Law No. 50/2005/QH11 on Intellectual Property · 2011-10-31 · 86 PLANT VARIETY PROTECTION Viet Nam Law No. 50/2005/QH11 6. Intellectual property right holder is the owner of the

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No. 101 - DECEMBER 2007

Viet Nam Law No. 50/2005/QH11

VIET NAMINTELLECTUAL PROPERTY LAW

(Law No. 50/2005/QH11)*

Adopted by the National Assembly on November 29, 2005,and entered into force on July 1, 2006

(Article 1 to 5 of Part One, Part Four and Part Five of the Law)

* Translation provided by the Vietnamese authorities.

Pursuant to Article 34(3) of the 1991 Act of the UPOV Convention, the positive advice of the Council of UPOV concerningthe legislation of Viet Nam is contained in paragraph 7 of document C(Extr.)/23/4, based on document C(Extr.)/23/2(http://www.upov.int/en/documents/c_extr/index_c_extra_23.htm).

Pursuant to the Constitution 1992 of the SocialistRepublic of Vietnam as amended and supplementedby the Resolution No. 51, 2001, QH10 of the 10thSection of the 10th National Assembly dated 25December, 2001;

This Law stipulates intellectual property rights.

PART ONEGENERAL PROVISIONS

[Extract from Part One: Articles 1 to 5 only]

Article 1Scope of regulation

This Law stipulates copyright, copyright - relatedrights; industrial property rights; rights in plantvarieties and for the protection of these rights.

Article 2Applicable subjects

This Law applies to Vietnamese organizations andindividuals, foreign organizations and individuals thatsatisfy the requirements stipulated in this Law andinternational treaties to which the Socialist Republicof Vietnam is party.

Article 3Objects of intellectual property rights

1. Objects of copyright include literary, artistic andscientific works; objects of copyright - related rightsinclude performances, sound recordings, videorecordings; broadcasting programs; satellite signalscarrying encrypted program.

2. Objects of industrial property rights includeinventions; industrial designs; layout-designs of semi-

conductor integrated circuits; business secrets;trademarks; trade names and geographicalindications.3. Objects of rights to plant varieties are plantvarieties and its propagating materials.

Article 4Interpretation of terminologies

In this Law, the following terminologies shall beunderstood as follows:

1. Intellectual property rights are the rights oforganizations, individuals to their intellectual property,including copyrights and copyright - related rights,industrial property rights and rights to plant varieties.

2. Copyrights are the rights of organizations,individuals to works created or owned by them.

3. Copyright - related rights (hereinafter referred toas related rights) are the rights of organizations,individuals to performances, phonograms,broadcasting programs, satellite signals carryingencrypted program.

4. Industrial property rights are the rights oforganizations, individuals to inventions; industrialdesigns; layout-designs of semi-conductor integratedcircuits; trademarks; trade names, geographicalindications, business secrets created or owned bythem and rights to repression of unfair competition.

5. Rights to plant varieties are the rights oforganizations, individuals to the new plant varietieswhich are created or discovered and developed byand fall under the ownership right of suchorganization or individuals.

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PLANT VARIETY PROTECTION


6. Intellectual property right holder is the owner ofthe intellectual property right or an organization,individual that is assigned the right by the owner.

7. Work is every production created in the literary,artistic and scientific domain, whatever may be themode or form of its expression.

8. Derivative work is a work translated from onelanguage to another, adapted, modified, transformed,compiled, annotated and selected work.

9. Published work, phonogram is a work or aphonogram already released with consent ofcopyright owner, related right owner for the purposeof being disseminated to the public with a reasonableamount of copies.

10. To reproduce means the making of one or morecopies of a work or a phonogram in whatever modeor form, including permanent or provisional backupof the work in electronic form.

11.Broadcasting means the transmission by wire orwireless means, including through the satellite, ofsounds or images and sounds of a work, aperformance, a phonogram or a broadcastingprogram to the public for its reception at a place orat a time select by them.

12. Invention is a technical solution, in form of aproduct or a process, to resolve a specific problem byutilizing laws of nature.

13. Industrial design is appearance of a productexpressed in shapes, lines, dimensions, colors or anycombination thereof.

14. Semiconductor integrated circuit is a product, inits final form or an intermediate form, in which theelements, at least one of which is an active element,and some or all of the interconnections are integrallyformed in or on a piece of semiconductor materialand which is intended to perform an electronicfunction. “Integrated circuit” is synonymous with“IC”, “chip” and “microelectronic circuit”.

15. Layout-design of a semiconductor integratedcircuit (hereinafter referred to as “layout-design”) isa three-dimensional disposition of circuitry elementsand interconnections of such elements in asemiconductor integrated circuit.

16. Trademark is any sign used to distinguish goodsor services of different organizations and individuals.

17. Collective mark is a mark used to distinguish goodsor services of members from those of non-membersof an organization that is the owner of the mark.

18. Certification mark is a mark licensed by its ownerto other organizations, individuals to use for theirgoods or services in order to certify characteristics inrespect of origin, materials, raw materials andmethods of goods production or methods of servicessupply, quality, accuracy, safety or other characteristicsof such goods or services.

19. Associated marks are marks that are registeredby the same owner, identical or similar to each otherand are used for identical or similar or inter-relatedgoods and services.

20. Well-known mark is a mark widely knownthroughout territory of Vietnam.

21. Trade name is a designation of an organizationor individual used in business to distinguish thebusiness entity bearing such designation from otherbusiness entities acting in the same field and area ofbusiness.

The area of business stipulated in this paragraph shallbe the geographical area where business entity hasbusiness partners, clients or reputation.

22. Geographical indication is a sign used to indicatea product originating from a specific area, locality,region or country.

23. Business secret is information obtained fromfinancial, intellectual investment which is undisclosedand susceptible to application in business.

24. Plant variety is a plant grouping within a singlebotanical taxon of the lowest known rank, uniformof morphological, stability in the propagation circle,which can be distinguished by the phenotypeexpressed by a genotype or the combination ofgenotypes and distinguished from other plantgrouping in at least one genetic phenotype.

25. Protection title is a document granted by a Stateauthority to an organization, individual to establishindustrial property rights to inventions, industrial

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designs, layout designs, marks, geographicalindications; and rights to plant varieties.

Article 5Application of laws

1. Where there are intellectual property related civilissues not being stipulated in this Law, the provisionsof Civil Code shall be applied.

2. Where there is any difference between provisionson intellectual property rights of this Law and thoseof other laws, the former shall be applied.

3. Where the provisions of the international treatiesto which the Socialist Republic of Vietnam is partycontravene the provisions of this Law, the former shallbe applied.

PART FOURRIGHTS FOR THE PLANT VARIETY

Chapter XICONDITIONS FOR PROTECTION OF PLANT

VARIETIES

Article 157Organization or Individual who can be protected

the rights for plant variety

1. Organization or Individual who can be protectedrights for plant variety are Organizations, Individualswhich bred or discovered and developed the plantvariety or invested in the task to breed or discoverand develop the plant variety or the person to whowas transferred the rights over the pant varieties.

