Law No. 50/2005/QH11 on Intellectual Property

No. 101 - DECEMBER 2007

Viet Nam Law No. 50/2005/QH11

VIET NAM

INTELLECTUAL 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 concerning

the 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 Socialist

Republic of Vietnam as amended and supplemented

by the Resolution No. 51, 2001, QH10 of the 10th

Section of the 10th National Assembly dated 25

December, 2001;

This Law stipulates intellectual property rights.

PART ONE

GENERAL PROVISIONS

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

Article 1

Scope of regulation

This Law stipulates copyright, copyright - related

rights; industrial property rights; rights in plant

varieties and for the protection of these rights.

Article 2

Applicable subjects

This Law applies to Vietnamese organizations and

individuals, foreign organizations and individuals that

satisfy the requirements stipulated in this Law and

international treaties to which the Socialist Republic

of Vietnam is party.

Article 3

Objects of intellectual property rights

1. Objects of copyright include literary, artistic and

scientific works; objects of copyright - related rights

include performances, sound recordings, video

recordings; broadcasting programs; satellite signals

carrying encrypted program.

2. Objects of industrial property rights include

inventions; industrial designs; layout-designs of semi-

conductor integrated circuits; business secrets;

trademarks; trade names and geographical

indications.

3. Objects of rights to plant varieties are plant

varieties and its propagating materials.

Article 4

Interpretation of terminologies

In this Law, the following terminologies shall be

understood as follows:

1. Intellectual property rights are the rights of

organizations, 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 to

as related rights) are the rights of organizations,

individuals to performances, phonograms,

broadcasting programs, satellite signals carrying

encrypted program.

4. Industrial property rights are the rights of

organizations, individuals to inventions; industrial

designs; layout-designs of semi-conductor integrated

circuits; trademarks; trade names, geographical

indications, business secrets created or owned by

them and rights to repression of unfair competition.

5. Rights to plant varieties are the rights of

organizations, individuals to the new plant varieties

which are created or discovered and developed by

and fall under the ownership right of such

organization or individuals.

PLANT VARIETY PROTECTION

Viet Nam Law No. 50/2005/QH11

6. Intellectual property right holder is the owner of

the 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 the

mode or form of its expression.

8. Derivative work is a work translated from one

language to another, adapted, modified, transformed,

compiled, annotated and selected work.

9. Published work, phonogram is a work or a

phonogram already released with consent of

of being disseminated to the public with a reasonable

amount of copies.

10. To reproduce means the making of one or more

copies of a work or a phonogram in whatever mode

or form, including permanent or provisional backup

of the work in electronic form.

11.Broadcasting means the transmission by wire or

wireless means, including through the satellite, of

sounds or images and sounds of a work, a

performance, a phonogram or a broadcasting

program to the public for its reception at a place or

at a time select by them.

12. Invention is a technical solution, in form of a

product or a process, to resolve a specific problem by

utilizing laws of nature.

13. Industrial design is appearance of a product

expressed in shapes, lines, dimensions, colors or any

combination thereof.

14. Semiconductor integrated circuit is a product, in

its final form or an intermediate form, in which the

elements, at least one of which is an active element,

and some or all of the interconnections are integrally

formed in or on a piece of semiconductor material

and which is intended to perform an electronic

function. “Integrated circuit” is synonymous with

“IC”, “chip” and “microelectronic circuit”.

15. Layout-design of a semiconductor integrated

circuit (hereinafter referred to as “layout-design”) is

a three-dimensional disposition of circuitry elements

and interconnections of such elements in a

semiconductor integrated circuit.

16. Trademark is any sign used to distinguish goods

or services of different organizations and individuals.

17. Collective mark is a mark used to distinguish goods

or services of members from those of non-members

of an organization that is the owner of the mark.

18. Certification mark is a mark licensed by its owner

to other organizations, individuals to use for their

goods or services in order to certify characteristics in

respect of origin, materials, raw materials and

methods of goods production or methods of services

supply, quality, accuracy, safety or other characteristics

of such goods or services.

19. Associated marks are marks that are registered

by the same owner, identical or similar to each other

and are used for identical or similar or inter-related

goods and services.

20. Well-known mark is a mark widely known

throughout territory of Vietnam.

21. Trade name is a designation of an organization

or individual used in business to distinguish the

business entity bearing such designation from other

business entities acting in the same field and area of

business.

The area of business stipulated in this paragraph shall

be the geographical area where business entity has

business partners, clients or reputation.

22. Geographical indication is a sign used to indicate

a product originating from a specific area, locality,

region or country.

23. Business secret is information obtained from

financial, intellectual investment which is undisclosed

and susceptible to application in business.

24. Plant variety is a plant grouping within a single

botanical taxon of the lowest known rank, uniform

of morphological, stability in the propagation circle,

which can be distinguished by the phenotype

expressed by a genotype or the combination of

genotypes and distinguished from other plant

grouping in at least one genetic phenotype.

25. Protection title is a document granted by a State

authority to an organization, individual to establish

industrial property rights to inventions, industrial

No. 101 - DECEMBER 2007

designs, layout designs, marks, geographical

indications; and rights to plant varieties.

Article 5

Application of laws

1. Where there are intellectual property related civil

issues not being stipulated in this Law, the provisions

of Civil Code shall be applied.

2. Where there is any difference between provisions

on intellectual property rights of this Law and those

of other laws, the former shall be applied.

3. Where the provisions of the international treaties

to which the Socialist Republic of Vietnam is party

contravene the provisions of this Law, the former shall

be applied.

PART FOUR

RIGHTS FOR THE PLANT VARIETY

Chapter XI

CONDITIONS FOR PROTECTION OF PLANT

VARIETIES

Article 157

Organization or Individual who can be protected

the rights for plant variety

1. Organization or Individual who can be protected

rights for plant variety are Organizations, Individuals

which bred or discovered and developed the plant

variety or invested in the task to breed or discover

and develop the plant variety or the person to who

was transferred the rights over the pant varieties.

2. Organizations, Individuals mentioned in the

Provision 1 of this Article include Vietnamese and

organizations and individuals of foreign countries

which enter into agreements on the protection of

plant variety with the Socialist Republic of Vietnam;

and foreign organizations and individuals which

business or production establishment of plant variety

in Vietnam.

Article 158

General conditions for plant varieties over which

rights are protected

The plant variety over which rights are to be protected

is a variety which is bred or discovered and developed,

belonging to the List of species able to be protected

by State issued by the Ministry of Agriculture and

Rural Development, that variety is new, distinct,

uniform, stable and has a proper denomination.

Article 159

Novelty of the plant variety

The variety shall be deemed to have novelty if the

propagating or harvested material of the variety has

not been sold or distributed in other ways for the

purpose of exploitation by or with the consent of the

holder of the registration right as referred to in Article

164 of this Law in the territory of Vietnam more than

one year before the date of the application form is

submitted; or outside Vietnam more than six years

before the date of application form is submitted for

trees or grape and 4 years for other species.

