June 16e, the Vietnamese National Assembly passed a law amending and supplementing a number of articles of the Intellectual Property Law (the amended Intellectual Property Law). Accordingly, the amended Intellectual Property Law will enter into force on January 1.st2023, with the exception of the regulations on the protection of sound marks and agricultural chemical test data, which will come into force on January 14 respectively.e2022 and January 14e, 2024, to comply with the obligations set out in the CPTPP agreement. Since its implementation 17 years ago, the law has been amended for the third time. While the first amendment is from 2009, the last is from 2019. The 2022 Amendments and Supplements are the most comprehensive revision, with over 100 sections amended and supplemented. The amended Intellectual Property Law is enacted to resolve pragmatic shortcomings throughout the 17 years of its implementation and ensure compliance with intellectual property-related commitments in FTAs in which Vietnam participates, in particular the Agreement of Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) and the Europe Agreement. EU-Vietnam Free Trade Agreement (EVFTA). Accordingly, the amended Intellectual Property Act covers related matters, including changes and additions to definitions; additions to state policies on intellectual property rights; Intellectual Property Amendments and Supplements; IP representation activity; Intellectual property valuation and regulation of intellectual property enforcement. The actual content of the amended IP Law 2022 consists of:
In matters of copyright and related rights
The amended content focuses on five important issues, including regulatory changes and additions:
- The rights of an author, a performer, a producer of phonograms/video recordings, a broadcaster; ownership of copyright or related rights and the principles of distribution of royalty payments;
- Amend and clarify provisions on limitations and exemptions of copyright and related rights to ensure benefits between rights holders, exploiting individuals/organizations and public works for entertainment;
- Amend, complete and clarify the rules of an organization with collective representation holding copyright and related rights in accordance with the Civil Code and international practices;
- Modification of the regulations relating to the registration of copyrights and neighboring rights; the reissue, modification and termination of the validity of copyright and neighboring rights certificates;
- Changing and clarifying regulations on copyright and related rights infringement avoids duplication or oversight of such actions, ensuring enforcement and compliance with international commitments.
With respect to industrial property, the amended content focuses on six important issues, including:
- Regarding patents: Modifications and additions to the regulations which refuse to grant titles of protection or cancel the validity of a patent for invention. Amendments and additions to the regulations on the right to apply or use the invention, industrial designs and designs of a semiconductor closed circuit created by the state budget. Supplements to the regulations on the mechanisms for the substantive examination of a patent application in the form of an abbreviated procedure.
- Regarding industrial designs: Amendments to the regulations concerning the application file for an industrial design or model in the direction of simplifying the requirements for identifying the design or model. Supplements to regulations to allow deferment of publication of an industrial design application.
- Regarding brands: Additions to the regulations on the protection of the sound mark. Complements on regulations to manage the conflict between trademarks and other objects, such as names of plant varieties or names under the protection of copyright and related rights. Supplements on regulations regarding invalidation, cancellation of trademark registration certificate.
- Regarding geographical indications: Complements on the regulations to clarify the possible protection of homonymous geographical indicators. Changes in the regulations on the rights of organizations authorized by the State to manage and use geographical indications. Supplements on the regulations relating to the right to request foreign geographical indications.
- Regarding industrial property representation services and industrial property expertise: Amends and completes the regulations in order to ensure a more open way to create competition in the provision of industrial property representation services (distribution of industrial property representatives by sector, relaxation of the conditions for granting a license to act as an industrial property representative depending on the fields). Amendments to the valuation regulations in the direction of a clear definition of the fields of application between the valuation of intellectual property and the judicial valuation of intellectual property. clarifying the factual significance of an IP valuation finding).
- Some administrative and procedural issues: Amends and completes the regulations on the opinion of a third person in the sense of clarifying these opinions in two streams (reference opinions and objective opinions) like the model of other countries to speed up the process of examining applications. Complements on the specific regulations concerning complaints in the field of industrial property to be consistent with the reality of the resolution of complaints in this field (it is necessary to pay a review fee if the content of the complaint requires a review. The deadline of the complaint is not applicable if a reconsideration is necessary; allow the submission of a complaint via the IP representation, etc.).
- Regarding plant varieties: The amendments focus on three fundamental issues, namely: supplements to the regulations concerning a variety of plant name. Clarified the rules that state administrative agencies require the author to change the variety of their plant names to ensure that the name is not inconsistent with the law. Specific requirements in which entities are required to submit forms through Plant Variety Representatives. Commercial Terms for Plant Variety Representation Services. Complements on the regulations relating to plant varieties discovered or selected following a scientific and technological project financed by the State budget (registration fee, owner, obligations of the organizations in charge, reserves in certain cases the rights of state, etc.). Amendments and additions to the scope of plant variety rights: temporary rights, limits of ownership of the title holder and infringements of plant variety rights.
Regarding the enforcement of intellectual property rights
The amendments mainly focus on four issues:
- Amendments and additions to the regulations regarding the rights holders’ self-protection rights (the addition of the right to apply technical measures to protect the rights and administrative information on the rights);
- Supplements for assumptions of copyright, neighboring rights that guarantee the proper application of these rights;
- Complements regulations on legal liability and immunity, with exemptions for companies that provide agency services that enforce copyright and related rights in the digital environment;
- Complements proactive customs suspension measures aligned with suspension at the request of the right holder to strengthen control of counterfeits and compliance with international obligations.
With the above modifications and additions, it is hoped that the Intellectual Property Law will overcome its shortcomings to meet the requirements set forth in the economic and social development of Vietnam. Furthermore, to create a powerful driving force for research and innovation and ensure an adequate and effective legal framework to protect, exploit and enforce intellectual property rights in Vietnam, as well as a full guarantee of compliance with international agreements of Vietnam, thus ensuring a more globalized economy.