2. Organizations, Individuals mentioned in theProvision 1 of this Article include Vietnamese andorganizations and individuals of foreign countrieswhich enter into agreements on the protection ofplant variety with the Socialist Republic of Vietnam;and foreign organizations and individuals whichregister a permanent residence in Vietnam or have abusiness or production establishment of plant varietyin Vietnam.

Article 158General conditions for plant varieties over which

rights are protected

The plant variety over which rights are to be protectedis a variety which is bred or discovered and developed,

belonging to the List of species able to be protectedby State issued by the Ministry of Agriculture andRural Development, that variety is new, distinct,uniform, stable and has a proper denomination.

Article 159Novelty of the plant variety

The variety shall be deemed to have novelty if thepropagating or harvested material of the variety hasnot been sold or distributed in other ways for thepurpose of exploitation by or with the consent of theholder of the registration right as referred to in Article164 of this Law in the territory of Vietnam more thanone year before the date of the application form issubmitted; or outside Vietnam more than six yearsbefore the date of application form is submitted fortrees or grape and 4 years for other species.

Article 160Distinctness of the plant variety

1. The variety shall be deemed to have distinctivenessif it is clearly distinguishable in one or more majorcharacteristics from any other variety whose existenceis common knowledge at the time of filing or on thepriority date, as the case may be.

2. The common knowledge varieties as stipulated inparagraph 1 mean the varieties of one of thefollowing cases:

a) Propagating materials or harvested products of suchvariety have been widely used in the market of anycountry in the world at the time of filing of theregistration application;

b) The variety has been protected or registered intothe List of plant species in any country;

c) The plant variety is still the subject of an applicationfor protection or for the List of plant species in anycountry provided that application form was notrefused.

d) The plant variety which has had its descriptionpublished.

Article 161Uniformity of the plant variety

The variety shall be deemed to have uniformity in thepropagation if there is the same expression of the


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relevant phenotype unless the variation is permittedfor certain characteristic in its propagation process.

Article 162Stability of the plant variety

The variety shall be deemed to be stable if the relevantphenotypic characteristics of that variety retain thesame expression as originally described, and remainunchanged after each propagation crop orpropagation cycle, as the case may be.

Article 163Denomination of plant variety

1. The registrant must propose an appropriate namefor the plant variety which name must be the sameas the denomination registered in any country uponfiling of a protection registration application

2. The variety shall be deemed to be properlydenominated if it is distinguishable from all othervarieties of common knowledge in the same speciesor similar species.

3. The denominations of plant varieties shall not beconsidered proper in the following cases:

a) Consisting of numerals only, except where suchnumerals relate to the particularity or theestablishment of such plant variety;

b) Violating social morality;

c) Being liable to misrepresent the feature orcharacteristics of that variety

d) Easy to misunderstand about Breeder’sidentification.

d’) Being identical or confusingly similar to a trademark, trade name or geographical indication alreadyprotected before the date of filing of a registrationapplication for protection of such plant variety;

e) Being identical or similar to the name of harvestedproducts of such varieties.

g) Affecting prior rights of any other organization orindividual.

4. Any organization or individual that offers for saleor brings to the market propagating materials of theplant variety must use the name of the plant varietyas the name in the Protection Certificate even afterthe expiry of the protection period stated.

5. When the name of a plant variety is combinedwith a trademark, a trade name or an indicationsimilar to the name of plant variety already registeredfor sale or offer in the market, such name must beeasily distinctive.

Chapter XIIESTABLISHING THE RIGHTS FOR PLANT VARIETY

Section 1Establishing the rights for a plant variety

Article 164Registration of the rights over plant varieties

1. To obtain protection of the rights over for a newplant variety, organizations and individuals mustsubmit the registration for protection to the Stateadministrative authority for plant variety rights.

2. The organizations and individuals holding the rightto register the protection of plant variety (to bereferred to as registrant) include:

a) Breeder who directly bred or discovered anddeveloped the variety by their expenses by way ofhis/her own efforts and expenses.

b) Organizations or individuals which invested for thebreeder to breed or discover and develop the plantvariety by contract unless otherwise agreed.

c) Organizations and individuals transferred orinherited the right of registration for Plant varietyprotection

3. For the plant variety which is bred or discoveredand developed by way of using the State’s budget orthe finance of the project under the Statemanagement, the rights over such plant variety willbelong to the State. The Government shall makespecific provisions for the registration of the right overthe plant variety as referred to in this Article.


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Article 165Submission of the application form for

rights over a plant variety

1. Vietnamese organizations or individuals or foreignorganizations or individuals with a permanent addressof residence in Vietnam or with a plant varietybusiness or production establishment in Vietnam mayfile an application for registration of rights over a plantvariety (hereinafter referred to as an application forprotection) either directly or through its legalrepresentative agency in Vietnam.

2. Foreign organizations and individuals without apermanent address of residence in Vietnam or nothaving a plant variety business and productionestablishment in Vietnam may file an application forprotection through a lawful representative in Vietnam.

Article 166The principles for submitting the first application

form for plant variety

1. In case more than one independent person submitsan application for protection on different days, theplant variety protection certificate will be given tothe applicant who obtains the earliest validregistration.

2. In case there are many application forms forprotection certificate of the same variety submittedin the same day, the plant variety protection certificatewill be given to the registrant who is agreed by allthe others. If all the registrants could not agree, aplant variety protection certificate will be given bythe State management authority of rights over plantvarieties to the first breeder who bred or discoveredand developed the variety.

Article 167Priority principle for the application form

1. The registrant may request priority rights in casean application form was submitted within 12 monthsfrom the date on which the application form of thesame variety has been submitted in a country whichand the Socialist Republic of Vietnam both enter intoan agreement on plant variety protection. The filingdate of the first application shall not be included inthis time limit.

2. In order to claim priority, the registrant must specifythat claim in the registration application forprotection. Within no more than 3 months fromsubmitting the application for protection, theregistrant must produce copies of documents ascertified by the competent office and samples or otherevidence proving that the variety in both applicationforms is the same and must pay the fees. Theregistrant must be allowed to supply the informationor necessary materials to the State management officeof the rights over plant varieties for examinationaccording to the stipulations in Articles 176 and 178of this Law after 2 years from the date when thepriority ends, or in proper time, depending on thespecies of the plant variety stated in the application,after the first application form is refused or rejected.

3. If the registration application for protection isentitled to the right of priority, the priority date shallbe the date when the first application form wassubmitted.

4. Within the time limit referred to in clause 1 of thisArticle, the filing of another application or thepublication or use of the plant variety being subjectof the first application shall not be regarded as a basisfor refusing the registration application for protectionwhich is entitled to priority.

Article 168Plant variety Protection Certificate and NationalRegistration Book of protected plant varieties

1. The contents of a Protection certificate includethe name of the variety and species; name of theright holder (hereinafter referred to as the CertificateHolder) and Breeder’s name as well as the durationof protection of the right over the plant variety.

2. The state management office of the rights overplant varieties will record the contents of theprotection certificate into the National RegistrationBook for protected plant varieties which is establishedand kept by the State management office of the plantvariety.