Article 160

Distinctness of the plant variety

1. The variety shall be deemed to have distinctiveness

if it is clearly distinguishable in one or more major

characteristics from any other variety whose existence

is common knowledge at the time of filing or on the

priority date, as the case may be.

2. The common knowledge varieties as stipulated in

paragraph 1 mean the varieties of one of the

following cases:

a) Propagating materials or harvested products of such

variety have been widely used in the market of any

country in the world at the time of filing of the

registration application;

b) The variety has been protected or registered into

the List of plant species in any country;

c) The plant variety is still the subject of an application

for protection or for the List of plant species in any

country provided that application form was not

refused.

d) The plant variety which has had its description

published.

Article 161

Uniformity of the plant variety

The variety shall be deemed to have uniformity in the

propagation if there is the same expression of the

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PLANT VARIETY PROTECTION

relevant phenotype unless the variation is permitted

for certain characteristic in its propagation process.

Article 162

Stability of the plant variety

The variety shall be deemed to be stable if the relevant

phenotypic characteristics of that variety retain the

same expression as originally described, and remain

unchanged after each propagation crop or

propagation cycle, as the case may be.

Article 163

Denomination of plant variety

1. The registrant must propose an appropriate name

for the plant variety which name must be the same

as the denomination registered in any country upon

filing of a protection registration application

2. The variety shall be deemed to be properly

denominated if it is distinguishable from all other

varieties of common knowledge in the same species

or similar species.

3. The denominations of plant varieties shall not be

considered proper in the following cases:

a) Consisting of numerals only, except where such

numerals relate to the particularity or the

establishment of such plant variety;

b) Violating social morality;

c) Being liable to misrepresent the feature or

characteristics of that variety

d) Easy to misunderstand about Breeder’s

identification.

d’) Being identical or confusingly similar to a trade

mark, trade name or geographical indication already

protected before the date of filing of a registration

application for protection of such plant variety;

e) Being identical or similar to the name of harvested

products of such varieties.

g) Affecting prior rights of any other organization or

individual.

4. Any organization or individual that offers for sale

or brings to the market propagating materials of the

plant variety must use the name of the plant variety

as the name in the Protection Certificate even after

the expiry of the protection period stated.

5. When the name of a plant variety is combined

with a trademark, a trade name or an indication

similar to the name of plant variety already registered

for sale or offer in the market, such name must be

easily distinctive.

Chapter XII

ESTABLISHING THE RIGHTS FOR PLANT VARIETY

Section 1

Establishing the rights for a plant variety

Article 164

Registration of the rights over plant varieties

1. To obtain protection of the rights over for a new

plant variety, organizations and individuals must

submit the registration for protection to the State

administrative authority for plant variety rights.

2. The organizations and individuals holding the right

to register the protection of plant variety (to be

referred to as registrant) include:

a) Breeder who directly bred or discovered and

developed the variety by their expenses by way of

his/her own efforts and expenses.

b) Organizations or individuals which invested for the

breeder to breed or discover and develop the plant

variety by contract unless otherwise agreed.

c) Organizations and individuals transferred or

inherited the right of registration for Plant variety

protection

3. For the plant variety which is bred or discovered

and developed by way of using the State’s budget or

the finance of the project under the State

management, the rights over such plant variety will

belong to the State. The Government shall make

specific provisions for the registration of the right over

the plant variety as referred to in this Article.

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Article 165

Submission of the application form for

rights over a plant variety

1. Vietnamese organizations or individuals or foreign

organizations or individuals with a permanent address

of residence in Vietnam or with a plant variety

business or production establishment in Vietnam may

file an application for registration of rights over a plant

variety (hereinafter referred to as an application for

protection) either directly or through its legal

representative agency in Vietnam.

2. Foreign organizations and individuals without a

permanent address of residence in Vietnam or not

having a plant variety business and production

establishment in Vietnam may file an application for

protection through a lawful representative in Vietnam.

Article 166

The principles for submitting the first application

form for plant variety

1. In case more than one independent person submits

an application for protection on different days, the

plant variety protection certificate will be given to

the applicant who obtains the earliest valid

registration.

2. In case there are many application forms for

protection certificate of the same variety submitted

in the same day, the plant variety protection certificate

will be given to the registrant who is agreed by all

the others. If all the registrants could not agree, a

plant variety protection certificate will be given by

the State management authority of rights over plant

varieties to the first breeder who bred or discovered

and developed the variety.

Article 167

Priority principle for the application form

1. The registrant may request priority rights in case

an application form was submitted within 12 months

from the date on which the application form of the

same variety has been submitted in a country which

and the Socialist Republic of Vietnam both enter into

an agreement on plant variety protection. The filing

date of the first application shall not be included in

this time limit.

2. In order to claim priority, the registrant must specify

that claim in the registration application for

protection. Within no more than 3 months from

submitting the application for protection, the

registrant must produce copies of documents as

certified by the competent office and samples or other

evidence proving that the variety in both application

forms is the same and must pay the fees. The

registrant must be allowed to supply the information

or necessary materials to the State management office

of the rights over plant varieties for examination

according to the stipulations in Articles 176 and 178

of this Law after 2 years from the date when the

priority ends, or in proper time, depending on the

species of the plant variety stated in the application,

after the first application form is refused or rejected.

3. If the registration application for protection is

entitled to the right of priority, the priority date shall

be the date when the first application form was

submitted.

4. Within the time limit referred to in clause 1 of this

Article, the filing of another application or the

publication or use of the plant variety being subject

of the first application shall not be regarded as a basis

for refusing the registration application for protection

which is entitled to priority.

Article 168

Plant variety Protection Certificate and National

Registration Book of protected plant varieties

1. The contents of a Protection certificate include

the name of the variety and species; name of the

right holder (hereinafter referred to as the Certificate

Holder) and Breeder’s name as well as the duration

of protection of the right over the plant variety.

2. The state management office of the rights over

plant varieties will record the contents of the

protection certificate into the National Registration

Book for protected plant varieties which is established

and kept by the State management office of the plant

variety.

Article 169

The effectiveness of the plant variety

protection certificate

1. The Plant variety protection certificate will apply in

the whole territory of Vietnam.

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2. The plant variety protection certificate will take

effect from the date of the grant of rights for a period

of 25 years for trees and grapes; 20 years for other

species.

3. The plant variety protection certificate may be

cancelled or nullified in accordance with Articles 170

and 171 of this Law.

