New Regulations of Intellectual Property Law in 2022

Intellectual property is currently playing a very important role in Vietnam and other countries around the world. With the participation in Trade Agreements and market expansion, the regulations on intellectual property have had many positive changes towards the protection and promotion of intellectual property rights and in line with the general trend of countries.

Intellectual property rights in Vietnam

Intellectual property rights are the rights of organizations or individuals to trademarks, inventions, designs or other forms of creation. Currently, intellectual property rights are recognized as an asset class, which can constitute corporate assets. Popular groups of intellectual property today include: (i) Copyright; (ii) Inventions; (iii) Industrial design; (iv) Trademarks. These are objects created by thinking, mental labor, cognitive activities of people and protected by law.

Currently, intellectual property rights are governed by the 2005 Intellectual Property Law, which was amended and supplemented in 2009, and 2019. These are efforts in changing Vietnam’s legal system in raise awareness and perfect the legal system on intellectual property of Vietnam. Up to now, the Intellectual Property Law has created a legal corridor for organizations and individuals to establish and protect intellectual property rights, contributing to encouraging creative activities, and enhancing the value of intellectual property, wisdom. However, after 17 years since its promulgation, the Law on Intellectual Property has also arisen problems, inadequacies and incompatibility to ensure the implementation of commitments on intellectual property in trade agreements to which Vietnam is a member.

To implement the above guidelines and policies, the National Office of Intellectual has coordinated with relevant agencies to change and supplement regulations on intellectual property accordingly. Accordingly, the content of amendments to the Intellectual Property Law focuses on importnt groups of policies with about 100 amended and supplemented articles. Therefore, obstacles and inadequacies such as regulations on licensing of patents, industrial designs, layout designs and plant varieties are the result of scientific and technological tasks using the state budget; regulations relating to procedures for registration and establishment of intellectual property rights and validity of protection titles; regulations on security control for inventions before registration abroad; on compensation to patent owners for delays in marketing authorization of pharmaceutical products; on sound trademark protection; on geographical indication management; on liability for copyright and related rights for enterprises providing intermediary services.

In addition to the Draft of Intellectual Property Law, the Draft Circular is also proposed to stipulate economic – technical norms for a number of public services funded by the state budget, including training and retraining services on Intellectual Property, the service of confirming the validity of international registration of trademarks protected in Vietnam.

Moreover, the National Office of Intellectual also implemented the reform and modernization of the information technology system, reducing the burden of administrative procedures, internal processes to handle administrative procedures; actively review and evaluate administrative procedures and develop a plan for decentralization and simplification of administrative procedures in the field of intellectual property; organize the collection of fees and charges via commercial bank accounts and issue receipts of electronic fees and charges. In addition, the information synchronization for the Government’s National Public Service Portal is also interested in development.

The new Draft Law on Intellectual Property has many additions and adjustments in accordance with practical requirements and is expected to take effect, which will help solve problems that still exist. However, in order to ensure that the enforcement of intellectual property rights is effective and meets the set requirements, businesses need to pay attention and comply well with legal regulations.

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Subject Matters of Intellectual Property Rights

Intellectual property subject matter is divided into three groups included: subject matter of copyright, subject matter of industrial property rights, subject matter of rights to plant varieties. In details:

Protect Intellectual Property Rights in Vietnam

-The subject matter of copyright shall comprise literary, artistic and scientific works; the subject matter of copyright related rights shall comprise performances, audio and visual fixation, broadcasts and satellite signals carrying coded programmes.

-The subject matter of industrial property rights shall comprise inventions, industrial designs, designs of semi-conducting closed circuits, trade secrets, marks, trade names and geographical indications.

-The subject matter of rights to plant varieties shall comprise plant varieties and harvested materials.

Pursuant to Intellectual Property right 2005 (amended in 2009), Intellectual property rights means rights of an organization or individual to intellectual assets comprising copyright and copyright related rights, industrial property rights and rights to plant varieties. For example, software computer program can be protected under Copyright, or name of a product can be protected under Industrial property right that is Trademark or the outward appearance of a car can be protected as Industrial design.

However, intellectual property rights are generated and established based on certain grounds:

Firstly, copyright shall arise at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether or not such work has been published or registered. For instance, a musician is about to write a song, however, the idea of the song still bears in mind of the musician and have not written down yet. At that time, copyright of the musician still does not generate.