Article 169The effectiveness of the plant variety

protection certificate

1. The Plant variety protection certificate will apply inthe whole territory of Vietnam.


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2. The plant variety protection certificate will takeeffect from the date of the grant of rights for a periodof 25 years for trees and grapes; 20 years for otherspecies.

3. The plant variety protection certificate may becancelled or nullified in accordance with Articles 170and 171 of this Law.

Article 170Cancellation and reinstatement of the effectiveness

of plant variety protection certificate

1. The plant variety protection certificate may becancelled in one of the following cases:

a) The uniformity and stability of the protected varietyno longer meets the requirements as at the time ofgranting the certificate;

b) Certificate Holder does not pay the annual fees inaccordance with the regulations;

c) Certificate Holder does not supply the necessarydocuments and propagating materials for maintainingas prescribed.

d) Certificate Holder does not change the name ofthe plant variety as requested by the Statemanagement office of the rights over plant varieties;

2. For the case stipulated in subparagraph a, c and dparagraph 1 of this Article, the State managementoffice of the rights over plant varieties shall issue adecision for cancellation of the plant variety protectioncertificate.

3. For the case stipulated in paragraph 1.b of thisArticle, upon the expiry date of the time limit forpayment of annual fee, the State management officeof the plant variety shall issue a decision oncancellation of the plant variety protection certificatefrom the first date of the next effective year in whichthe annual fees is not paid.

4. For the cases stipulated in clause 1(a) of this Article,any organization and individual shall have the rightto request the State management authority of therights over plant varieties for cancellation theeffectiveness of the plant variety protection certificate.

Based on the results of the application to request thecancellation of the plant variety protection certificateand the opinions of relevant parties, the Statemanagement office of the rights over plant varietiesshall issue a decision to cancel the certificate or torefuse the cancellation of the protection certificate.5. For the cases stipulated in paragraph 1 this Article,the State management office of the rights over plantvarieties shall promulgate the cancellation in aspecialized bulletin and specify the reasons for suchcancellation and at the same time shall serve a noticeto the certificate holder. Within 30 days from the dateof publication, the certificate holder has the right tosubmit a request to the State management office ofthe rights over plant varieties to explain the reasonswhy the plant variety protection certificate is cancelledand must pay the fee in order to reinstate the plantvariety protection certificate. Within 90 days from thedate of filing the request for reinstatement, the varietyprotection owner must solve the reasons for whichthe certificate was cancelled, with regard to the casesstipulated in subparagraphs b, c and d paragraph 1of this Article. The State management office of therights over plant varieties shall then considerreinstating the validity of the protection certificateand making it public in the specialized bulletin.

For the cases stipulated in paragraph 1.a of thisArticle, the effectiveness of the plant varietyprotection certificate shall be reinstated if the holdersucceeds in proving that the plant variety has metthe requirements as to the uniformity and stabilityand has been so certified by the State managementoffice of the rights over plant varieties.

Article 171Nullity of the effectiveness for

plant variety protection certificate

1. The effectiveness of the plant variety protectioncertificate will be nullified in the followingcircumstances:

a) The application form belongs to an applicant whodoes not have the right to file, except where the rightover a plant variety has been assigned to the ownerof the plant variety;

b) The protected variety did not meet the conditionsfor novelty or distinctness at the time of granting theplant variety protection certificate.


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c) The protected variety did not meet the conditionsfor uniformity or stability if the plant variety protectioncertificate is granted on the basis of technical testresults which were supplied by the registrant.

2. Any organization or individual can request the stateadministrative authority of the rights over plantvarieties to nullify the plant variety protectioncertificate during the effectiveness of the plant varietyprotection certificate.

Based on the results of examining the requirementof the nullity and the opinions of relevant parties, theState management office of the rights over plantvarieties shall issue a decision on refusal to annul orshall issue a decision on the nullity the effectivenessof the plant variety protection certificate or to refusesuch nullification.

3. In case of the plant variety protection certificateis nullified, all the transactions arising on the basis ofthe plant variety right are null and void. Such nulland void transactions shall be dealt with in accordancewith the Civil Law.

Article 172Amendment or re-issue of the

plant variety protection certificate

1. The owner of a protection Certificate has the rightto request the State management office of the rightsover plant varieties to change or rectify any errorrelating to the name and address of the holder of theprotection certificate, provided that prescribed feesand charges must be paid. If such errors are madeby the State management office of the rights overplant varieties, this office must rectify such errors andthe holder of the protection certificate shall be liablefor payment of any fees and charges.

2. The holder of a protection certificate may requestthe State management office of the rights over plantvarieties to re-issue such plant variety protectioncertificate it is lost or damaged provided thatprescribed fees and charges must be paid.

Article 173Publishing the decisions related to the


All the decisions related to the grant, re-issue,cancellation, nullity, amendment the variety protection

certificate shall be published by the Statemanagement office of the rights over plant varietiesin a specialized bulletin within 60 days from date whenthe decision is issued.

Section 2Application form and the procedures for processing

registration applications for protection

Article 174Registration applications for protection

1. The application for registering the rights for newplant variety protection must include:

a) A registration form using the prescribed from;

b) Photos and technical questionnaires using theprescribed form;

c) Authorization paper if the application form is filedthrough a representative;

d) The documents which demonstrate theregistration right if the registrant is a person to whomthe right for registering has been transferred;

d’) Documents to prove the priority in case of clamingfor priority.

e) The receipt of the fees.

2. A registration application for protection and anytransaction documents between the registrant andthe State management office of the rights over plantvarieties must be made in Vietnamese, except for thefollowing documents which may be made in anotherlanguage but must be translated into Vietnamese atthe request of the State management office of therights over plant varieties:

a) The power of attorney;

b) Documents evidencing the registration right;

c) Documents evidencing the priority;

d) Other documents

3. The documents proving the right of priority forregistration of the application form for protectioninclude:


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a) The copy of the application form or the firstapplication form certified by the authorizedorganization.

b) The paper of transfer or inheritance of the rightfor priority if the right is transferred from anotherperson.

Article 175Receiving the application form; Submission date

1. The registration application for protection will beaccepted by the State management office of therights over plant varieties with all documentsstipulated in paragraph 1 Article 174 of this Law.

2. The filing date for application form is the date onwhich the application form is received by the Statemanagement office of the rights over plant varieties.

Article 176Examining the validity of the application form.

1. Within 15 days from the filing date, the applicationform will be examined by the State managementoffice of the rights over plant varieties in order todetermine the validity of the application.

2. The registration application for protection shall beregarded as invalid when one of the following casesapplies:

a) The application form does not follow therequirements;

b) The variety in the application form does not belongto a species in the List of protected species;

c) The registrant does not have the right for filingincluding when the registration right belongs toseveral organizations or individuals where one of themdoes not agree upon the registration.