Article 170

Cancellation and reinstatement of the effectiveness

of plant variety protection certificate

1. The plant variety protection certificate may be

cancelled in one of the following cases:

a) The uniformity and stability of the protected variety

no longer meets the requirements as at the time of

granting the certificate;

b) Certificate Holder does not pay the annual fees in

accordance with the regulations;

c) Certificate Holder does not supply the necessary

documents and propagating materials for maintaining

as prescribed.

d) Certificate Holder does not change the name of

the plant variety as requested by the State

management office of the rights over plant varieties;

2. For the case stipulated in subparagraph a, c and d

paragraph 1 of this Article, the State management

office of the rights over plant varieties shall issue a

decision for cancellation of the plant variety protection

certificate.

3. For the case stipulated in paragraph 1.b of this

Article, upon the expiry date of the time limit for

payment of annual fee, the State management office

of the plant variety shall issue a decision on

cancellation of the plant variety protection certificate

from the first date of the next effective year in which

the annual fees is not paid.

4. For the cases stipulated in clause 1(a) of this Article,

any organization and individual shall have the right

to request the State management authority of the

rights over plant varieties for cancellation the

effectiveness of the plant variety protection certificate.

Based on the results of the application to request the

cancellation of the plant variety protection certificate

and the opinions of relevant parties, the State

management office of the rights over plant varieties

shall issue a decision to cancel the certificate or to

refuse the cancellation of the protection certificate.

5. For the cases stipulated in paragraph 1 this Article,

the State management office of the rights over plant

varieties shall promulgate the cancellation in a

specialized bulletin and specify the reasons for such

cancellation and at the same time shall serve a notice

to the certificate holder. Within 30 days from the date

of publication, the certificate holder has the right to

submit a request to the State management office of

the rights over plant varieties to explain the reasons

why the plant variety protection certificate is cancelled

and must pay the fee in order to reinstate the plant

variety protection certificate. Within 90 days from the

date of filing the request for reinstatement, the variety

protection owner must solve the reasons for which

the certificate was cancelled, with regard to the cases

stipulated in subparagraphs b, c and d paragraph 1

of this Article. The State management office of the

rights over plant varieties shall then consider

reinstating the validity of the protection certificate

and making it public in the specialized bulletin.

For the cases stipulated in paragraph 1.a of this

Article, the effectiveness of the plant variety

protection certificate shall be reinstated if the holder

succeeds in proving that the plant variety has met

the requirements as to the uniformity and stability

and has been so certified by the State management

office of the rights over plant varieties.

Article 171

Nullity of the effectiveness for

plant variety protection certificate

1. The effectiveness of the plant variety protection

certificate will be nullified in the following

circumstances:

a) The application form belongs to an applicant who

does not have the right to file, except where the right

over a plant variety has been assigned to the owner

of the plant variety;

b) The protected variety did not meet the conditions

for novelty or distinctness at the time of granting the

plant variety protection certificate.

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c) The protected variety did not meet the conditions

for uniformity or stability if the plant variety protection

certificate is granted on the basis of technical test

results which were supplied by the registrant.

2. Any organization or individual can request the state

administrative authority of the rights over plant

varieties to nullify the plant variety protection

certificate during the effectiveness of the plant variety

protection certificate.

Based on the results of examining the requirement

of the nullity and the opinions of relevant parties, the

State management office of the rights over plant

varieties shall issue a decision on refusal to annul or

shall issue a decision on the nullity the effectiveness

of the plant variety protection certificate or to refuse

such nullification.

3. In case of the plant variety protection certificate

is nullified, all the transactions arising on the basis of

the plant variety right are null and void. Such null

and void transactions shall be dealt with in accordance

with the Civil Law.

Article 172

Amendment or re-issue of the

plant variety protection certificate

1. The owner of a protection Certificate has the right

to request the State management office of the rights

over plant varieties to change or rectify any error

relating to the name and address of the holder of the

protection certificate, provided that prescribed fees

and charges must be paid. If such errors are made

by the State management office of the rights over

plant varieties, this office must rectify such errors and

the holder of the protection certificate shall be liable

for payment of any fees and charges.

2. The holder of a protection certificate may request

the State management office of the rights over plant

varieties to re-issue such plant variety protection

certificate it is lost or damaged provided that

prescribed fees and charges must be paid.

Article 173

Publishing the decisions related to the

protection certificate

All the decisions related to the grant, re-issue,

cancellation, nullity, amendment the variety protection

certificate shall be published by the State

management office of the rights over plant varieties

in a specialized bulletin within 60 days from date when

the decision is issued.

Section 2

Application form and the procedures for processing

registration applications for protection

Article 174

Registration applications for protection

1. The application for registering the rights for new

plant variety protection must include:

a) A registration form using the prescribed from;

b) Photos and technical questionnaires using the

prescribed form;

c) Authorization paper if the application form is filed

through a representative;

d) The documents which demonstrate the

registration right if the registrant is a person to whom

the right for registering has been transferred;

d’) Documents to prove the priority in case of claming

for priority.

e) The receipt of the fees.

2. A registration application for protection and any

transaction documents between the registrant and

the State management office of the rights over plant

varieties must be made in Vietnamese, except for the

following documents which may be made in another

language but must be translated into Vietnamese at

the request of the State management office of the

rights 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 for

registration of the application form for protection

include:

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a) The copy of the application form or the first

application form certified by the authorized

organization.

b) The paper of transfer or inheritance of the right

for priority if the right is transferred from another

person.

Article 175

Receiving the application form; Submission date

1. The registration application for protection will be

accepted by the State management office of the

rights over plant varieties with all documents

stipulated in paragraph 1 Article 174 of this Law.

2. The filing date for application form is the date on

which the application form is received by the State

management office of the rights over plant varieties.

Article 176

Examining the validity of the application form.

1. Within 15 days from the filing date, the application

form will be examined by the State management

office of the rights over plant varieties in order to

determine the validity of the application.

2. The registration application for protection shall be

regarded as invalid when one of the following cases

applies:

a) The application form does not follow the

requirements;

b) The variety in the application form does not belong

to a species in the List of protected species;

c) The registrant does not have the right for filing

including when the registration right belongs to

several organizations or individuals where one of them

does not agree upon the registration.

3. The State management office of the rights over

plant varieties will carry out the procedures as follows:

a) To announce the refusal of accepting the

application form for the cases stipulated in

subparagraph b) and c) paragraph 2 of this Article

with the reasons for refusing;

b) To inform to the registrant to correct the mistakes

for the cases stipulated in subparagraph a

paragraph 2 of this Article and to inform the time of

30 days from receipt of the notice for the correction

to the registrant;

c) To inform the refusal of the application form if

the registrant does not correct the mistakes or if the

registrant does not have a reasonable appeal against

the 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 the

variety to the organization in charge of the technical

test and follow the procedures stipulated in Article

178 of this Law if the application form is valid or if

the registrant has corrected mistakes or gave a

reasonable response to the notice as stipulated in

subparagraph b of this paragraph.

