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Intellectual Property

1. Intellectual Property Objects

In recent years the Government has taken various measures to strengthen the legal protection of intellectual property. Since 1995, the National Assembly passed the Civil Code, which has a chapter devoted to the protection of intellectual property rights.

Recently, the National Assembly adopted the Law on Intellectual Property, effective July 1, 2006, which systemizes intellectual property objects, conditions for registration or protection of intellectual property rights and enforcement measures.

Vietnam is a long time signatory to the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks and the Patent Cooperation Treaty (PCT). Vietnam is also a member of the World Intellectual Property Organization (WIPO), which was established by the Stockholm Convention in March 1993. On 27 June 1997, Vietnam signed the Agreement on the Establishment of Copyrights Relations with the US. Recently, in 2004 Vietnam became a member of the Berne Convention on Copyrights and in 2006, Vietnam became a member of the Madrid Protocol on Trademarks.

According to Vietnamese law, industrial property objects are required to be registered in order to enjoy protection in Vietnam (first to file basis). Patents are protected for a period of 20 years. A certificate of utility solutions may be granted for 10 years.

A certificate of industrial design is granted for 5 years and may be renewed every 5 years; however the total effective period of a certificate of industrial design cannot exceed 15 years. Certificates of trademark registration are granted for 10 years with no restrictions on the number of renewals. It is not necessary to register a well-known trademark as the well-known trademark is protected on basic use not depending on the registration.

In Vietnam, the organization structure for State administrative of IP rights is as follows:

(i)                   The National Office of Intellectual Property (“NOIP”), under the management of the Ministry of Science and Technology, is the authority responsible for the registration of industrial property objects including, among others, patents, trademarks, industrial designs integrated circuits and geographical indications. Foreign individuals not permanently residing in Vietnam and foreign organizations and individuals without production or business establishments in Vietnam who seek to register their IP rights in Vietnam must use an industrial property agent to file the application for registration at the NOIP.

(ii)                 The Office of Copyright Protection under the Ministry of Culture and Information is responsible for copyright protection.

In Ho Chi Minh City, the Department of Science and Technology and the Department of Culture and Information have the responsibility to respond to investors for intellectual property related matters.

2. Enforcement Procedures

The measures to enforce intellectual property rights that are available in Vietnam to the intellectual property rights owners in the event of infringement include:

(i)                   Information measures (non-procedural measures)

(ii)                 Administrative measures;

(iii)                Border measures;

(iv)               Civil measures; and

(v)                 Criminal measures.

2.1. Information measures

Sometimes, when the owner of an intellectual property right sends a warning letter to the person who is committing the infringement or unfair act is sufficient in stopping such an act. Advertising in the most popular newspapers or magazines information regarding counterfeit products and providing the public with advice in distinguishing between the real products from the counterfeit ones is also an effective way of stopping possible or existing infringement or unfair acts and often used by trademark owners.

2.2. Administrative measures

Any person, who infringes, whether intentionally or unintentionally but "not yet at the level of criminal liability", intellectual property right, shall be administratively penalized. Proceeding with administrative measures, an intellectual property right owner can obtain prompt administrative remedies, some of which he or she would usually seek from civil courts in other countries, than the civil procedure in the courts of Vietnam. The most common administrative measures include, a warning, a monetary fine and confiscation and destruction of infringed products.

2.3. Border measures

One of the most important functions of customs is to control and inspect goods imported or exported at border crossings, especially to combat illegal border traffic. Under the Law on Customs, this authority extends to intellectual property. An owner of intellectual property right shall have the right to request customs to suspend the import and export of goods in respect of which the owner has valid grounds to prove that his intellectual property right is being infringed. The IP right owner must submit a written notice objecting the import or export, evidence of the alleged infringement of intellectual property right, and a security or equivalent assurance. Customs will have the authority to stop and suspend customs clearance and decide the applicable administrative measures for dealing with goods for which the customs procedures have been suspended and which infringe IP rights.

2.5. Civil Remedies

The two main remedies are (i) an injunctive relief against further infringement; and (ii) compensation for damages. Though not specifically provided for in the intellectual property legislation, in practice, Vietnamese courts often calculate damages based on the plaintiff's lost sales or the defendant's profits as a result of the defendant's infringement.

2.6. Criminal Prosecution

Any person who infringes intellectual property rights causing serious consequences, or any infringer who has been punished administratively, or who has been convicted of the same or similar act before his criminal record has been expunged, shall be fined up to 200 million Vietnamese Dong (VND) (US$12,500) or re-educated without detention for up to 2 years. In "very serious" or "extremely serious" cases, the penalty shall be imprisonment for up to 3 years.

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