3. The State management office of the rights overplant varieties will carry out the procedures as follows:

a) To announce the refusal of accepting theapplication form for the cases stipulated insubparagraph b) and c) paragraph 2 of this Articlewith the reasons for refusing;

b) To inform to the registrant to correct the mistakesfor the cases stipulated in subparagraph aparagraph 2 of this Article and to inform the time of30 days from receipt of the notice for the correctionto the registrant;

c) To inform the refusal of the application form ifthe registrant does not correct the mistakes or if theregistrant does not have a reasonable appeal againstthe notice referred to in paragraphs 2.b of this Article;

d) To announce acceptance of the application form,requesting the registrant to submit sample of thevariety to the organization in charge of the technicaltest and follow the procedures stipulated in Article178 of this Law if the application form is valid or ifthe registrant has corrected mistakes or gave areasonable response to the notice as stipulated insubparagraph b of this paragraph.

Article 177Publication of the application form for protection

1. If the application form is valid, the Statemanagement office of the rights over plant varietiesshall publish in the specialized bulletin on plantvarieties within 90 days from the date such applicationis accepted.

2. The contents of publication include: No ofapplication form, date of filing, representative agent(if have), name of registrant, name of owner, varietyname, species, the date on which the application formwas accepted as valid.

Article 178Examining the content of the application form for

registering of plant variety protection

1. The State management office of the rights overplant varieties shall examine the contents of theapplication form which is accepted as valid. Theexamination includes:

a) To examine for novelty and the denomination.

b) To examine the results of Technical Test of thevariety.

2. Technical Test means the conduct of growing testsin order to determine the distinctness, uniformity andstability of the variety.


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The technical test shall be carried out by thecompetent office or organizations or individuals whohave enough capacity for conducting the technicaltest following the stipulations of the Ministry ofAgriculture and Rural Development.

The state administrative authority of the rights overplant varieties may use the results of the previoustechnical test.

3. The time for examining of the test results shall be90 days from the date of receiving the technical testresults.

Article 179Modify and supplement the application form

1. The registrant has the following rights before thestate administrative authority of the rights over plantvarieties decides to grant or not to grant the plantvariety protection certificate or decision of the grant:

a) To modify or amend the application form withoutchanging the nature of the registration applicationfor protection;

b) To request acknowledging the changes of nameand address of the registrant.

c) To request acknowledging the changes of theregistrant due to transfer the application form undera contract or as a result of inheritance or bequest.

2. The person who requests any of the proceduresstipulate at paragraph 1 of this Article must be submitfees and annual fee.

Article 180Withdrawing the application form for registration

1. Before the state administrative authority of therights over plant varieties decides to grant or refuseto grant the protection certificate, the registrant canwithdraw the application form for protection. Arequest for such withdrawal must be made in writing.

2. From the time which the registrant requests towithdraw the application form for protection, all thenext procedures related to the application will beterminated; the fees which have been submitted forthe procedures that have not yet been conductedwill be refunded following the request from theregistrant.

Article 181Opinion of the third party for granting the plant

variety protection certificate

From the date of publication of the registrationapplication for protection of plant variety in theprofessional bulletin until the time a decision forgranting a plant variety protection certificate is made,any third party can send an opinion as about the issueof a plant variety protection certificate to the Statemanagement office of the rights over plant varieties.The opinion must be made in writing accompaniedby arguments and evidence to support the opinion.

Article 182Refusal to grant the plant variety


An application form for protection shall be refusedfor the issue of a plant variety protection certificatein case the variety does not meet any conditionsstipulated in Articles 176 and 178 of this Law. In caseof refusal, the State management office of the rightsover plant varieties shall implement the followprocedures:

1. Announce the proposal to refuse the grant of aProtection Certificate stating the reasons and thedeadline for the registrant to amend the shortcomingsor appeal against the announcement.

2. Announce the refusal of the grant of protectioncertificate if the registrant has not amended theshortcomings or have not made an appeal againstthe announcement stipulated in paragraph 1 of thisArticle.

3. Implement the procedures stipulated in Article 183of this Law if the registrant has amended theshortcomings or gives a valid opinion to appeal againstthe proposal to grant stipulated in paragraph 1 ofthis Article.

Article 183Granting plant variety the protection certificate

If a registration application for protection is notrefused as set out in Article 182 of this Law and if theregistrant pays the fee, the State management officeof the rights over plant varieties shall issue the decisionfor granting the plant variety protection certificateand record this into the National Registration Bookof Protected Plant Varieties.


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2. To grant the protection certificate to the applicant.

Article 184To complain about the issue or refusal to issue plant

variety protection certificates

1. The registrant and any other third party have theright to complain about a decision to grant or therefusal to grant a plant variety protection certificate.

3. Any complaint about decisions to grant or refuseto grant the plant variety protection certificate willbe carried out according to the Law on Complaintsand Denunciations.

Chapter XIVCONTENTS AND LIMITATIONS OFRIGHTS FOR THE PLANT VARIETY

Section 1The contents of rights over plant variety

Article 185Rights of the Breeder

The Breeder of a plant variety has following rights:

1. Name of the Breeder will be recorded on the plantvariety protection certification and in the NationalRegister Book for protected plant varieties and in allthe published documents relating to the plant variety;

2. To get compensation as stipulated in paragraph1(a) Article 191 of this Law;

Article 186Rights of the Protection Certificate Holder

1. The Holder of a protection certificate has the rightsto use or permit other persons to use the followingrights over the propagating materials of the protectedplant variety:

a. Production or multiplication;

b. Processing for the purpose of propagation;c. Offering for sale;

d. Selling or other marketing;

dd. Exporting;

e. Importing;

g. Stocking for any of the purposes listed in points a,b, c, d, dd and e of this clause.

To prohibit other from using the plant variety inaccordance with Article 188 of this Law.

To pass by inheritance or bequest or transfer the rightsover the plant variety in accordance with Chapter XVof this Law.

Article 187Extension of the rights of the protection

certificate holder

The rights of a protection certificate holder shall beextended to the following plant varieties:

1. Plant varieties that originate from the protectedplant variety except where such protected plantvarieties themselves originate from another protectedplant variety;

A plant variety is regarded as originating from aprotected plant variety if such plant variety has stillretaining the expression of the essential characteristicsthat result from the genotype or combination ofgenotypes of the protected variety except for thedifferences resulting from actions on the protectedvariety.

2. Plant varieties which are not clearly different fromthe protected plant variety;

3. Plant varieties, the production of which requiresthe repeated use of protected plant varieties.Article 188 Acts which infringe the rights over plantvarieties.

The following acts shall be considered asinfringements upon to the rights of the protectioncertificate holders:

1. Exploiting or using the rights of the protectioncertificate holder without his permission.

2. Using a denomination of the variety which isidentical or similar to a protected denomination ofthe plant variety of the same or other similar species.


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3. Using the protected plant variety without paymentof the compensation amount provided for inArticle 189 of this Law.

Article 189Temporary rights over for the plant varieties

1. The temporary rights over a plant variety are therights of the registrant for protection of the plantvariety which arise from the date of publication ofthe registration application for protection until thedate of grant of a plant variety protection certificate.The registrant will not have the temporary right incase the variety protection certificate is not granted.