Article 177

Publication of the application form for protection

1. If the application form is valid, the State

management office of the rights over plant varieties

shall publish in the specialized bulletin on plant

varieties within 90 days from the date such application

is accepted.

2. The contents of publication include: No of

application form, date of filing, representative agent

(if have), name of registrant, name of owner, variety

name, species, the date on which the application form

was accepted as valid.

Article 178

Examining the content of the application form for

registering of plant variety protection

1. The State management office of the rights over

plant varieties shall examine the contents of the

application form which is accepted as valid. The

examination includes:

a) To examine for novelty and the denomination.

b) To examine the results of Technical Test of the

variety.

2. Technical Test means the conduct of growing tests

in order to determine the distinctness, uniformity and

stability of the variety.

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The technical test shall be carried out by the

competent office or organizations or individuals who

have enough capacity for conducting the technical

test following the stipulations of the Ministry of

Agriculture and Rural Development.

The state administrative authority of the rights over

plant varieties may use the results of the previous

technical test.

3. The time for examining of the test results shall be

90 days from the date of receiving the technical test

results.

Article 179

Modify and supplement the application form

1. The registrant has the following rights before the

state administrative authority of the rights over plant

varieties decides to grant or not to grant the plant

variety protection certificate or decision of the grant:

a) To modify or amend the application form without

changing the nature of the registration application

for protection;

b) To request acknowledging the changes of name

and address of the registrant.

c) To request acknowledging the changes of the

registrant due to transfer the application form under

a contract or as a result of inheritance or bequest.

2. The person who requests any of the procedures

stipulate at paragraph 1 of this Article must be submit

fees and annual fee.

Article 180

Withdrawing the application form for registration

1. Before the state administrative authority of the

rights over plant varieties decides to grant or refuse

to grant the protection certificate, the registrant can

withdraw the application form for protection. A

request for such withdrawal must be made in writing.

2. From the time which the registrant requests to

withdraw the application form for protection, all the

next procedures related to the application will be

terminated; the fees which have been submitted for

the procedures that have not yet been conducted

will be refunded following the request from the

registrant.

Article 181

Opinion of the third party for granting the plant

variety protection certificate

From the date of publication of the registration

application for protection of plant variety in the

professional bulletin until the time a decision for

granting a plant variety protection certificate is made,

any third party can send an opinion as about the issue

of a plant variety protection certificate to the State

management office of the rights over plant varieties.

The opinion must be made in writing accompanied

by arguments and evidence to support the opinion.

Article 182

Refusal to grant the plant variety

protection certificate

An application form for protection shall be refused

for the issue of a plant variety protection certificate

in case the variety does not meet any conditions

stipulated in Articles 176 and 178 of this Law. In case

of refusal, the State management office of the rights

over plant varieties shall implement the follow

procedures:

1. Announce the proposal to refuse the grant of a

Protection Certificate stating the reasons and the

deadline for the registrant to amend the shortcomings

or appeal against the announcement.

2. Announce the refusal of the grant of protection

certificate if the registrant has not amended the

shortcomings or have not made an appeal against

the announcement stipulated in paragraph 1 of this

Article.

3. Implement the procedures stipulated in Article 183

of this Law if the registrant has amended the

shortcomings or gives a valid opinion to appeal against

the proposal to grant stipulated in paragraph 1 of

this Article.

Article 183

Granting plant variety the protection certificate

If a registration application for protection is not

refused as set out in Article 182 of this Law and if the

registrant pays the fee, the State management office

of the rights over plant varieties shall issue the decision

for granting the plant variety protection certificate

and record this into the National Registration Book

of Protected Plant Varieties.

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2. To grant the protection certificate to the applicant.

Article 184

To complain about the issue or refusal to issue plant

variety protection certificates

1. The registrant and any other third party have the

right to complain about a decision to grant or the

refusal to grant a plant variety protection certificate.

3. Any complaint about decisions to grant or refuse

to grant the plant variety protection certificate will

be carried out according to the Law on Complaints

and Denunciations.

Chapter XIV

CONTENTS AND LIMITATIONS OF

RIGHTS FOR THE PLANT VARIETY

Section 1

The contents of rights over plant variety

Article 185

Rights of the Breeder

The Breeder of a plant variety has following rights:

1. Name of the Breeder will be recorded on the plant

variety protection certification and in the National

the published documents relating to the plant variety;

2. To get compensation as stipulated in paragraph

1(a) Article 191 of this Law;

Article 186

Rights of the Protection Certificate Holder

1. The Holder of a protection certificate has the rights

to use or permit other persons to use the following

rights over the propagating materials of the protected

plant 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 in

accordance with Article 188 of this Law.

To pass by inheritance or bequest or transfer the rights

over the plant variety in accordance with Chapter XV

of this Law.

Article 187

Extension of the rights of the protection

certificate holder

The rights of a protection certificate holder shall be

extended to the following plant varieties:

1. Plant varieties that originate from the protected

plant variety except where such protected plant

varieties themselves originate from another protected

plant variety;

A plant variety is regarded as originating from a

protected plant variety if such plant variety has still

retaining the expression of the essential characteristics

that result from the genotype or combination of

genotypes of the protected variety except for the

differences resulting from actions on the protected

variety.

2. Plant varieties which are not clearly different from

the protected plant variety;

3. Plant varieties, the production of which requires

the repeated use of protected plant varieties.

Article 188 Acts which infringe the rights over plant

varieties.

The following acts shall be considered as

infringements upon to the rights of the protection

certificate holders:

1. Exploiting or using the rights of the protection

certificate holder without his permission.

2. Using a denomination of the variety which is

identical or similar to a protected denomination of

the plant variety of the same or other similar species.

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3. Using the protected plant variety without payment

of the compensation amount provided for in

Article 189 of this Law.

Article 189

Temporary rights over for the plant varieties

1. The temporary rights over a plant variety are the

rights of the registrant for protection of the plant

variety which arise from the date of publication of

the registration application for protection until the

date of grant of a plant variety protection certificate.

The registrant will not have the temporary right in

case the variety protection certificate is not granted.

2. If the registrant is aware of the fact that another

person has been exploiting the plant variety for

commercial purposes, the registrant has the right to

inform that person in writing of the existence of a

registration application for protection of the plant

variety lodged by the registrant and must specify the

date of submission, the date on which the registration

application for protection has been published in order

for such another person to terminate the exploitation

or continue using it.

3. The user of the variety must pay an amount

equivalent to the value of transfer of the right to use

such variety within an appropriate scope and using

time in case the announcement has been informed

as stipulated in Paragraph 2 of this Article and the

user continues using.

Section 2

Limitations of rights over plant varieties

Article 190

Limitations to the right of a plant variety protection

certificate holder

1. The following acts are not considered as

infringements of the rights over a protected plant

variety:

a. Using the variety privately for non-commercial

purposes;

b. Using the variety for breeding and for scientific

research purpose;

c. Using the variety to create new plant varieties

distinctive from the protected plant varieties;

d. Production households may use the harvested

products of the protected variety for propagation and

cultivation in the next season in their own field.

