|
Law promotes intellectual property rights
After nearly two years since its formal accession to the World Trade Organisation, Viet Nam can boast of a fairly complete system of laws and regulations on intellectual property, compatible with international law and capable of facilitating the nation’s global economic integration.
The core of the system is the 2005 Law on Intellectual Property, and its supporting regulations included in Decree No 100/2006/ND-CP on copyright and related rights; Decree No 103/2006/ND-CP, on industrial property rights; Decree No 104/2006/ND-CP of September 22, 2006, on industrial property rights to plant varieties; and Decree No 106/2006/ND-CP, on sanctioning of administrative violations related to industrial property. All these legal documents were issued in September 2006.
Intellectual property rights are also touched upon in many other laws regulating commerce and investment in Viet Nam, including the 2005 Civil Code, the 2005 Investment Law, the 2005 Commercial Law and the 2005 Enterprise Law.
Recognised as economic rights, intellectual property rights have monetary value and can be transferred through civil transactions (Article 181 of the Civil Code). Under the 2005 Investment Law, investors can have their intellectual property rights recognised and protected by the State (Article 7). Profits earned from the utilisation of intellectual property rights and sums of money payable for the licensed use of intellectual property may be remitted abroad upon fulfilment of financial obligations towards the State under regulations (Article 9). Intellectual property consultancy services are also regarded as a type of investment support service and their provision promoted (Clause 2, Article 42).
Under the 2005 Enterprise Law, the value of intellectual property rights may be contributed as capital to charter capital of enterprises (Clause 4, Article 4) and used to pay for shares and bonds (Article 89).
In order to "reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights" (the Preamble of the Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS Agreement), the 2005 Commercial Law also devotes 10 articles to matters related to intellectual property rights.
Accordingly, under a contract for the sale or purchase of goods, the seller may not sell goods infringing upon intellectual property rights and will be held responsible for any dispute related to intellectual property rights to goods sold. If the purchaser requests the seller to observe technical drawings, designs, formulas or specifications furnished by the purchaser, the purchaser will be liable to complaints related to infringements of intellectual property rights which arise from the seller’s compliance with the purchaser’s request (Article 46).
The seller will lose the right to invoke the above provisions when failing to promptly notify the purchaser of a third party’s complaint about the delivered goods after the seller knew or should have known of such complaint, except when the purchaser knew or should have known of such complaint (Article 47).
Regarding advertising and display of goods, traders have the right to register for protection of intellectual property rights to products they commercially advertise (Article 108); are prohibited from advertising their own business activities by advertising products which infringe upon the intellectual property rights of others (Clause 8, Article 109); are banned from displaying or introducing goods of other traders for comparison with their own goods, except when goods used for comparison are counterfeit goods or goods infringing upon intellectual property rights under law (Clause 4, Article 123); and may not display or introduce at trade fairs and exhibitions in Viet Nam counterfeit goods or goods infringing upon intellectual property rights, except when these goods are displayed or introduced for comparison with genuine goods (Point C, Clause 1, Article 134).
For goods processing, the processor is responsible for the lawfulness of intellectual property rights to processed goods, raw materials, materials, machinery and equipment for processing handed over to processors (Clause 5, Article 181).
Commercial franchising also constitutes a special aspect of commercial use of intellectual property rights under which the franchiser – pursuant to a franchise contract – is obliged to guarantee intellectual property rights to objects stated in the franchise contract (Clause 4, Article 287). The franchisee is obliged to stop using intellectual property (trademarks, trade names, business slogans, logos and other intellectual property rights) transferred by the franchiser upon the expiration or termination of the commercial franchise contract (Clause 5, Article 289). Commercial franchising activities are also governed by Decree No 35/2006/ND-CP of March 31, 2006.
Acts in violation of intellectual property rights in domestically traded, imported or exported goods and services are all regarded as acts in violation of the Commercial Law (Clause J, Article 320).
Fair trade practices related to intellectual property rights, and adequate and effective protection of intellectual property rights overall, are a goal Viet Nam shares with other WTO members. Though trade-related aspects of intellectual property rights are only a recently introduced concept in Viet Nam, the established legal framework now sets standards for lawful commercial activities that contribute to national prosperity and social justice while promoting legitimate research and development efforts.
Ha Huy Phong, Bizlink Law Firm
Viet Nam News
|