Secondly, related rights shall arise at the moment a performance, audio and visual fixation, broadcast or satellite signal carrying coded programmes is fixed or displayed without causing loss or damage to copyright. Related right is the right related to copyright. Proceeding to above example, when the musician has finished writing his song and is sung by the singer on stage, the right of the singer to sing the song of the musician is related right.

Thirdly, different grounds for the generation and establishment of industrial property right. As said above, industrial property rights include 7 subject matters: inventions, industrial designs, designs of semi-conducting closed circuits, trade secrets, marks, trade names and geographical indications. These subjects have different grounds for generating and establishing right:

-Industrial property rights to an invention, industrial design, layout design, mark or geographical indication shall be established on the basis of a decision of the competent State body to grant a protection title in accordance with the registration procedures;

-Industrial property rights to a trade name shall be established on the basis of lawful use thereof;

-Industrial property rights to a trade secret shall be established on the basis of lawful acquirement of the trade secret and maintaining confidentiality thereof.

Fourthly, rights to a plant variety shall be established on the basis of a decision of the competent State body to grant a plant variety protection title in accordance with the registration procedures

It is wise to consult the advice of a IP attorneys in Vietnam to help assist you with your patent. We are a legal marketplace with quality lawyers who are knowledgeable in various areas of the law—including patents.

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Should I hire a Trademark lawyer to file trademark application?

The answer is (almost always) “yes!”

Of the many reasons to hire a trademark lawyer for a Trademark (TM), here are few...

-The process can be time-consuming - particularly conducting an exhaustive search of existing trademarks and handling any office actions that come back. Experienced trademark and IP lawyers have successfully submitted many trademark applications, so they will be able to efficiently file your application, allowing you to focus your energy on other company matters.

Trademark protection in Vietnam

-A comprehensive search of trademarks often must go beyond the USPTO’s (already difficult/confusing to search) Trademark Electronic Search System. This would be extremely difficult to accomplish without an attorney and/or professional search. It is much more cost-effective to hire a lawyer up front, than to hire one to rectify problems when you either get an office action or realize your protection wasn't as robust or complete as you'd understood.

-A trademark lawyer can help you frame your application in the best possible way (by selecting appropriate categories/drafting how it is being used/deciding whether to apply for plain text or logo protection-among many other considerations), making it more likely that your application will be granted on the first try and obtain the maximum possible protection for your company.

-Finally, a trademark or IP lawyer can help you after the process is over to help you craft a long-term IP strategy.

Source: Quora

If you are looking for a high-quality, experienced lawyer to work on trademark issues for your company, you should check out ANT Lawyers to get in touch with some of the best. ANT Lawyers - IP services in Vietnam is supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property in Vietnam.  We have specialized in the preparation and registration of patents, trademarks and designs for our clients.

We assist our clients in all steps of the prosecution phase of IP management.

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What Are Requirements For Sets of photos or Drawings of Industrial Design?

Set of photos or drawings is one the most important documents of the dossier for registration industrial design. According to the laws on intellectual property of Vietnam, what sets of photos or drawings of industrial designs arerequired to satisfy which conditions?

In details, the following conditions are required for the sets of photos or drawings of industrial design:

-Photos or drawings must be clear and well defined; drawings must be presented with unbroken lines; the background of a photo or drawing must be monochrome and contrast with the industrial design; a photo or drawing must show only the product imbued with the industrial design sought to be protected (not accompanied with another product);

Industrial Design in Vietnam

-Photos or drawings must show the industrial design on the same scale. The size of the industrial design shown in photos or drawings must neither be smaller than 90 mm x 120 mm nor larger than 190 mm x 277 mm;

-Photos and drawings must show the industrial design viewed in the same direction and in the following order: three-dimensional picture of the industrial design, front, rear, right-side-left-side, top-down and down-top shadows of the industrial design; shown shadows must be frontispieces.

-For an industrial design with symmetrical shadows, its photos or drawings are not required to show more symmetrical shadows, provided that such is clearly stated in the list of photos and drawings in the description;

-For the industrial design of an expandable product (for instance: box, package), shadows of the industrial design may be replaced with photos or drawings of the industrial design in an expandable state.