2. If the registrant is aware of the fact that anotherperson has been exploiting the plant variety forcommercial purposes, the registrant has the right toinform that person in writing of the existence of aregistration application for protection of the plantvariety lodged by the registrant and must specify thedate of submission, the date on which the registrationapplication for protection has been published in orderfor such another person to terminate the exploitationor continue using it.

3. The user of the variety must pay an amountequivalent to the value of transfer of the right to usesuch variety within an appropriate scope and usingtime in case the announcement has been informedas stipulated in Paragraph 2 of this Article and theuser continues using.

Section 2Limitations of rights over plant varieties

Article 190Limitations to the right of a plant variety protection

certificate holder

1. The following acts are not considered asinfringements of the rights over a protected plantvariety:

a. Using the variety privately for non-commercialpurposes;

b. Using the variety for breeding and for scientificresearch purpose;

c. Using the variety to create new plant varietiesdistinctive from the protected plant varieties;

d. Production households may use the harvestedproducts of the protected variety for propagation andcultivation in the next season in their own field.

2. Rights over a plant variety shall not be extended tothe acts related to any materials of the protectedvariety which have been sold or otherwise taken outof the Vietnamese or overseas market by the breederor his or her nominee, except for the following acts:

a) Relate to the continuous propagation of such aplant variety;

b) Relate to the export of propagating materials ofsuch plant variety to a country where the genus orspecies are not protected except where such materialsare exported for consumption purpose only;

Article 191Obligations of the Holders and Breeder

1. The Holder of the protection certificate has thefollowing obligations:

a) To pay compensation to the breeder as agreedbetween them, in the absence of such agreement,the compensation must be paid following thestipulations of the Law.

b) To pay fees for the plant variety protectioncertificate according to the stipulation.

c) To preserve the protected variety and to supplypropagating material of the protected variety to thestate administrative authority of the rights over plantvarieties and to maintain the stability of the protectedvariety as the stipulations.

2. The Breeder of the variety has the obligation tohelp the protection certificate holder to maintain thepropagating material of protected variety.

Chapter XVTRANSFER OF THE RIGHTS TO A PLANT VARIETY

Article 192Transfer the rights to use of the plant variety

1. Licensing for use of a plant variety means thepermission of the Holder of the plant variety given toanother person to conduct one or some acts of hisright to use the plant variety.


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2. The licensing for use of a plant variety shall beconsented by all holders in case the right falls underco-ownership.

3. The licensing for use of a plant variety shall beconducted in the form of a written contract.

A licensing contract for use of a plant variety shallnot have such provisions that unreasonably restrictsthe right of the licensee, particularly those provisionsneither deriving from, nor aimed at protecting of, therights of the licensor to the plant variety.

Article 193The rights of the parties in licensing contract

1. The licensor shall have the rights to permit or notpermit the licensee to assign the license for use to athird party;

2. The licensee shall have the following rights:

a) To assign the license for use to a third party if it isagreed by the licensor;

b) To request to the licensor to carry out necessarymeasures against any infringements by a third partycausing damage to the licensee.

c) To carry out necessary measures to prevent a thirdparty infringements if within a time limit of 3 monthsfrom the date of the request, the licensor fails acts asrequested the in accordance with sub paragraph bof this clause.

Article 194Assignment of the rights for plant variety

1. To assign the rights for a plant variety means thatthe holder of the plant variety transfers all the rightsof such plant variety to the assignee. The assigneeshall become the owner of the plant variety ProtectionCertificate from the date for registration of theassignment contract with the state administrativeauthority of the rights over plant varieties inaccordance with the prescribed procedures.

2. Where the right of a plant variety is under co-ownership, the assignment of such rights must beconsented by all owners.

3. The assignment of the ownership rights to a plantvariety must be made in a written contract.

Article 195Bases and conditions for compulsory licensing for

use of the plant variety

1. In the following cases, the right to use a plantvariety shall be licensed to another organization orindividuals under a decision of the state competentauthority as referred to in Article 196.1 of this Lawwithout having to obtain permission from theprotection certificate holder or his nominee (to bereferred to as the holder of the exclusive right to usethe pant variety):

a) The use of such plant variety is for the publicinterest, for non-commercial purpose, to satisfy theneeds of national defense, national security, diseaseprevention, treatment and nutrition for people or tomeet other social urgent needs;

b) The person having a demand and capacity to usethe plant variety fails to reach an agreement with theholder of the exclusive right to use the plant varietyupon entering into a licensing contract although bestefforts have been made for a reasonable period oftime to negotiate the price rate and other commercialconditions.

c) The holder of the exclusive right to use the plantvariety is regarded as conducting an act of constraintof competition under the competition legislation.

2. The holder of the exclusive right to use the plantvariety has the right to terminate the right has theright to request for termination of such right of usewhen the bases of compulsory licensing provided forin clause 1 of this Article cease to exist and are unlikelyto recur, provided that such termination shall notprejudicial to the licensee.

3. The right to use a plant variety shall be transferredunder a decision of a state competent authority incompliance with the following conditions:

a) Such right of use is non-exclusive;

b) Such right of use shall only be limited to such ascope and period sufficient to attain the objectivesof the compulsory licensing, and predominantly for


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the supply of the domestic market, except for thecases referred to in clause 1(c) of this Article;

c) The licensee shall not assign such right of use toanother person, except with the assignment of his orher business premise, or not grant a sub-license toothers;

d) The licensee must pay an adequate compensationto the holder of exclusive right to use the plant varietytaking into account the economic value of such rightof use in each specific case, in compliance with theremuneration frame provided for by the Government;

4. The Government shall make specific provisions forthe cases of compulsory licensing of the right to useplant varieties and the compensation frame asreferred to in Article 3(d) of this Article.

Article 196Power and procedures for licensing the right to use

plant varieties under compulsory decisions

1. The Ministry of Agriculture and Rural Developmentshall issue decisions on licensing the right to use aplant variety in the fields under the scope of its Stateadministration on the basis of a relevant request inthe cases set out in Article 195.1 of this Law.

Ministries, ministerial-level agencies shall issuedecisions to license the right to use plant varieties inthe fields under the scope of its State administrationon the basis of consultation with the Ministry ofAgriculture and Rural Development in the casesreferred to in Article 195.1 of this Law.

2. A licensing decision must fix the scope andconditions of such use in accordance with Article195.3 of this Law.

3. The State competent authority that makes adecision on licensing the right to use a plant varietymust notify this decision to the holder of the exclusiveright to use such plant variety.

4. A decision on licensing the right to use a plantvariety or refusal to license the right to use a plantvariety may be complained about or subject to alawsuit in accordance with the law.

5. The Government shall make specific provisions forprocedures for licensing of the right to use a plantvariety as referred to in this Article.

Article 197Rights of Protection Certificate holders in case of

compulsory licensing

The protection certificate holder being subject ofcompulsorily licensing of the right to use a plant varietyshall have the following rights:

1. To receive an adequate compensationcorresponding to the economic value of such right ofuse or equivalent to the price of contractual licensingof such right with similar scope and term;

2. To request the state administrative authority of therights over plant varieties to amend, cancel or nullifiedthe validity of the compulsory license when theconditions resulting in such compulsory licensing nolonger exist or if such amendment, cancellation ornullity does not cause damages to the compulsorylicensee.