2. Rights over a plant variety shall not be extended to

the acts related to any materials of the protected

variety which have been sold or otherwise taken out

of the Vietnamese or overseas market by the breeder

or his or her nominee, except for the following acts:

a) Relate to the continuous propagation of such a

plant variety;

b) Relate to the export of propagating materials of

such plant variety to a country where the genus or

species are not protected except where such materials

are exported for consumption purpose only;

Article 191

Obligations of the Holders and Breeder

1. The Holder of the protection certificate has the

following obligations:

a) To pay compensation to the breeder as agreed

between them, in the absence of such agreement,

the compensation must be paid following the

stipulations of the Law.

b) To pay fees for the plant variety protection

certificate according to the stipulation.

c) To preserve the protected variety and to supply

propagating material of the protected variety to the

state administrative authority of the rights over plant

varieties and to maintain the stability of the protected

variety as the stipulations.

2. The Breeder of the variety has the obligation to

help the protection certificate holder to maintain the

propagating material of protected variety.

Chapter XV

TRANSFER OF THE RIGHTS TO A PLANT VARIETY

Article 192

Transfer the rights to use of the plant variety

1. Licensing for use of a plant variety means the

permission of the Holder of the plant variety given to

another person to conduct one or some acts of his

right to use the plant variety.

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2. The licensing for use of a plant variety shall be

consented by all holders in case the right falls under

co-ownership.

3. The licensing for use of a plant variety shall be

conducted in the form of a written contract.

A licensing contract for use of a plant variety shall

not have such provisions that unreasonably restricts

the right of the licensee, particularly those provisions

neither deriving from, nor aimed at protecting of, the

rights of the licensor to the plant variety.

Article 193

The rights of the parties in licensing contract

1. The licensor shall have the rights to permit or not

permit the licensee to assign the license for use to a

third party;

2. The licensee shall have the following rights:

a) To assign the license for use to a third party if it is

agreed by the licensor;

b) To request to the licensor to carry out necessary

measures against any infringements by a third party

causing damage to the licensee.

c) To carry out necessary measures to prevent a third

party infringements if within a time limit of 3 months

from the date of the request, the licensor fails acts as

requested the in accordance with sub paragraph b

of this clause.

Article 194

Assignment of the rights for plant variety

1. To assign the rights for a plant variety means that

the holder of the plant variety transfers all the rights

of such plant variety to the assignee. The assignee

shall become the owner of the plant variety Protection

Certificate from the date for registration of the

assignment contract with the state administrative

authority of the rights over plant varieties in

accordance with the prescribed procedures.

2. Where the right of a plant variety is under co-

ownership, the assignment of such rights must be

consented by all owners.

3. The assignment of the ownership rights to a plant

variety must be made in a written contract.

Article 195

Bases and conditions for compulsory licensing for

use of the plant variety

1. In the following cases, the right to use a plant

variety shall be licensed to another organization or

individuals under a decision of the state competent

authority as referred to in Article 196.1 of this Law

without having to obtain permission from the

protection certificate holder or his nominee (to be

referred to as the holder of the exclusive right to use

the pant variety):

a) The use of such plant variety is for the public

interest, for non-commercial purpose, to satisfy the

needs of national defense, national security, disease

prevention, treatment and nutrition for people or to

meet other social urgent needs;

b) The person having a demand and capacity to use

the plant variety fails to reach an agreement with the

holder of the exclusive right to use the plant variety

upon entering into a licensing contract although best

efforts have been made for a reasonable period of

time to negotiate the price rate and other commercial

conditions.

c) The holder of the exclusive right to use the plant

variety is regarded as conducting an act of constraint

of competition under the competition legislation.

2. The holder of the exclusive right to use the plant

variety has the right to terminate the right has the

right to request for termination of such right of use

when the bases of compulsory licensing provided for

in clause 1 of this Article cease to exist and are unlikely

to recur, provided that such termination shall not

prejudicial to the licensee.

3. The right to use a plant variety shall be transferred

under a decision of a state competent authority in

compliance with the following conditions:

a) Such right of use is non-exclusive;

b) Such right of use shall only be limited to such a

scope and period sufficient to attain the objectives

of the compulsory licensing, and predominantly for

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the supply of the domestic market, except for the

cases referred to in clause 1(c) of this Article;

c) The licensee shall not assign such right of use to

another person, except with the assignment of his or

her business premise, or not grant a sub-license to

others;

d) The licensee must pay an adequate compensation

to the holder of exclusive right to use the plant variety

taking into account the economic value of such right

of use in each specific case, in compliance with the

remuneration frame provided for by the Government;

4. The Government shall make specific provisions for

the cases of compulsory licensing of the right to use

plant varieties and the compensation frame as

referred to in Article 3(d) of this Article.

Article 196

Power and procedures for licensing the right to use

plant varieties under compulsory decisions

1. The Ministry of Agriculture and Rural Development

shall issue decisions on licensing the right to use a

plant variety in the fields under the scope of its State

administration on the basis of a relevant request in

the cases set out in Article 195.1 of this Law.

Ministries, ministerial-level agencies shall issue

decisions to license the right to use plant varieties in

the fields under the scope of its State administration

on the basis of consultation with the Ministry of

Agriculture and Rural Development in the cases

referred to in Article 195.1 of this Law.

2. A licensing decision must fix the scope and

conditions of such use in accordance with Article

195.3 of this Law.

3. The State competent authority that makes a

decision on licensing the right to use a plant variety

must notify this decision to the holder of the exclusive

right to use such plant variety.

4. A decision on licensing the right to use a plant

variety or refusal to license the right to use a plant

variety may be complained about or subject to a

lawsuit in accordance with the law.

5. The Government shall make specific provisions for

procedures for licensing of the right to use a plant

variety as referred to in this Article.

Article 197

Rights of Protection Certificate holders in case of

compulsory licensing

The protection certificate holder being subject of

compulsorily licensing of the right to use a plant variety

shall have the following rights:

1. To receive an adequate compensation

corresponding to the economic value of such right of

use or equivalent to the price of contractual licensing

of such right with similar scope and term;

2. To request the state administrative authority of the

rights over plant varieties to amend, cancel or nullified

the validity of the compulsory license when the

conditions resulting in such compulsory licensing no

longer exist or if such amendment, cancellation or

nullity does not cause damages to the compulsory

licensee.

