Protecting Intellectual Property Rights in Vietnam

Vietnam’s IP legislation is comprehensive, covering every aspect of the protection of IP in accordance with international standards. However, enforcement agencies have found it difficult to keep up with recent rapid changes to the law, and administrative enforcement is complicated by the large number of bodies involved.

 

While counterfeiting, particularly of foodstuff and medicines, is widely considered a crime in Vietnam, it is not widely known that other types of IP infringement are also a crime - unless they involve a product that could cause injury or damage. Administrative action is the usual route for dealing with infringements, offering low-cost, quick results. However, the deterrent effect of this is limited because of the low level of penalties and lack of compensation.

 

According to the Embassy of US in Vietnam, no major company wants to develop manufacturing, research or development operations in a country in which the IPR involved in that operation can be freely pirated without legal penalties. The information technology sector, including software development and manufacture of such things as computer chips, can develop only in an environment in which IPR is protected from theft. The success the US has achieved in becoming the centre of technology development, especially software development in places like "Silicon Valley" is in large part a product of the effective IPR protection that exists in the US today.

 

IPR protection is also critical if a country is to encourage innovation and creativity among its people. Vietnamese companies are not likely to invest time and energy in writing computer software, for example, if that software is pirated and sold by others throughout the country and abroad. Likewise, Vietnamese companies will find investment in development of products and brand names wasted if other companies freely pirate their products with lower-quality goods that undermine the reputation of the brand name. Composers, performing artists, writers, painters and other creators of original works will find it difficult to earn a living and be rewarded for their work if their IPR is not protected by law and enforced. In short, stealing another person's idea or the product of their work is theft and no different than stealing their money. A society and economy that does not fight such theft creates an environment in which there is little regard for law and the property of others. For this reason, virtually all successful developed and developing countries have made IPR protection an important national policy priority.

 

Vietnam is a long-standing party to the Paris Convention for the Protection of IPRs and the Stockholm Convention and the Madrid Agreement for the International Registration of Marks. The country became a member of the Patent Cooperation Treaty in March 1993 and a member of the Bern Convention on Copyright Protection for Literacy and Artistic Works in June 2004. In April 2005, Vietnam officially acceded to the Geneva Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of Phonograms. The Government is now preparing for its accession to the Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite, the International Convention for the Protection of Plant Varieties (UPOV) and the Madrid Protocol. Accession to the Rome Convention for the Protection of Artists, Performers, Phonogram Producers and Broadcasting Agencies is also being considered.

 

Vietnam has bilateral agreements on IP protection with the EU, Switzerland and the US. Under the bilateral trade agreement with the US, Vietnam has committed to most obligations covered by the WTO TRIPS Agreement. The country also agrees that it will fully implement the TRIPS Agreement upon its accession into the organisation.

 

In recent years, Vietnam has passed and issued a number of laws, ordinances, decrees and directives to establish a legal framework and measures for the protection of IPRs in the country. From January 1, 2006, intellectual property protection and civil violations have been governed under Part VI of the 2005 Civil Code (passed in June 2005). The new law on IPRs, which was passed in November 2005, became effective on July 1, 2006.

 

Under the Ordinance on MFN and National Treatment, foreign holders of IPRs including copyright and relevant rights; industrial property rights (including patents, utility solutions, industrial designs, trademarks, geographical instructions, appellations of origin of goods, trade names, trade secrets, layout designs of integrated circuits), and plant species; and “rights to oppose competition deemed unfair by the law on IP rights, and other IPRs” will be provided with no less favourable protection than that is extended to domestic IP holders.

 

Intellectual property protected under the prevailing Vietnamese Law on Intellectual Property includes:

 

Copyright in literary, artistic, and scientific works; and copyright-related rights in performances, sound recordings, video recordings, broadcasting programmes, satellite signals carrying encrypted programme.

 

Industrial property including inventions, industrial designs, layout-designs of semi-conductor integrated circuits, business secrets, trademarks, trade names, and geographical indications.

 

Rights to plant varieties including plant varieties and their extension materials.

 

By law, IP holders whose IPRs are infringed may choose to pursue administrative measures, civil procedures, criminal prosecutions, or border measures to deal with IP violations.