-Depending on the complexity of an industrial design, more photos or three-dimensional drawings from other angles, cross-sections or magnified pictures of parts, pictures of knocked down components of the product, etc., may be required to clearly show new and distinctive design features of the industrial design sought to be protected.

-For a product that have different usages (for example: a product with cover or foldable), there must be photos or drawings of its industrial design in different states.

-For the industrial design of a part of a complete product, there must be more photos or drawings illustrating the position for fitting or use of such part on the complete set of product.

-For each variation of the industrial design, there must be a set of photos or drawings fully presenting it according to the above conditions.

-For a set of products, there must be three- dimensional pictures of the whole set and a set of photos or drawings of each product in the set according to the above conditions.

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What Situations Leading to Refusal to Grant of Protection Titles to Patent, Industrial Design, Trademark and Geographical Indication?

When applicant applying for registration of a patent, industrial design, trademark and geographical indication, in some cases, National office of Intellectual Property in Vietnam (NOIP) may refuse to grant their protection titles.

In which cases, the above registration will be refused?

According to the Law on Intellectual Property, the application for registration of a patent, industrialdesign, trademarm and geographical indications will be refused to grantprotection title if they fall into the following cases:

-There are grounds to affirm that the subject matter stated in the application does not fully satisfy the conditions for protection;

-The application satisfies the conditions for the grant of a protection title but does not have the earliest filing date or priority date. In detail, two or more applications for registration are filed by different parties for the same invention, for registration of industrial designs identical with or insignificantly different from each other, for registration of marks identical with or confusingly similar to each other, or for identical or similar goods or services, a protection title may only be granted to the valid application with the earliest priority or filing date amongst applications which satisfy all conditions for the grant of a protection title.

-The application falls into the following case but fail to have the consensus of all applicants: there are two or more applications satisfying all the conditions for the grant of a protection title and having the same earliest priority or filing date, a protection title may only be granted to a single application from such applications with agreement from all applicants. Without such an agreement, all such applications shall be refused the grant of a protection title.

In those above cases, NOIP will conduct the following procedures:

-Notify an intended refusal to grant a protection title, clearly stating the reasons and setting a time-limit for the applicant to make an objection to such intended refusal;

-Notify the refusal to grant a protection title if the applicant makes no objection or makes unjustifiable objection to such intended refusal as mentioned above;

-Grant a protection title and record it in the National Register of Industrial Property if the applicant has made a justifiable objection to the intended refusal as mentioned above.

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What are intellectual property rights? How do they affect society?

Intellectual Property is creation of minds. It is a set of Intangibles owned and legally protected by the creator of the innovative Ideas. To promote the Innovations, creativity and its protection, numerous laws are enacted by Government to let the creators secure exclusivity and ownership rights by registering their innovations and unique ideas. Upon obtaining registration, the creator or owner enjoy exclusive right to use, sell, assign their rights, and avail monetary benefit through it, and also to protect the same.

Protecting Intellectual Property Rights in Vietnam

The most used IPR are:

-Trademarks

-Patents

-Copyright

-Geographical Indication

-Industrial Designs namely

All these above mentioned benefits motivates the creation of new ideas and innovations for the betterment of the society as the new ideas leads to competition in market which helps to improve the quality of goods and services. It also allows the owner of IP to quantify their creation in monetary terms and convert their ideas into business, which also leads to employment generation in the society.

Source: Quora

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What constitutes as an intellectual property?

Intellectual Property is the Property, which has been created by exercise of Intellectual Faculty. It is the result of persons Intellectual Activities. Thus Intellectual Property refers to creation of mind such as inventions, designs for industrial articles, literary, artistic work, symbols which are ultimately used in commerce.

Intellectual Property rights allow the creators or owners to have the benefits from their works when these are exploited commercially. These rights are statutory rights governed in accordance with the provisions of corresponding legislations. Intellectual Property rights reward creativity & human endeavor which fuel the progress of humankind.

The intellectual property is classified into seven categories i.e

-Patent

-Industrial Design

-Trademarks

-Copyright

-Geographical Indications

-Lay out designs of integrated circuits

-Protection of undisclosed information/Trade Secret according to TRIPs agreements.