PART FIVEENFORCEMENT OF INTELLECTUAL PROPERTY

RIGHTS

Chapter XVIGENERAL PROVISIONS ON ENFORCEMENT OF

INTELLECTUAL PROPERTY RIGHTS

Article 198Right to protection by oneself

1. Intellectual property right holders shall have theright to apply the following measures to protect theirintellectual property rights:

a) Taking technological measures to preventinfringement of intellectual property rights;

b) Requesting organizations, individuals that havecommitted acts of infringement of intellectualproperty rights to terminate the infringing acts,apologize, publicly rectify and compensate damages;

c) Requesting the competent state agencies to handleacts of infringement of intellectual property rights inaccordance with provisions of this Law and otherrelated laws and regulations;


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d) Initiating a lawsuit at a competent court or anarbitrator to protect their legitimate rights andinterests;

2. Organizations and individuals that suffer fromdamage caused by acts of infringement of intellectualproperty rights or discover acts of infringement ofintellectual property rights that cause damage toconsumers or the society shall have the right torequest State competent agencies to handle such actsof infringement in accordance with the provisions ofthis Law and other related laws and regulations.

3. Organizations and individuals that suffer fromdamage or are likely to suffer from damage causedby acts of unfair competition shall have the right torequest State competent agencies to impose civilremedies provided for in Article 202 of this Law andadministrative remedies provided for in the laws oncompetition.

Article 199Remedies against acts of infringement of

intellectual property rights

1. Organizations and individuals that have committedacts of infringement of other’s intellectual propertyrights are liable to civil, administrative or criminalremedies, depending on nature and extent of suchinfringement.

2. In appropriate cases, State competent agenciesshall have the right to apply provisional measures,intellectual-property-related control measures withregard to imports and exports and preventivemeasures and shall ensure that administrativepenalties shall be imposed as provided for in this Lawand other related laws and regulations.

Article 200Authorities in handling the infringement of

intellectual property rights

1. Courts, inspectorate, market managementagencies, custom offices, police agencies and thePeople’s Committees of all levels, within its duties andauthorities, are entitled to handle acts of infringementof intellectual property rights.

2. The application of civil remedies and criminalremedies shall fall within the authorities of the courts.

In appropriate cases, the courts are entitled to applyprovisional measures in accordance with the laws andregulations.

3. The application of administrative remedies shallfall within the authorities of inspectorate, policeagencies, market management agencies, customoffices and the People’s Committee of all levels. Inappropriate cases, the above-mentioned agencies areentitled to apply preventive measures and ensure thatadministrative penalties shall be imposed inaccordance with the laws and regulations.

4. The application of intellectual property bordercontrol measures with regard to imports and exportsshall fall within the authorities of custom offices.

Article 201Inspection, assessment on intellectual property

1. Inspection and assessment on intellectual propertymeans the competent organizations or individuals usetheir knowledge and expertise in intellectual propertyto make assessment, conclusion on matters relatedto intellectual property right infringement cases.

2. State competent agencies shall have the right tocall for inspection, assessment on intellectual propertyin order to handle those cases accepted by theseagencies.

3. Intellectual property right holders and otherrelated organizations or individuals shall have the rightto request for inspection, assessment on intellectualproperty in order to protect their legitimate rights andinterests.

4. The government shall make specific provisions oninspection and assessment on intellectual property.

Chapter XVIIDEALING WITH INFRINGEMENTS OF INTELLECTUAL

PROPERTY RIGHTS THROUGH CIVIL REMEDIES

Article 202Civil remedies

The court shall take the following civil remedies tohandle organizations and individuals that havecommitted acts of infringement of intellectualproperty rights:


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1. Compelling termination of the infringement ofintellectual property rights;

2. Compelling public rectification and apology;

3. Compelling the performance of civil obligations;

4. Compelling compensation for damages;

5. Compelling destruction, distribution or use for non-commercial purpose in respect of goods, materialsand implements the predominant use of which hasbeen in the creation or trading of intellectual propertyright infringing goods, provided that such distributionand use does not affect the exploitation of rights bythe intellectual property rights holder.

Article 203Rights and burden of proof of the litigants

1. The plaintiff and defendant in a lawsuit againstinfringement of intellectual property rights shall havethe rights and burden of proof provided for in Article79 of the Civil Procedures Code and this Article.

2. The plaintiff shall prove that he or she is theintellectual property right holder with one of thefollowing evidences:

a) A valid copy of the Copyright RegistrationCertificate, Related Right Registration Certificate,Protection Title, or an extract from the NationalRegisters of Copyrights and Related Rights, theNational Registers of Industrial Designs, layout-designsand National Registers of Protected Plant Varieties;

b) Necessary evidence proving basis theestablishment of copyrights, related rights in case ofabsence of a copyright registration certificate, relatedright registration certificate; necessary evidenceproving the rights to business secrets, trade namesor well-known marks;

c) Copies of licensing contracts for using intellectualproperty subject matters in case the right to use islicensed under a contract.

3. The plaintiff shall produce evidence of theinfringement of intellectual property rights or acts ofunfair competition.

4. In a lawsuit against an infringement of the rightto a patented invention, which is a production process,the defendant shall prove that his or her productsare made by a process other than the protectedprocess:

a) The product made by the protected process is new;

b) The product made by the protected process is notnew, but the owner of the protected process believesthat the product of the defendant is made by theprotected process and failed identify the process usedby the defendant despite that reasonable measureshave been taken.

5. In case a party to a lawsuit against an infringementof intellectual property rights has proven that evidencerelevant to substantiation of his or her claims lies inthe control of the other party and thereforeinaccessible, the former shall have the right to requestthe court to compel the later to produce suchevidence.

6. In case of a claim for damages, the plaintiff mustprove his or her actual damages and specify the basisfor his or her claim in accordance with Article 205 ofthis Law.

Article 204Principles of determination of damages caused by

the infringement of intellectual property rights

1. Damages caused by an infringement comprise:

a) Physical damages comprise loss in property,decrease in income and profits, losses in businessopportunities, reasonable expenses for prevention andrestoration from such damages, reasonable attorneyfees and other tangible losses;

b) Spiritual damages comprise loss to honor, dignity,prestige, reputation and other spiritual losses causedto the authors of literary, artistic and scientific works;to performers, authors of inventions, industrialdesigns, lay out designs; and breeders.

2. The level of damage shall be determined on thebasis of the actual losses suffered by the intellectualproperty right holders due to the infringement of hisor her intellectual property rights.


