THE NATIONAL ASSEMBLY

SOCIALIST REPUBLIC OF VIETNAM Independence – Freedom – Happiness

No. 80/2006/QH11

LAW

ON TECHNOLOGY TRANSFER

NATIONAL ASSEMBLY OF THE SOCIALIST REPUBLIC OF VIETNAM LEGISLATURE XI, 10TH SESSION

(from 17 October to 29 November 2006)

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam as amended byResolution 51-2001- QH10 passed by Legislature X of the National Assembly at its 10thSession on 25 December 2001;

This Law regulates technology transfer.

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope
This Law regulates technology transfer activities in Vietnam, from Vietnam to overseas, andfrom overseas to Vietnam; the rights and obligations of entities1 participating in technology transfer activities; the authority of State administrative bodies; and measures forencouragement and promotion of technology transfer activities.
Article 2. Applicable entities
This Law shall apply to Vietnamese entities, Vietnamese residing overseas, and foreignentities participating in technology transfer activities.
Article 3. Interpretation of terms
In this Law, the following terms shall be construed as follows:
1. Technical know-how means information accumulated and discovered during the process ofresearch, production and business by the technology owner, which information is decisivefor the quality and competitive capacity of the technology and technological products.
2. Technology means solutions, processes and technical know-how, whether attached orunattached to tools and facilities, used to convert resources into products.
3. High technology means technology with a high content of scientific research and technological development; which creates products and services with high quality and highadded value; and which is capable of forming a new manufacturing or services industry or of modernizing an existing manufacturing or services industry.
4. New technology means technology created for the first time in Vietnam.
5. Progressive technology means technology of the first rank and of a higher technologicalstandard than the standard of current technology of the same type.
6. Establishment fostering technology [and/or] establishment fostering technologicalenterprises means a place with favourable conditions in terms of infrastructure and supplyof necessary services and assistance in order to foster technology [and/or] technological enterprises.
7. Technology markets, technology fairs and exhibitions, and technology transaction centresmeans places for the display and introduction of technology, for the purchase and sale oftechnology, for the promotion of technology transfer and for the provision of other technology transfer services.
8. Technology transfer means transfer to a transferee of the ownership right or the right touse either a part or the whole of a technology by the party with the right to transfer such technology.
9. Technology transfer in Vietnam means transfer of a technology between entities operatingwithin the territory of Vietnam.
10. Technology transfer from overseas into Vietnam means an entity operating overseas transfers a technology to an entity operating within the territory of Vietnam.
11. Technology transfer from Vietnam to overseas means an entity operating within the territory of Vietnam transfers a technology to an entity operating overseas.
12. Technology transfer services means support activities during the process of seeking,entering into and performing technology transfer contracts.
13. Appraisal of technology means the activity of determining the standard, the value and theeconomic effectiveness of a technology and its socio-economic and environmental impact.
14. Valuation of technology means the activity of determining the price of a technology
15. Assessment of technology means the activity of inspecting and rating the specifications of transferred technology as compared to the specifications of such technology as stipulated in the technology transfer contract.
16. Technology transfer activities comprise both technology transfer and technology transfer services.
17. Technology transfer brokerage means the activity of assisting parties with technology and parties who need technology to other parties with whom to sign technology transfer contracts.
18. Technology transfer consultancy means the activity of assisting parties to selecttechnologies and to negotiate, sign and perform technology transfer contracts.
19. Fostering technology means the activity of assisting the creation and perfection oftechnology which has the potential for practical application and commercialization from technological ideas or from results of scientific research and technological development.
20. Fostering technological enterprises means the activity of assisting entities to perfecttechnology, to raise investment capital, to organize production and business, to conductmarketing, to conduct legal procedures and providing other essential services in order to setup enterprises using newly created technology.
21. Promotion of technology transfer means the activity of promoting, creating and seekingopportunities for the transfer of technology; providing services of advertising, exhibiting and introducing technology; and organizing technology markets, technology fairs and exhibitionsand technology services centres.
Article 4 Applicable law
1. Technology transfer activities must comply with the provisions of this Law and otherrelevant laws; in the case of specialized technology transfer activities as stipulated inanother law, the provisions of such other law shall apply.
2. Where an international treaty of which the Socialist Republic of Vietnam is a member contains provisions different from those in this Law, then the provisions of such international treaty shall apply.
3. In the case of technology transfer activities with foreign elements, the parties may agree in the contract on the application of foreign law or international commercial practice, oncondition that such foreign law or international commercial practice is not contrary to thefundamental principles of the law of Vietnam.
Article 5. State policy on technology transfer activities:
1. To secure the lawful interests of entities conducting technology transfer activities and to facilitate such entities in order to service the requirements for rapid and sustainable socio-economic development of the country.
2. To prioritize the development of high technology and progressive technology; to develop technological manpower simultaneously with investment in renovation of technology.