Source: Quora

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How are intellectual property rights (IPR) infringed?

Regarding intellectual property law, is copyright infringement theft?

A person’s or company’s \intellectual property rights are infringed when someone else uses their intellectual property in ways that only the intellectual property owner has the right to do.

Here is how the four types of intellectual property can be infringed:

-Copyright is infringed when someone copies, records, publishes, distributes, publicly displays or performs, or makes derivative works of someone else’s creative work without permission.

-Trademark rights are infringed when someone uses a competitor’s trademark (or a confusingly similar one) to brand their own product or service.

-Patent rights are infringed when someone makes, uses, or sells, without permission, an invention for which someone else hold’s the patent.

-Trade secrets are infringed when someone publicly reveals a company’s confidential information.

Depending on each jurisdiction’s laws, there may be certain factors considered or exceptions made when determining whether or not intellectual property rights have actually been infringed.

Source: David Mullich

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What is the importance of trademark registration?

Trademark Registration is a legal protection for your Brand name which can’t be copied by any other party Legally. If in case they copy that brand then through the Rights under Intellectual Property Act. The owner of the Trademark can recover the whole profit earned with the name of Registered Trademark.

Register trademark in Vietnam

Many of my clients have said that their lenders or investors felt more comfortable once registration was achieved in important countries.

if you have registrations in major countries such as US , UK you can persuade amazon, eBay etc. to shut down infringing websites without the time and expense of court action.

Customers even search and see you are serious about your rights. It is so cheap to do you look very cheap if you don’t do it.

If you need to prevent infringing use by competitors the court will assume that your right is valid until the other side has proved that it is not. The percentage of registrations found invalid is minuscule. Once you have registration it can be renewed forever as of right. In the UK registration no 1 remains valid as the owners renewed it every ten years since 1876. You have to police the use of the mark, use and renew and then it’s yours forever.

If you have a registration potential licensees have an easy way of finding you. Lenders can give loans secured on registrations.

It is wise to consult the advice of a IP attorneys in Vietnam to help assist you with your trademark. We are a legal marketplace with quality lawyers who are knowledgeable in various areas of the law—including intellectual property rights.

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Can I do trademark registration by myself?

If you are a resident of the country you can register a trademark by yourself in the National Trademark Office. However, the process is very complicated and without appropriate assistance, it is very unlikely to fill out all documents and go through the whole procedure successfully.Because of this, it is better to hire a professional attorney, who is able to simplify the process of registration for you and save your time and money.

 Trademark in Vietnam 

There is a slightly different situation with international registration. Foreign residents have no direct access to the National Trademark Offices in other countries. Due to this if you wish to file for a trademark somewhere outside of your country of residence, you have to hire a professional local attorney to represent your interests there.

There is only one exception WIPO | Madrid – The International Trademark System. However, the system is available only for countries-members (121 countries of the world) and only for residents of these countries, provides very limited protection and requires a considerable amount of time and effort for registration.

First, you apply for a t+ in your country of residence and wait until you obtain a trademark there, after, using WIPO, you file the trademark in other countries through your National Trademark Office and wait for registering your mark there.

However, an experienced attorney is always able to simplify the process of registration, increase the chances and the speed of registration and save your time and money. If you're looking for an affordable  IP attorneys in Vietnam, check out ANTLawyers.vn. ANTLawyers.vn was established to meet these needs by providing fast, effective and economical solutions. Hope that clears things up a bit. Feel free to message me directly to chat further about any other IP questions that you face.

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The provisions of law on copyright infringement

The US-China trade war, especially disputes over intellectual property (IP), once again alarmed business executives about the importance of complying with laws and strengthening management capacity for protecting and avoiding infringement of IP rights of any other country, when participating in global "games". One of the most vulnerable objects of intellectual property is computer software. So, in Vietnam, what are the policies to overcome piracy of computer software?

Copyright in Vietnam

Referring to the operation of the WTO, people often mention the activities of the Trade Council under the General Assembly. There are three trade councils (as known as three "pillars" of the WTO): the Council for Trade in Goods, the Council for Trade in Services and the Council of Trade-Related Aspect of Intellectual Property Rights. In particular, the Council on Trade-Related Aspect of Intellectual Property Rights is responsible for activities that fall within the scope of the  Agreement on Trade-Related Aspect of Intellectual Property Rights (TRIPS Agreement), as well as coordination with other international organizations in the field of IP rights.