PART FIVE

ENFORCEMENT OF INTELLECTUAL PROPERTY

RIGHTS

Chapter XVI

GENERAL PROVISIONS ON ENFORCEMENT OF

INTELLECTUAL PROPERTY RIGHTS

Article 198

Right to protection by oneself

1. Intellectual property right holders shall have the

right to apply the following measures to protect their

intellectual property rights:

a) Taking technological measures to prevent

infringement of intellectual property rights;

b) Requesting organizations, individuals that have

committed acts of infringement of intellectual

property rights to terminate the infringing acts,

apologize, publicly rectify and compensate damages;

c) Requesting the competent state agencies to handle

acts of infringement of intellectual property rights in

accordance with provisions of this Law and other

related laws and regulations;

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d) Initiating a lawsuit at a competent court or an

arbitrator to protect their legitimate rights and

interests;

2. Organizations and individuals that suffer from

damage caused by acts of infringement of intellectual

property rights or discover acts of infringement of

intellectual property rights that cause damage to

consumers or the society shall have the right to

request State competent agencies to handle such acts

of infringement in accordance with the provisions of

this Law and other related laws and regulations.

3. Organizations and individuals that suffer from

damage or are likely to suffer from damage caused

by acts of unfair competition shall have the right to

request State competent agencies to impose civil

remedies provided for in Article 202 of this Law and

administrative remedies provided for in the laws on

competition.

Article 199

Remedies against acts of infringement of

intellectual property rights

1. Organizations and individuals that have committed

acts of infringement of other’s intellectual property

rights are liable to civil, administrative or criminal

remedies, depending on nature and extent of such

infringement.

2. In appropriate cases, State competent agencies

shall have the right to apply provisional measures,

intellectual-property-related control measures with

regard to imports and exports and preventive

measures and shall ensure that administrative

penalties shall be imposed as provided for in this Law

and other related laws and regulations.

Article 200

Authorities in handling the infringement of

intellectual property rights

1. Courts, inspectorate, market management

agencies, custom offices, police agencies and the

People’s Committees of all levels, within its duties and

authorities, are entitled to handle acts of infringement

of intellectual property rights.

2. The application of civil remedies and criminal

remedies shall fall within the authorities of the courts.

In appropriate cases, the courts are entitled to apply

provisional measures in accordance with the laws and

regulations.

3. The application of administrative remedies shall

fall within the authorities of inspectorate, police

agencies, market management agencies, custom

offices and the People’s Committee of all levels. In

appropriate cases, the above-mentioned agencies are

entitled to apply preventive measures and ensure that

administrative penalties shall be imposed in

accordance with the laws and regulations.

4. The application of intellectual property border

control measures with regard to imports and exports

shall fall within the authorities of custom offices.

Article 201

Inspection, assessment on intellectual property

1. Inspection and assessment on intellectual property

means the competent organizations or individuals use

their knowledge and expertise in intellectual property

to make assessment, conclusion on matters related

to intellectual property right infringement cases.

2. State competent agencies shall have the right to

call for inspection, assessment on intellectual property

in order to handle those cases accepted by these

agencies.

3. Intellectual property right holders and other

related organizations or individuals shall have the right

to request for inspection, assessment on intellectual

property in order to protect their legitimate rights and

interests.

4. The government shall make specific provisions on

inspection and assessment on intellectual property.

Chapter XVII

DEALING WITH INFRINGEMENTS OF INTELLECTUAL

PROPERTY RIGHTS THROUGH CIVIL REMEDIES

Article 202

Civil remedies

The court shall take the following civil remedies to

handle organizations and individuals that have

committed acts of infringement of intellectual

property rights:

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1. Compelling termination of the infringement of

intellectual 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, materials

and implements the predominant use of which has

been in the creation or trading of intellectual property

right infringing goods, provided that such distribution

and use does not affect the exploitation of rights by

the intellectual property rights holder.

Article 203

Rights and burden of proof of the litigants

1. The plaintiff and defendant in a lawsuit against

infringement of intellectual property rights shall have

the rights and burden of proof provided for in Article

79 of the Civil Procedures Code and this Article.

2. The plaintiff shall prove that he or she is the

intellectual property right holder with one of the

following evidences:

a) A valid copy of the Copyright Registration

Certificate, Related Right Registration Certificate,

Protection Title, or an extract from the National

Registers of Copyrights and Related Rights, the

National Registers of Industrial Designs, layout-designs

and National Registers of Protected Plant Varieties;

b) Necessary evidence proving basis the

establishment of copyrights, related rights in case of

absence of a copyright registration certificate, related

right registration certificate; necessary evidence

proving the rights to business secrets, trade names

or well-known marks;

c) Copies of licensing contracts for using intellectual

property subject matters in case the right to use is

licensed under a contract.

3. The plaintiff shall produce evidence of the

infringement of intellectual property rights or acts of

unfair competition.

4. In a lawsuit against an infringement of the right

to a patented invention, which is a production process,

the defendant shall prove that his or her products

are made by a process other than the protected

process:

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

b) The product made by the protected process is not

new, but the owner of the protected process believes

that the product of the defendant is made by the

protected process and failed identify the process used

by the defendant despite that reasonable measures

have been taken.

5. In case a party to a lawsuit against an infringement

of intellectual property rights has proven that evidence

relevant to substantiation of his or her claims lies in

the control of the other party and therefore

inaccessible, the former shall have the right to request

the court to compel the later to produce such

evidence.

6. In case of a claim for damages, the plaintiff must

prove his or her actual damages and specify the basis

for his or her claim in accordance with Article 205 of

this Law.

Article 204

Principles 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 business

opportunities, reasonable expenses for prevention and

restoration from such damages, reasonable attorney

fees and other tangible losses;

b) Spiritual damages comprise loss to honor, dignity,

prestige, reputation and other spiritual losses caused

to the authors of literary, artistic and scientific works;

to performers, authors of inventions, industrial

designs, lay out designs; and breeders.

2. The level of damage shall be determined on the

basis of the actual losses suffered by the intellectual

property right holders due to the infringement of his

or her intellectual property rights.

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Article 205

Bases for determination of damages caused by the

infringement of intellectual property rights

1. In case the plaintiff succeeds in proving that an

infringement of intellectual property rights has caused

physical damages to him or her, he or she shall have

the right to request the court to determine the rate

of compensation on one of the following bases:

a) The total physical damage determined in an

amount of money plus the profits gained by the

dependant as a result of infringement if reduced

profits of the plaintiff have not yet been included in

the total physical damage;

b) The value of the transfer of the right to use the

intellectual property subject matter with the

presumption that the defendant has been transferred

by the plaintiff with the right to use that intellectual

property subject matter under an agreement for using

such intellectual property subject matter to the extent

equivalent to the act of infringement committed;

c) Where it is impossible to determine the rate of

compensation in accordance with subparagraphs a)

and b) of this paragraph, that rate shall be fixed by

the court depending on the loss level but not

exceeding VND 500 million.