3. To strongly develop technology markets; to encourage and promote activities of fosteringtechnology and fostering technological enterprises; to promote the conversion of researchresults into production and business.
4. To concentrate on improvement of the quality and effectiveness of technology transferactivities in rural areas and mountainous areas; to encourage and facilitate such activitiesin areas with difficult socio-economic conditions and areas with specially difficult socio-economic conditions.
5. To raise the effectiveness of international co-operation and to facilitate entities to engage in international co-operation during technology transfer activities.
Article 6. Contents of State administration of technology transfer activities:
1. To promulgate legal instruments on technology transfer and to organize their dissemination and implementation.
2. To formulate strategies, plans, programs, measures, regimes and policies for the promotion of technology transfer activities and for the renovation of technology, and to directimplementation of same.
3. To exercise uniform administration of technology transfer activities.
4. To conduct international co-operation regarding technology transfer activities.
5. To conduct checks and inspections of compliance with the law on technology transfer; to resolve complaints and denunciations, and to deal with breaches of the law on technology transfer.
Article 7. Technology objects which are eligible for transfer
1. Technology objects which shall be eligible for transfer shall be a part or the whole of thefollowing technologies:
(a) Technical know-how;
(b) Technical information about technology shall be permitted to be transferred in the form of technological plans, technological processes, technical solutions, formulae, technical specifications, drawings, technical maps, computer programs and information files;
(c) Solutions for production optimization and for renovation of technology.
2. Technology objects shall be permitted to be transferred whether attached or unattached toindustrial property objects.
Article 8. Right to transfer technology
1. A technology owner shall have the right to transfer the ownership or right to use such technology.
2. Any entity which is permitted by the technology owner to transfer the right to use suchtechnology shall have the right to transfer the right to use such technology.
3. Any entity with technology being an industrial property object for which the term ofprotection has expired or which is not protected in Vietnam shall have the right to transfer the right to use such technology.
Article 9. Technologies the transfer of which is encouraged
A technology the transfer of which is encouraged means high technology or progressivetechnology which satisfies one of the following requirements:
1. It creates new products which are highly competitive.
2. It creates a new industry or new services.
3. It saves energy or raw materials.
4. It uses new energy resources or recycled energy.
5. It protects the health of humans.
6. It prevents or fights natural disasters or epidemics.
7. It results in clean production or is environmentally friendly.
8. It develops traditional crafts and industries.
Article 10. Technologies the transfer of which is restricted
Transfer shall be restricted in the case of a technology aimed at any one of the following objectives:
1. Protection of the national interest.
2. Protection of the health of humans.
3. Protection of national cultural values.
4. Protection of animals and plants, natural resources or the environment.
5. Implementation of a provision in an international treaty of which the Socialist Republic ofVietnam is a member.
Article 11. Technologies the transfer of which is prohibited:
1. A technology which fails to satisfy the requirements stipulated by the laws onoccupational safety, labour hygiene, protection of human health, and protection of natural resources and the environment.
2. A technology which creates products causing harm to socio-economic development andhaving an adverse impact on national defence and security or social order and safety.
3. A technology not permitted to be transferred pursuant to a provision in an international treatyof which the Socialist Republic of Vietnam is a member.
4. A technology on the list of State secrets, unless a provision of law provides otherwise.
Article 12. Forms of transfer of technology
The transfer of a technology shall be permitted to be implemented via the following forms:
1. An independent technology transfer contract.
2. A section on technology transfer in the following projects or contracts:
(a) An investment project;
(b) A franchising contract;
(c) A contract transferring industrial property rights;
(d) A contract for purchase and sale of machinery or equipment to which the transfer of a technology is attached.
3. Other forms of transfer of technology as stipulated by law.
Article 13. Conduct strictly prohibited during technology transfer activities:
1. Taking advantage of technology transfer activities in order to cause harm to nationaldefence and security interests, or to the lawful rights and interests of entities.
2. Destroying natural resources and the environment; causing harm to the health of thepeople, or to Vietnamese fine customs and ethics.
3. Transferring a technology on the list of technologies the transfer of which is prohibited;unlawfully transferring a technology on the list of technologies the transfer of which isrestricted; transferring a technology when a clause in the technology transfer contractstipulates that transfer to a third party is not permitted.
4. Breaching the technology transfer right in terms of ownership and use of the technology.
5. Acting fraudulently during formulation and performance of a technology transfer contract or of a technology transfer services contract, or during preparation of a statistical report on technology transfers.
6. Impeding or refusing the supply of information about technology transfer activities relevant to the contents of a check or inspection by a competent State administrative body.
7. Taking advantage of one’s duties or powers in order to seek a bribe or to cause difficulties,or failing to promptly implement requests in accordance with law from entities participating in technology transfer activities.
8. Disclosing technological secrets, or impeding technology transfer activities.
9. Other conduct which is strictly prohibited by the law on technology transfer.
Chapter II