According to the request of the TRIPS Agreement, each member state or WTO member must give full and effective protection of intellectual property rights to citizens of other WTO members in accordance with the principle of national treatment and most favored nation. Specifically, members must have a legal system and apparatus to protect intellectual property rights (including: copyright and related rights, patents, business secrets, trademarks, industrial designs, integrated circuit layout design, geographical indications and unfair anti-competitive rights) meet the TRIPS Agreement minimum standards for content, scope, time limits and enforcement of rights.

Besides, the Berne Convention allows authors to enjoy copyright for a lifetime and a minimum of 50 years thereafter. However, countries that comply with the convention are allowed to extend the term of copyright. Regarding the world situation, through free trade agreements, developed countries like the United States and Japan ... want to work towards a stronger enforcement mechanism than the standards set forth in the agreement when it comes to the trade of intellectual property rights. In particular, developed countries tend to "criminalize" intellectual property infringements by expanding the subject of criminal enforcement measures to infringements of inventions, business secrets, trademarks, industrial designs, integrated circuit layout design, ... not just violations of trademarks, copyrights and related rights. Criminally infringed intellectual property rights also tend to be expanded.

Vietnam is increasingly integrating deeply into the economy with the region and the world through free trade agreements with leading partners such as the United States, Japan and the European Union. The enforcement of intellectual property rights by criminal means is one of the important contents in the negotiation of new generation free trade agreements and is particularly emphasized by development partners. In recent years, the law on enforcement and protection of intellectual property rights, including enforcement by criminal measures, has been constantly strengthened, improved and contributed to improving the effectiveness of enforcement activities to protect IP rights. With the efforts of the Government, the activities of protecting copyright and related rights have made significant progress. The State has issued many legal documents on this field, the Vietnamese laws have been developed and completed from the practice of management and administration for copyrigh, acquired international standards, met the requirements to promote effective protection and international integration.

Regarding the protection of intellectual property rights, especially for computer software, Vietnam has signed many bilateral and multilateral international treaties related to copyright and related rights. Accordingly, Vietnam has an obligation to protect copyright and related rights under international treaties to which Vietnam is a member. At the Resolution of the 9th Plenum of the Party Central Committee, Session XI (Resolution No. 33-NQ / TW) on building and developing culture and people of Vietnam to meet the requirements of sustainable development of the country, stated: “Raising awareness of the implementation of legal provisions on copyright and related rights in the whole society. Strengthen and enhance the operational efficiency of copyright management agencies and agencies from central to local levels.”

Criminal Code No. 12/2017 / QH14 amending and supplementing a number of articles of the Criminal Code No. 100/2015 / QH13, effective from January 1, 2018, demonstrating the determination of the Vietnamese Government to strictly enforce against copyright and related rights violations, including computer software copyrights. Under the new provisions of the amended Criminal Code, for the first time, commercial legal entities shall be criminally responsible for crimes infringing copyright and related rights. Article 225 of the amended Criminal Code has introduced sanctions to overcome violations of copyright and related rights. Including  computer software  copyright. With the new strict penalty framework that the Criminal Code 2015 will apply to commercial entities that intentionally violate computer software copyrights in particular and copyrights in general, the rate of software piracy Vietnam will be able to significantly reduce, create a fair competitive business environment for businesses, as well as promote the development of the socio-economy in the context of Vietnam's deep and broad integration into the international economy.

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How can I know what is an important patent?

How can I know what is an important patent?

-An important patent is one that does some of the following:

Patent consultant in Vietnam

-Earns a lot of licensing income.

-Sells for a lot of money.

-Lets the owner make a lot of money while preventing competition from doing the same.

-Inventions that are valuable to society and the world at large are important inventions.

-If the patent is sought, issued, and exploited for unconscionable profit, then the patent is

important, but in a negative way.

-If the invention is important and the inventor wants to make it freely available, the inventor doesn’t seek a patent, but publicly discloses the details. That’s what IBM did with the scanning tunneling microscope, making it freely available to the world.

Source: Quora

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How can I protect my idea for an app?