2. If the plaintiff succeeds in proving that the

infringement of intellectual property rights has caused

spiritual damage to him or her, he or she shall have

the right to request the court to determine the rate

of compensation ranging from VND 5 million to VND

50 million, depending on the level of damage.

3. In addition to the damages referred to in clauses

1 and 2 of this Article, an IPR holder may request the

court to compel the infringer to pay reasonable costs

of hiring attorneys.

Article 206

Right to request the court to

apply provisional measures

1. Upon or after initiation of a lawsuit, an intellectual

property right holder shall have the right to request

the court to apply provisional measures in the

following cases:

a) There is a threat of irreparable damage to the

intellectual property right holder;

b) There is a threat of dispersal or destruction of

goods suspected of infringing upon intellectual

property rights and relevant evidence if they are not

protected in time.

2. The court shall decide to apply provisional

measures at the request of the IPR holder as set out

in clause 1 of this Article before listening to the

opinion of the party liable for such provisional

measure.

Article 207

Provisional measures

1. The following provisional measures are shall

applicable to goods suspected of infringing upon

intellectual property rights or to the materials, raw

materials or implements for producing or trading such

goods:

a. Seizure;

b. Attachment;

c. Sealing, prohibition of changing status or displacing;

d. Prohibition of transferring ownership;

2. Other provisional measures shall be applied in

accordance with the Civil Procedure Code.

Article 208

Obligations of the person who requests for the

application of provisional measures

1. A person who requests for the application of

provisional measures is obliged to prove his or her

right to request as provided for in paragraph 2 Article

206 of this Law, including the production of materials

and evidence as provided for in paragraph 2 Article

203 of this Law.

2. A person who requests for the application of

provisional measures is obliged to pay compensation

for the damages to such provisional measure debtor

in case such person is found not to infringe the IPRs.

To secure the performance of this obligation, the

person who requests for the application of provisional

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measures must deposit a sum of security in one of

the following forms:

a) Depositing an amount of money equal to 20% of

the value of the goods that is subject to the application

of provisional measures, or at least 20 million VND if

it is impossible to evaluate those goods;

b) Submitting a guarantee document issued by a

bank or other credit organizations

Article 209

Termination of the application of

provisional measures

1. The court shall decide to terminate the application

of a provisional measure in any of the cases referred

to in paragraph 1 Article 122 of the Civil Procedure

Code or in case that the provisional measure debtor

succeeds in proving that the application of such

provisional measure is unreasonable.

2. In case of termination of the application of a

provisional measure, the court shall consider

reimbursement to the requesting person of the

deposited amount referred to in paragraph 2 Article

208 of this Law. If the request for the application of

provisional measure is unreasonable, causing damage

to the provisional measure debtor, the court shall

compel the requesting person to compensate the

damage.

Article 210

Authorities and procedures for

applying provisional measures

The authorities and procedures for applying

provisional measures shall comply with the provisions

of Chapter VIII of Part One of the Civil Procedure

Code.

Chapter XVII

DEALING WITH INFRINGEMENTS OF INTELLECTUAL

PROPERTY RIGHTS THROUGH ADMINISTRATIVE

AND CRIMINAL REMEDIES; CONTROL OF

INTELLECTUAL-PROPERTY-RELATED

IMPORTS AND EXPORTS

Section 1

Dealing with infringements of intellectual property

rights through administrative and criminal remedies.

Article 211

Acts of IPR infringements liable for

administrative remedies

1. The following acts of IPR infringements shall be

subject to the administrative remedies:

a) Committing an act of infringement of intellectual

property rights, which causes loss to consumers or

the society;

b) Not terminating an act of infringement of

intellectual property rights, even if a written notice

has been served by the intellectual property right

holder;

c) Producing, importing, transporting, and trading

in intellectual property counterfeit goods referred to

in Article 213 of this Law or assigning others to do

so;

d) Producing, importing and trading in articles

bearing a mark or a geographical indication that is

identical with or confusingly similar to a protected

mark or a protected geographical indication or

assigning others to do so;

2. The Government shall make specific provisions for

acts of IPR infringements to be liable for administrative

remedies, form and level of remedies and procedures

for imposing such administrative remedies.

3. Organizations and individuals that have committed

acts of unfair competition shall be liable to the

administrative remedies provided for in the

competition legislation.

Article 212

Acts of IPR infringements liable for

criminal remedies

Individuals who have committed acts of infringement

of intellectual property rights having factors that

constitute a crime shall be liable to the criminal

liabilities in accordance with the criminal laws and

regulations.

Article 213

Intellectual property counterfeit goods

1. Intellectual property counterfeit goods referred to

in this Law include counterfeit mark goods or

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counterfeit geographical indication goods (hereinafter

referred to as counterfeit mark goods) referred to in

paragraph 2 of this Article and pirated goods referred

to in paragraph 3 of this Article.

2. Counterfeit mark goods are goods or their

packaging bearing a mark or a sign which is identical

with or substantially indistinguishable from a mark

or geographical indication which is protected for such

goods without consent of the owner of such mark or

the management organization of such geographical

indication respectively.

3. Pirated goods are copies made without the

consent of the copyrights holder or the related rights

holder.

Article 214

Administrative penalties and remedies

1. Organizations and individuals that have committed

acts of IPR infringement referred to in Article 211.1

of this Law shall be compelled to terminate the

infringement and subject to one of the following main

remedies:

a) Warning;

b) Monetary fine.

2. Depending on nature and level of the infringement,

the IPR infringing organizations and individuals are

liable to the following complementary remedies:

a) Confiscation of intellectual property counterfeit

goods, materials, raw materials and implements

mainly used for manufacturing or trading such

intellectual property counterfeit goods;

b) Suspension of relevant business activities for a

definite term.

3. In addition to the remedies referred to in

paragraphs 1 and 2 of this Article, organizations and

individuals that have committed IPR infringing acts

are liable to the following restoration remedies:

a) Compelling destruction, distribution or use of the

intellectual property counterfeit goods for non-

commercial purposes and materials, raw materials and

implements mainly used for manufacturing or trading

such intellectual property counterfeit goods provided

that such distribution and use does not affect the

exploitation of rights by intellectual property right

holder;

b) Compelling delivery of the transiting goods out

of the territory of Vietnam or re-export of the

intellectual property counterfeit goods, implements

and materials that are imported mainly for

manufacturing or trading such intellectual property

counterfeit goods, after having removed infringing

elements.

4. The monetary fine rates referred to in

subparagraph b of paragraph 1 of this Article shall

be at least equal to the value of the discovered

infringing goods but must not exceed five times of

that value.

The Government shall make detailed provisions for

the method of determination of the value of infringing

goods.

