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PART IV
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INTELLECTUAL PROPERTY LAW AND TECHNOLOGY TRANSFER
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1.IP Rights Establishment for
typical subjects |
A trademark or patent is protected in Vietnam when the state competent body issues a registration certificate following procedures as stipulated in the IP Law or recognition of international registration pursuant to an international treaty of which Vietnam is a party.
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a. Trademark Registration
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A trademark or a mark in Vietnam means any sign used to distinguish goods or services of different organizations or individuals. They may be in the form of words, images, or any combination presented in one or more colors. The principle of a “first to file” trademark filing system is applied in the IP right of a mark in Vietnam, different from a “first to use” trademark filing system. Similar to other regional countries (e.g. Laos, Indonesia, Thailand, etc.), Vietnam adopts the International Classification of Goods and Services for the Purposes of the Registration of Marks under the Nice Agreement and approves the application of class-mark, such as a collective mark, a certification mark, an integrated mark and a well-known mark. Under the IP Law, a certification mark means a mark which is authorized by its owner to be used by another organization/individual on the latter's goods/services to certify the origin, raw materials, materials, mode of manufacture of goods or manner of provision of services, and the quality or other characteristic of goods or services bearing such mark. A mark is considered as a well-known mark (a mark widely known by consumers throughout the territory of Vietnam) if it satisfies a number of criteria stipulated in the IP Law, its rights shall be established and protected without requiring the completion of registration procedures. An enterprise may file applications for registration of a mark with the NOIP either directly or through their lawful representatives. The lawful representatives may be the legal representative or an authorized representative (including an IP agent); or the head of the representative office or branch in Vietnam (if the applicant is a foreign organization). Foreign individuals not permanently residing in Vietnam and foreign organizations that do not have any legal representation or do not carry out production or business establishments in Vietnam may file applications for registration of establishment of IPRs only through a lawful representative in Vietnam. The NOIP will process the applications in accordance with the following order: receipt of application; formal examination of form of application; publication of industrial property registration applications, substantive examination of industrial property registration applications; issuance (or refusal to issue) of a protection title; registration and announcement of the decision granting the protection title. The total time limit for registration of a mark is 9 months commencing from the filling date, of which formal examination of applications shall be carried out within 1 month, publication of valid applications shall be carried out within 2 months and substantive examination of applications shall be carried out within 6 months. However, such time limit may be extended as of over workload and lack of personnel of the Intellectual Property Bureau. A certificate of registration of a mark will be valid within 10 years from the filing date and may be renewable for many consecutive terms, each of 10 years.
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b. Patent
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A patent means a technical solution in the form of a product or process, which is intended to solve a problem by application of natural rules. A patent may be eligible for protection in the form of issuance of an invention patent or a utility solution patent. An invention patent shall be issued, exclusive of the completion of the procedure under other provisions, if the invention satisfies the following conditions: (a) it is novel; (b) it is of an inventive nature; and (c) it is susceptible of industrial application. A utility solution patent shall be issued, exclusive of the completion of the procedure under other provisions, if the invention is not common knowledge and satisfies the following conditions: (a) it is novel; and (b) it is susceptible of industrial application. Similar to mark registration, organizations and individuals may file applications for registration of mark with the NOIP either directly or through their lawful representatives in Vietnam. The NOIP will process the applications in accordance with the following order: receipt of application; formal examination of form of application; publication of industrial property registration applications, substantive examination of industrial property registration applications; issuance or refusal to issue of a protection title; registration and announcement of the decision granting the protection title. The time limit for formal examination of applications may be carried out within 1 month from the filling date. The time limit for publication of valid applications shall be in the 19th month as from the filing date or the priority date, as applicable, or at an earlier time at the request of the applicant. The time for substantive examination of applications shall be 12 months from the date of its publication if a request for substantive examination is filed before the date of publication of the application, or from the date of receipt of a request for substantive examination if such request is filed after the date of publication of the application. An invention patent is valid from the date of issuance until the end of 20 years from the filing date. A utility solution patent shall be valid from the grant date until the end of 10 years after the filing date.
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a.IP Rights Licensing
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The licensing of an IP object means a permission given by the owner of such industrial property object for another organization or individual to use the industrial property object within the scope of the owner's right. There are a number of restrictions on licensing of industrial property objects: (i) the right to use geographical indications or trade names shall not be licensable; (ii) the right to use collective marks must not be licensed to organizations or individuals other than members of the owners of such collective marks; (iii) the licensee must not enter into a sub-license contract with a third party, unless it is so permitted by the licensor; (iv) mark licensees shall be obliged to indicate on goods and goods packages that such goods have been manufactured under mark license contracts; (v) invention licensees under exclusive contracts shall be obliged to use such inventions in the same manner as the invention owners. The licensing of IP objects must be by a written contract. For IPRs established on the basis of registration stipulated in the IP Law (including inventions, industrial designs, layout designs of semi conductor integrated circuits, marks, geographical indications), an industrial property object license contract shall be valid as agreed upon by the parties involved but shall be legally effective as against a third party upon registration with the State administrative body for IPRs.
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