TECHNOLOGY TRANSFER CONTRACTS

Article 14. Principles for signing and performing technology transfer contracts
1. A technology transfer contract shall be entered into via the form of a written contract orsome other written form with equivalent validity such as a telegram, telex, facsimile or datamessage or other form as stipulated by law.
2. The language in a written technology transfer contract shall be as agreed by the parties,but in the case of a transaction in Vietnam there must be a contract in Vietnamese. TheVietnamese and the foreign language versions of a contract shall be of equal validity.
3. A technology transfer contract shall be entered into and performed in accordance with theprovisions of this Law, the Civil Code, the Commercial Law and other relevant laws.
Article 15. Contents of technology transfer contracts
Parties entering into a technology transfer contract may reach agreement on inclusion of the following particulars:
1. Name of the technology transfer contract, clearly stating the name of the transferred technology.
2. The technology object which is being transferred and the products created from the technology.
3. Transfer of the ownership of [and/or] right to use the technology.
4. Method of transfer of the technology.
5. Rights and obligations of the parties.
6. Price and mode of payment.
7. Date of effectiveness and term of validity of the contract.
8. Definition of terms and concepts (if any) used in the contract.
9. Plan and schedule for transfer of the technology, and location for implementing thetransfer of the technology.
10. Liability to provide a warranty for the transferred technology.
11. Penalties for breach of contract.
12. Liability for breach of contract.
13. Applicable law for dispute resolution.
14. Tribunal for dispute resolution.
15. Other agreements, on condition that they are not contrary to the law of Vietnam.
Article 16. Transfer of ownership of technology
1. Transfer of ownership of technology means the owner of a technology transfers theentire right of possession, the right to use and the right to dispose of such technology toanother entity in accordance with article 18 of this Law.
2. If a technology is a protected industrial property rights object, then transfer of ownership of such technology must be implemented together with transfer of ownership of the industrialproperty rights in accordance with the law on intellectual property.
Article 17. Transfer of right to use technology
1. Transfer of the right to use a technology means an entity as stipulated in article 8 of thisLaw permits another entity to use the technology in accordance with clause 2 of this articleand article 18 of this Law.
2. The scope of transfer of the right to use a technology shall be as agreed by the parties, comprising:
(a). Exclusive or non-exclusive right to use the technology;
(b) Permission to re-transfer the right to use the technology to a third party or a prohibitionfrom doing so;
(c) Fields of use of the technology;
(d) The right to improve the technology, and the right to receive information aboutimprovements to the technology;
(dd) The exclusive or non-exclusive right to distribute and sell products created from thetransferred technology;
(e) Geographical area in which it is permitted to sell products created from the transferred technology;
(g) Other rights related to the transferred technology.
3. If a technology is a protected industrial property rights object, then transfer of the right touse such technology must be implemented together with transfer of ownership of industrialproperty rights in accordance with the law on intellectual property.
Article 18. Forms of transfer of technology:
1. Transfer of data about the technology.
2. Provision of training the technology transferee for a specified period stipulated in the technology transfer contract to enable the transferee to properly understand and master thetechnology.
3. Appointment of a technical consultancy expert to enable the technology transferee to put the technology into production with the technological and product quality satisfying thespecifications and schedule stipulated in the technology transfer contract.
4. Other forms of transfer as agreed by the parties.
Article 19 Time of effectiveness of technology transfer contracts
1. The time of effectiveness of a technology transfer contract shall be as agreed by theparties, except for the case stipulated in clause 2 of this article; if the parties do not agreeon such time, then the contract shall be of full force and effect when the last party completes signing the contract.
2. A contract for the transfer of a technology on the list of technologies the transfer of which isrestricted shall only take effect after the competent State body has issued a technology transferpermit.
Article 20. Rights and obligations of technology transferors
1. A technology transferor shall have the following rights:
(a) To require the technology transferee to correctly implement the contractual commitments;
(b) To request the competent State body to protect lawful rights and interests related to the transferred technology;
(c) To receive full payment in accordance with the contract and to enjoy other rights andinterests as agreed in the contract; to enjoy incentives stipulated in this Law and in other relevant laws;
(d) To require the technology transferee to apply measures to remedy, and to paycompensation for loss and damage if the technology transferee fails to correctly dischargethe contractual obligations, except where the parties agree otherwise;
(dd) To lodge a complaint or to institute legal proceedings for breach of contract in accordancewith law.
2. A technology transferor shall have the following obligations:
(a) To guarantee that the right to transfer the technology is lawful and is unrestricted by thirdparty rights, except where the parties agree otherwise;
(b) To correctly implement the contractual commitments; to pay compensation for loss and damage suffered by the technology transferee or third parties as a result of breach of contract;
(c) Upon request of another negotiating party, to maintain confidentiality of informationobtained during the process of negotiating and signing the technology transfer contract;
(d) To notify the technology transferee and to take appropriate measures on discovery of any technical difficulties which result in the transfer results failing to satisfy the requirements stipulated in the contract; to pay compensation for loss and damage sustained by the technology transferee or third parties and due to failure to perform the contractualcommitments;
(dd) To conduct procedures applying for a technology transfer permit in the case of a transferfrom Vietnam to overseas of a technology on the list of technologies the transfer of which is restricted;
(e) Not to agree on clauses restricting competition which are prohibited by the Law onCompetition;
(g) To discharge financial and other obligations as stipulated by law.
Article 21. Rights and obligations of technology transferees
1. A technology transferee shall have the following rights:
(a) To require the technology transferor to correctly implement the contractual commitments;
(b) To request the competent State body to protect lawful rights and interests related to the transferred technology;
(c) To hire domestic or foreign entities to provide technology transfer services in accordancewith law;