Article 215

Application of preventative measures

1. In the following cases, organizations and

individuals shall have the right to request the

competent agency to apply administrative remedies

and ensure that administrative penalties shall be

imposed in accordance with clause 2 of this Article:

a) Acts of infringement of intellectual property rights

may cause serious damage to consumers or the

society;

b) There is a threat of the infringing means being

dispersed or the infringer evading his or her liabilities;

c) In order to guarantee the implementation of

administrative remedies.

2. Administrative preventative measures applicable

under administrative procedures to the infringement

of intellectual property rights comprise the followings:

a) Temporary hold of related individuals;

b) Temporary detention of the goods, means and

implements used for such infringement;

c) Search of related individuals;

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d) Search of the place where infringing goods, means

and implements are stored;

d’) Other administrative preventative measures in

accordance with the laws and regulations.

Section 2

Control of IP-related imports and exports

Article 216

Border control measures of IP-related

imports and exports

1. Border control measures of IP-related imports and

exports comprise the followings:

a) Suspension of customs procedures for suspected

intellectual property right infringing goods.

b) Supervision to detect goods containing signs of

infringement of intellectual property rights.

2. Suspension of customs procedures for suspected

intellectual property right infringing goods is a

measure taken at the request of the intellectual

property right holder for the purpose of collecting

information and evidence about the lots of goods

which serves as the basis for the intellectual property

right holder to exercise the right to request for the

handling of the infringement and to request for the

application of provisional measures or preventive

measures, and to ensure that an administrative

penalty is to be imposed.

3. Examination and supervision to detect goods

containing signs of infringement of intellectual

property rights is a measure taken at the request of

the intellectual property right holder for the purpose

of collecting information in order to exercise the right

to request for the suspension of customs procedures.

4. During the course of application of measures

referred to in paragraphs 2 or 3 of this Article, if any

goods detected to be intellectual property counterfeit

goods in accordance with Article 213 of this Law, the

customs offices shall have the right and duty to impose

administrative remedies referred to in Article 214 and

Article 215 of this Law.

Article 217

Obligations of person who requests for the

application of border control measures of IP-related

imports and exports

1. A person who requests for the application of

border control measure in respect of IP-related imports

and exports shall have the following obligations:

a. Proving that he or she is the intellectual property

right holder by producing the materials and evidence

referred to in paragraph 2 Article 203 of this Law.

b. Providing information sufficient to identify the

suspected intellectual property right infringing goods

or to discover infringing goods.

c. Lodging an application with the customs office

and pay fees and charges prescribed by the laws and

regulations.

d. Payment of damages and other incurred expenses

to the persons being subject to such measure in case

the goods subject to that control measure are found

not to infringe upon IPRS.

2. To secure the performance of the obligations set

out in clause 1(d) of this Article, a person requesting

for the application of measure of suspension of

customs procedures must deposit a sum of security

in one of the following methods:

a) Depositing an amount of money equal to 20% of

the value of the lots of goods that is subject to the

suspension of customs procedures; or at least VND

20 million if it is impossible to evaluate such lots of

goods;

b) Submitting a guarantee document issued by a

bank or other credit organizations.

Article 218

Procedures for the application of

suspension of customs procedures

1. When a person who requests for the suspension

of customs procedures has properly performed his or

her obligations provided for in Article 217 of this Law,

the customs office shall issue the decision on

suspension of customs procedures with regard to

relevant lots of goods.

Viet Nam Law No. 50/2005/QH11

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PLANT VARIETY PROTECTION

2. The term of suspension of customs procedures

shall be 10 working days from the date of issuing the

decision on the suspension of customs procedures.

This term may be prolonged up to 20 working days if

the person who requests for the suspension of

customs procedures has due reasons and having

deposited an additional amount of money referred

to in paragraph 2 of Article 217 of this Law.

3. At the expiration of the term provided for in

paragraph 2 of this Article if the person who requests

for the suspension of customs procedures fails to

initiate a civil lawsuit and the customs office does

not accept the case to handle the importer of the

lots of goods under administrative procedures, the

customs office shall:

a) Continue the completion of customs procedures

for such lots of goods;

b) Compel the person who requests for the

suspension of customs procedures to compensate all

the damages incurred by the owner of the lots of

goods due to unreasonable request for the suspension

of customs procedures, and to pay expenses for

storage and preservation of goods as well as other

costs incurred by the customs office and other related

organizations and individuals in accordance with the

laws and regulations on customs;

c) Reimburse the person who requests for the

suspension of customs procedures the rest of the

deposited guarantee amount after having performed

obligations and paid all the costs referred to in sub-

paragraph b) of this paragraph.

Article 219

Examination and supervision to detect goods

containing signs of IPR infringement

When an IPR holder requests for examination and

supervision to detect a lot of goods containing signs

of IP infringement and when such lot of goods is

detected, the customs office shall immediately notify

the person who requests for such examination and

supervision. Within three working days from the date

of such notification, if the person that made the

request fails to make a request for suspension of

customs procedures with regard to the detected lot

of goods and the customs office does not decide to

handle the importer of the lots of goods with

administrative remedies in accordance with Articles

Viet Nam Law No. 50/2005/QH11

214 and 215 of this Law, the customs office shall

continue the completion of customs procedures for

such lots of goods.

PART SIX

PROVISIONS OF IMPLEMENTATION

Article 220

Transitional provisions

1. Any copyright or related right protected under the

legal documents applicable before the effective date

of this Law shall continue to be protected under this

Law if it remains in term of protection on that date.

2. Any applications for registration of copyright,

related rights, inventions, utility solutions, industrial

designs, trademarks, appellations of origin, layout-

designs, new plant varieties which have been filed

with competent authorities before the effective date

of this Law shall be handled in accordance with legal

instruments at the time of the filing of the application.

3. All rights and obligations conferred by Protection

Titles granted under the provisions applicable before

the effective date of this Law and procedures for

maintenance, renewal, correction, license,

assignment, resolution of disputes concerning these

protection titles shall be subject to this Law, except

for those grounds for invalidation of a Protection Title

which shall only be subject to the provisions of legal

documents applicable at the time of its grant.

4. Trade secrets and trade names which have been

existing and protected under Decree 54/2000/ND-CP

dated October 3, 2000 of the Government on the

protection of industrial property rights with regard

to trade secrets, geographical indications, trade

names and the protection of rights against industrial

property related unfair competition shall be continued

to be protected under this Law.

5. From the effective date of this Law, geographical

indications, including those protected under the

Decree referred in paragraph 4 of this Article, shall

only be protected if they are registered with the state

administration authority of industrial property.

Article 221

Effectiveness

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

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Article 222

Guidance of implementation

The Government and the Supreme People’s Court

shall make detailed provisions and provide guidelines

for the implementation of this Law.

This Law has been ratified by the Legislature XI of

the National Assembly of the Socialist Republic of

Vietnam in its 8th session on November 29, 2005.

THE CHAIRMAN OF THE NATIONAL ASSEMBLY

Viet Nam Law No. 50/2005/QH11