Patents can offer tech startups many benefits, assuming you have something patentable. They attract investors and can deter competitors. A startup with patent protection is more valuable to companies interested in forming a joint venture or making an acquisition as well. Further, a startup has the ability to license its patent, providing a business another way of generating funding while expanding its market simultaneously. The problem is that you can’t patent an idea; you need something tangible.

Patent Consultant in Vietnam

If you prefer to save some money, confidentiality agreements and trade secret protection may work just as well as costly patent registration, especially when combined with exceptional innovation design and speed. All employees, board members and advisors should be required to sign agreements obligating them to assign all business-related IP to the startup. You will also want to extend IP protection through agreements with non-employees, including vendors, outsourced designers, consultants, engineers, and even customers.

Source: Quora

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What is the Copyright Registration Process Workflow?

Copyright is defined as a legal right of the owner of intellectual property. It is an exclusive right of the original creator to reproduce the work. Copyright provides the exclusive right to the creator of the original material to further develop for a given period of time.

Copyright Law Firm in Vietnam

Copyright is an exclusive right granted by the law to the creators of literary, artistic, musical or dramatic works and to film producers as well. It also includes right related to reproduction, communication to the public, translation of work. It provides safeguards to the author for their creations, thereby protecting their creativity.

When a person creates an original product which requires a significant mental activity to create, then it needs to be protected from unauthorized duplication. Copyright can be done of only unique creations related to art, poetry, musical lyrics, novels, films, graphic design, architectural etc. It is considered to be original in case the author created it from their independent thinking. Copyright can be voluntarily registered by the original owner, preventing others from using or replicating it.

Copyright provides protection to the efforts of artists, writers, designers, musicians, and architects and it also promotes others to create.

Any type of work cannot be copyrighted. Copyright does not protect ideas, concepts and brand names, logo, domain names can also not be protected. Any work that requires copyright must be in intangible form.

Copyright, trademark, patent are generally used interchangeably, however, Copyright, Trademark and Patent are different forms of protection.

Trademark protects products which are used to differentiate the product of one with the product of another. It includes words, logos, symbols, and brand names.

Patents protect inventions of the inventor for a limited period of time, it includes industrial processes, machines & chemicals.

Copyright registration can be done in relation to published or unpublished work. In the case of registered unpublished work, a manuscript is required to be sent along with the application for affixing the stamp in proof of the work having been registered. If two copies of the manuscript have been sent then one copy of the manuscript duly stamped will be returned while the other copy will be retained by in the office for record purpose and will be kept confidential. Instead of a manuscript an applicant can also send the extracts from the unpublished work and can ask for the return after being stamped with the seal of the corporate office. After that applicant may apply for the changes in the Register of Copyright with the prescribed fees.

Every type of literary or artistic work can be copyrighted in relation to a website or computer program. It ensures protection for the creator and provides significant rights over their creation.

Registration Procedure

For the purpose of registration of the copyright an application can be made in the prescribed format as prescribed in the first schedule of the rules;

An application shall be made with the requisite fees prescribed;

The application must be signed by the applicant in whose favor the power of attorney has been executed;

The separate application is required to be filed for the registration of each work.

Filing of an Application

After filing a copyright application with the complete details, the author or owner has to wait for a mandatory period of 30 days for any objection that can be filed in the copyright office against the applicant.

In the case of any objection, it will take another one month to take a decision regarding whether the work can be registered with the registrar of copyrights after giving the opportunity of being heard.

Examination

If within the said period of 30 days no objection is filed then the application shall be examined by the examiner or in the case of any objections raised by the examiner for any further documentation required. After this response to the examination report has to be filed within 30 days.

Registration

After the objections are overcome to the satisfaction of the copyright office, A copyright registration certificate is issued.

Copyright Registration Process Workflow

The Term of Copyright Granted

The term of protection granted to the copyright owner depends on the type of work that needs to be protected. Copyright protection granted in relation to literary, musical or artistic work which extends to the period of a lifetime of the author and 60 years from the year in which the author dies. In case the work has not been performed during the lifetime of the author than the Copyright Registration protection shall be continued for a period of 60 years from the end of the year in which any activity is done in relation to work. Films or the computer programs are protected for a period of 60 years from the end of the year in which work is made available to the public with the consent of the owner whereas.

Source: Quora

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