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Article 205Bases for determination of damages caused by the

infringement of intellectual property rights

1. In case the plaintiff succeeds in proving that aninfringement of intellectual property rights has causedphysical damages to him or her, he or she shall havethe right to request the court to determine the rateof compensation on one of the following bases:

a) The total physical damage determined in anamount of money plus the profits gained by thedependant as a result of infringement if reducedprofits of the plaintiff have not yet been included inthe total physical damage;

b) The value of the transfer of the right to use theintellectual property subject matter with thepresumption that the defendant has been transferredby the plaintiff with the right to use that intellectualproperty subject matter under an agreement for usingsuch intellectual property subject matter to the extentequivalent to the act of infringement committed;

c) Where it is impossible to determine the rate ofcompensation in accordance with subparagraphs a)and b) of this paragraph, that rate shall be fixed bythe court depending on the loss level but notexceeding VND 500 million.

2. If the plaintiff succeeds in proving that theinfringement of intellectual property rights has causedspiritual damage to him or her, he or she shall havethe right to request the court to determine the rateof compensation ranging from VND 5 million to VND50 million, depending on the level of damage.

3. In addition to the damages referred to in clauses1 and 2 of this Article, an IPR holder may request thecourt to compel the infringer to pay reasonable costsof hiring attorneys.

Article 206Right to request the court toapply provisional measures

1. Upon or after initiation of a lawsuit, an intellectualproperty right holder shall have the right to requestthe court to apply provisional measures in thefollowing cases:

a) There is a threat of irreparable damage to theintellectual property right holder;

b) There is a threat of dispersal or destruction ofgoods suspected of infringing upon intellectualproperty rights and relevant evidence if they are notprotected in time.

2. The court shall decide to apply provisionalmeasures at the request of the IPR holder as set outin clause 1 of this Article before listening to theopinion of the party liable for such provisionalmeasure.

Article 207Provisional measures

1. The following provisional measures are shallapplicable to goods suspected of infringing uponintellectual property rights or to the materials, rawmaterials or implements for producing or trading suchgoods:

a. Seizure;

b. Attachment;

c. Sealing, prohibition of changing status or displacing;

d. Prohibition of transferring ownership;

2. Other provisional measures shall be applied inaccordance with the Civil Procedure Code.

Article 208Obligations of the person who requests for the

application of provisional measures

1. A person who requests for the application ofprovisional measures is obliged to prove his or herright to request as provided for in paragraph 2 Article206 of this Law, including the production of materialsand evidence as provided for in paragraph 2 Article203 of this Law.

2. A person who requests for the application ofprovisional measures is obliged to pay compensationfor the damages to such provisional measure debtorin case such person is found not to infringe the IPRs.To secure the performance of this obligation, theperson who requests for the application of provisional


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measures must deposit a sum of security in one ofthe following forms:

a) Depositing an amount of money equal to 20% ofthe value of the goods that is subject to the applicationof provisional measures, or at least 20 million VND ifit is impossible to evaluate those goods;

b) Submitting a guarantee document issued by abank or other credit organizations

Article 209Termination of the application of

provisional measures

1. The court shall decide to terminate the applicationof a provisional measure in any of the cases referredto in paragraph 1 Article 122 of the Civil ProcedureCode or in case that the provisional measure debtorsucceeds in proving that the application of suchprovisional measure is unreasonable.

2. In case of termination of the application of aprovisional measure, the court shall considerreimbursement to the requesting person of thedeposited amount referred to in paragraph 2 Article208 of this Law. If the request for the application ofprovisional measure is unreasonable, causing damageto the provisional measure debtor, the court shallcompel the requesting person to compensate thedamage.

Article 210Authorities and procedures forapplying provisional measures

The authorities and procedures for applyingprovisional measures shall comply with the provisionsof Chapter VIII of Part One of the Civil ProcedureCode.

Chapter XVIIDEALING WITH INFRINGEMENTS OF INTELLECTUAL

PROPERTY RIGHTS THROUGH ADMINISTRATIVEAND CRIMINAL REMEDIES; CONTROL OF

INTELLECTUAL-PROPERTY-RELATEDIMPORTS AND EXPORTS

Section 1

Dealing with infringements of intellectual propertyrights through administrative and criminal remedies.

Article 211Acts of IPR infringements liable for

administrative remedies

1. The following acts of IPR infringements shall besubject to the administrative remedies:

a) Committing an act of infringement of intellectualproperty rights, which causes loss to consumers orthe society;

b) Not terminating an act of infringement ofintellectual property rights, even if a written noticehas been served by the intellectual property rightholder;

c) Producing, importing, transporting, and tradingin intellectual property counterfeit goods referred toin Article 213 of this Law or assigning others to doso;

d) Producing, importing and trading in articlesbearing a mark or a geographical indication that isidentical with or confusingly similar to a protectedmark or a protected geographical indication orassigning others to do so;

2. The Government shall make specific provisions foracts of IPR infringements to be liable for administrativeremedies, form and level of remedies and proceduresfor imposing such administrative remedies.

3. Organizations and individuals that have committedacts of unfair competition shall be liable to theadministrative remedies provided for in thecompetition legislation.

Article 212Acts of IPR infringements liable for

criminal remedies

Individuals who have committed acts of infringementof intellectual property rights having factors thatconstitute a crime shall be liable to the criminalliabilities in accordance with the criminal laws andregulations.

Article 213Intellectual property counterfeit goods

1. Intellectual property counterfeit goods referred toin this Law include counterfeit mark goods or


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counterfeit geographical indication goods (hereinafterreferred to as counterfeit mark goods) referred to inparagraph 2 of this Article and pirated goods referredto in paragraph 3 of this Article.

2. Counterfeit mark goods are goods or theirpackaging bearing a mark or a sign which is identicalwith or substantially indistinguishable from a markor geographical indication which is protected for suchgoods without consent of the owner of such mark orthe management organization of such geographicalindication respectively.

3. Pirated goods are copies made without theconsent of the copyrights holder or the related rightsholder.

Article 214Administrative penalties and remedies

1. Organizations and individuals that have committedacts of IPR infringement referred to in Article 211.1of this Law shall be compelled to terminate theinfringement and subject to one of the following mainremedies:

a) Warning;

b) Monetary fine.

2. Depending on nature and level of the infringement,the IPR infringing organizations and individuals areliable to the following complementary remedies:

a) Confiscation of intellectual property counterfeitgoods, materials, raw materials and implementsmainly used for manufacturing or trading suchintellectual property counterfeit goods;

b) Suspension of relevant business activities for adefinite term.

3. In addition to the remedies referred to inparagraphs 1 and 2 of this Article, organizations andindividuals that have committed IPR infringing actsare liable to the following restoration remedies:

a) Compelling destruction, distribution or use of theintellectual property counterfeit goods for non-commercial purposes and materials, raw materials andimplements mainly used for manufacturing or trading

such intellectual property counterfeit goods providedthat such distribution and use does not affect theexploitation of rights by intellectual property rightholder;

b) Compelling delivery of the transiting goods outof the territory of Vietnam or re-export of theintellectual property counterfeit goods, implementsand materials that are imported mainly formanufacturing or trading such intellectual propertycounterfeit goods, after having removed infringingelements.

4. The monetary fine rates referred to insubparagraph b of paragraph 1 of this Article shallbe at least equal to the value of the discoveredinfringing goods but must not exceed five times ofthat value.