(d) To require the technology transferor to apply measures to remedy, and to paycompensation for loss and damage if the technology transferor fails to correctly discharge the contractual obligations, except where the parties agree otherwise;
(dd) To lodge a complaint or to institute legal proceedings in accordance with law for breach of contract;
(e) To enjoy the incentives stipulated in this Law and in other relevant laws.
2. The technology transferee shall have the following obligations:
(a) To correctly implement the contractual commitments; to pay compensation for loss and damage suffered by the technology transferor or third parties as a result of breach of contract;
(b) Upon request of another negotiating party, to maintain confidentiality about the technologyand other information obtained during the process of negotiating and signing the technology transfer contract;
(c) To conduct procedures applying for a technology transfer permit in the case of a transferfrom overseas into Vietnam of a technology on the list of technologies the transfer of which is restricted;
(d) To discharge financial and other obligations as stipulated by law.
Article 22. Price of and method of payment for technology transfer
1. The payment price stipulated in a technology transfer contract shall be as agreed by the parties.
2. Payment must be made by one or a combination of the following methods:
(a) One-off payment or payments in instalments in money or by goods;
(b) Transfer of the value of the technology as capital contribution to an investment projector to capital of an enterprise as stipulated by law;
(c) Other payment methods as agreed by the parties.
Article 23. Procedures for issuance of a technology transfer permit in the case of a technologyon the list of technologies the transfer of which is restricted
1. Any entity with a need to receive or to be transferred a technology on the list oftechnologies the transfer of which is restricted shall forward the application file stipulated inarticle 24.1 of this Law to the State body authorized to issued technology transfer permits.
2. The State body authorized to issue technology transfer permits shall provide writtenapproval within a time-limit of thirty (30) days from the date of receipt of a valid applicationfile. In a case of refusal to approve, the State body shall provide a written response specifying its reasons for the refusal.
3. After receipt of written approval from the competent State body, the entity with the need toreceive or to be transferred the technology shall sign a technology transfer contract.
4. After the technology transfer contract has been signed, one of the signatories shall forward the application file stipulated in article 24.2 of this law to the State body authorized to issuetechnology transfer permits.
5. Within a time-limit of ten (10) days from the date of receipt of a valid application file, theState body authorized to issue technology transfer permits shall be responsible to considerthe consistency of the technology transfer contract with the items stipulated in the writtenapproval in order to issue a decision on issuance of a permit. In a case of refusal to issue apermit, the State body shall provide a written response specifying its reasons for the refusal.
6. If there is a need to change the items stipulated in the technology transfer permit duringthe process of performance of the technology transfer contract, then one of the signatoriesto the contract must apply for a new permit.
Article 24 Application files for approval of technology transfer, and application files for issuance of a technology transfer permit in the case of a technology on the list of technologies thetransfer of which is restricted
1. An application file for approval of the transfer of a technology on the list of technologies thetransfer of which is restricted shall comprise:
(a) Written request to enter into a technology transfer contract;
(b) Document on the legal status of the applicant;
(c) Explanatory statement on the technology in accordance with regulations of the Ministry of Science and Technology.
2. An application file for issuance of a technology transfer permit in the case of a technologyon the list of technologies the transfer of which is restricted shall comprise:
(a) Written request for issuance of a technology transfer permit;
(b) Written approval from the competent State body to transfer the technology;
(c) Document on the legal status of the parties to the technology transfer contract;
(d) Original or copy of the technology transfer contract;
(dd) List of technological data and technological equipment (if any) attached to the technology transfer contract.
Article 25. Right to registration of technology transfer contracts and procedures for registration
1. The parties entering into a technology transfer contract shall have the right to register suchcontract with the competent State administrative body for science and technology as thebasis for the parties to enjoy the incentives stipulated in this Law and in other relevant laws.
2. An application file for registration of a technology transfer contract shall comprise:
(a) Request for registration of the technology transfer contract;
(b) Original or copy of the technology transfer contract
3. Within a time-limit of fifteen (15) days from the date of receipt of a valid application file, the competent State administrative body for science and technology shall consider and issue adecision on issuance of a certificate of registration of the technology transfer contract.
Article 26. Obligation to maintain confidentiality during issuance of technology transfer permits and issuance of certificates of registration of technology transfer contracts
The bodies and individuals responsible for issuance of technology transfer permits and of certificates of registration of technology transfer contracts shall also be responsible to maintain confidentiality of the technologies and business secrets in application files for issuance of technology transfer permits and in application files for registration of technology transfer contracts.
Article 27 Dealing with breaches of technology transfer contracts
1. The following sanctions shall apply to entities in breach of a technology transfer contract:
(a) Fine for a breach;
(b) Payment of compensation for loss and damage;
(c) Compulsory correct performance of the contract;
(d) Temporary stay of performance of the contract;
(dd) Suspension of performance of the contract;
(e) Rescission of the contract;
(k) Other measures as agreed by the parties, on condition that such other measures are not contrary to the fundamental principals of the law of Vietnam, not contrary to international commercial practice, nor contrary to an international treaty of which the Socialist Republic of Vietnam is a member.
2. The measures of temporary stay of performance, suspension of performance and rescission of a contract shall not apply to a non-fundamental breach of a technology transfercontract, except where the parties agree otherwise.
3. The parties may agree to a limit on the amount of compensation payable for loss and damage resulting from breach of a technology transfer contract, unless a provision of lawprovides otherwise.
4. Application of the sanctions stipulated in clause 1 of this article shall be implemented inaccordance with law.
Chapter III

