if convicted, criminal actions will be brought against the criminals pursuant to applicable provisions of the Criminal Code. Prosecution authority lies with the police who can investigate, seize goods and arrest infringers and public prosecutors who have, in addition the same powers as the police, the authority to indict and prosecute infringers.
Vietnam has made certain bilateral agreements with countries such as United States. In a statement released on January 18, 2006, the US Department of State has confirmed that a new round of bilateral market access negotiations covering industrial and agricultural tariffs and services, and on multilateral issues on Vietnam’s accession to the WTO went well and the US is encouraged by the concentrated efforts of Vietnam to pass legislation needed for Vietnam to join WTO.
The Vietnamese National Assembly has approved the amended Vietnamese law on IP which is substantially meeting almost all requirements under the TRIPS Agreement. The amended law will come into effect on July 1, 2006. Accordingly, Vietnam should be and will be a member of the WTO in a very near future.