The Government shall make detailed provisions forthe method of determination of the value of infringinggoods.

Article 215Application of preventative measures

1. In the following cases, organizations andindividuals shall have the right to request thecompetent agency to apply administrative remediesand ensure that administrative penalties shall beimposed in accordance with clause 2 of this Article:

a) Acts of infringement of intellectual property rightsmay cause serious damage to consumers or thesociety;

b) There is a threat of the infringing means beingdispersed or the infringer evading his or her liabilities;c) In order to guarantee the implementation ofadministrative remedies.

2. Administrative preventative measures applicableunder administrative procedures to the infringementof intellectual property rights comprise the followings:

a) Temporary hold of related individuals;

b) Temporary detention of the goods, means andimplements used for such infringement;

c) Search of related individuals;


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d) Search of the place where infringing goods, meansand implements are stored;

d’) Other administrative preventative measures inaccordance with the laws and regulations.

Section 2Control of IP-related imports and exports

Article 216Border control measures of IP-related

imports and exports

1. Border control measures of IP-related imports andexports comprise the followings:

a) Suspension of customs procedures for suspectedintellectual property right infringing goods.

b) Supervision to detect goods containing signs ofinfringement of intellectual property rights.

2. Suspension of customs procedures for suspectedintellectual property right infringing goods is ameasure taken at the request of the intellectualproperty right holder for the purpose of collectinginformation and evidence about the lots of goodswhich serves as the basis for the intellectual propertyright holder to exercise the right to request for thehandling of the infringement and to request for theapplication of provisional measures or preventivemeasures, and to ensure that an administrativepenalty is to be imposed.

3. Examination and supervision to detect goodscontaining signs of infringement of intellectualproperty rights is a measure taken at the request ofthe intellectual property right holder for the purposeof collecting information in order to exercise the rightto request for the suspension of customs procedures.

4. During the course of application of measuresreferred to in paragraphs 2 or 3 of this Article, if anygoods detected to be intellectual property counterfeitgoods in accordance with Article 213 of this Law, thecustoms offices shall have the right and duty to imposeadministrative remedies referred to in Article 214 andArticle 215 of this Law.

Article 217Obligations of person who requests for the

application of border control measures of IP-relatedimports and exports

1. A person who requests for the application ofborder control measure in respect of IP-related importsand exports shall have the following obligations:

a. Proving that he or she is the intellectual propertyright holder by producing the materials and evidencereferred to in paragraph 2 Article 203 of this Law.

b. Providing information sufficient to identify thesuspected intellectual property right infringing goodsor to discover infringing goods.

c. Lodging an application with the customs officeand pay fees and charges prescribed by the laws andregulations.

d. Payment of damages and other incurred expensesto the persons being subject to such measure in casethe goods subject to that control measure are foundnot to infringe upon IPRS.

2. To secure the performance of the obligations setout in clause 1(d) of this Article, a person requestingfor the application of measure of suspension ofcustoms procedures must deposit a sum of securityin one of the following methods:

a) Depositing an amount of money equal to 20% ofthe value of the lots of goods that is subject to thesuspension of customs procedures; or at least VND20 million if it is impossible to evaluate such lots ofgoods;

b) Submitting a guarantee document issued by abank or other credit organizations.

Article 218Procedures for the application of

suspension of customs procedures

1. When a person who requests for the suspensionof customs procedures has properly performed his orher obligations provided for in Article 217 of this Law,the customs office shall issue the decision onsuspension of customs procedures with regard torelevant lots of goods.


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2. The term of suspension of customs proceduresshall be 10 working days from the date of issuing thedecision on the suspension of customs procedures.This term may be prolonged up to 20 working days ifthe person who requests for the suspension ofcustoms procedures has due reasons and havingdeposited an additional amount of money referredto in paragraph 2 of Article 217 of this Law.

3. At the expiration of the term provided for inparagraph 2 of this Article if the person who requestsfor the suspension of customs procedures fails toinitiate a civil lawsuit and the customs office doesnot accept the case to handle the importer of thelots of goods under administrative procedures, thecustoms office shall:

a) Continue the completion of customs proceduresfor such lots of goods;

b) Compel the person who requests for thesuspension of customs procedures to compensate allthe damages incurred by the owner of the lots ofgoods due to unreasonable request for the suspensionof customs procedures, and to pay expenses forstorage and preservation of goods as well as othercosts incurred by the customs office and other relatedorganizations and individuals in accordance with thelaws and regulations on customs;

c) Reimburse the person who requests for thesuspension of customs procedures the rest of thedeposited guarantee amount after having performedobligations and paid all the costs referred to in sub-paragraph b) of this paragraph.

Article 219Examination and supervision to detect goods

containing signs of IPR infringement

When an IPR holder requests for examination andsupervision to detect a lot of goods containing signsof IP infringement and when such lot of goods isdetected, the customs office shall immediately notifythe person who requests for such examination andsupervision. Within three working days from the dateof such notification, if the person that made therequest fails to make a request for suspension ofcustoms procedures with regard to the detected lotof goods and the customs office does not decide tohandle the importer of the lots of goods withadministrative remedies in accordance with Articles


214 and 215 of this Law, the customs office shallcontinue the completion of customs procedures forsuch lots of goods.

PART SIXPROVISIONS OF IMPLEMENTATION

Article 220Transitional provisions

1. Any copyright or related right protected under thelegal documents applicable before the effective dateof this Law shall continue to be protected under thisLaw if it remains in term of protection on that date.

2. Any applications for registration of copyright,related rights, inventions, utility solutions, industrialdesigns, trademarks, appellations of origin, layout-designs, new plant varieties which have been filedwith competent authorities before the effective dateof this Law shall be handled in accordance with legalinstruments at the time of the filing of the application.

3. All rights and obligations conferred by ProtectionTitles granted under the provisions applicable beforethe effective date of this Law and procedures formaintenance, renewal, correction, license,assignment, resolution of disputes concerning theseprotection titles shall be subject to this Law, exceptfor those grounds for invalidation of a Protection Titlewhich shall only be subject to the provisions of legaldocuments applicable at the time of its grant.

4. Trade secrets and trade names which have beenexisting and protected under Decree 54/2000/ND-CPdated October 3, 2000 of the Government on theprotection of industrial property rights with regardto trade secrets, geographical indications, tradenames and the protection of rights against industrialproperty related unfair competition shall be continuedto be protected under this Law.

5. From the effective date of this Law, geographicalindications, including those protected under theDecree referred in paragraph 4 of this Article, shallonly be protected if they are registered with the stateadministration authority of industrial property.

Article 221Effectiveness

This Law shall enter into force as from 1 July 2006.

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Article 222Guidance of implementation

The Government and the Supreme People’s Courtshall make detailed provisions and provide guidelinesfor the implementation of this Law.

This Law has been ratified by the Legislature XI ofthe National Assembly of the Socialist Republic ofVietnam in its 8th session on November 29, 2005.

THE CHAIRMAN OF THE NATIONAL ASSEMBLY