TECHNOLOGY TRANSFER SERVICES

Article 28. Technology transfer services
1. Technology transfer services shall comprise:
(a) Technology transfer brokerage;
(b) Technology transfer consultancy;
(c) Appraisal of technology;
(d) Valuation of technology;
(dd) Assessment of technology;
(e) Promotion of technology transfer.
2. Entities conducting technology transfer services business must have a business registration certificate for technology transfer services.
Article 29 Principles for entering into and performing technology transfer services contracts
1. A technology transfer services contract shall be entered into via the form of a writtencontract or in another form as stipulated by law.
2. A technology transfer services contract shall be entered into and performed in accordancewith the provisions of this Law, the Civil Code, the Commercial Law and other relevant laws.
Article 30. Rights of entities conducting technology transfer services business
Entities conducting technology transfer services business [services providers] shall have the following rights:
1. To conduct technology transfer services activities for which the services provider has business registration.
2. To require services users to supply necessary information and data to enable the services provider to provide the technology transfer services.
3. To employ domestic and foreign associates in order to assist the technology transfer services activities of the services provider.
4. To receive fees and other benefits for the provision of services in accordance with an agreement.
5. To require services users to pay compensation for loss and damage caused to theservices provider and due to the fault of such services users.
6. To conduct [business] co-operation and joint ventures with domestic and foreign entitiesin order to conduct technology transfer services activities.
7. To participate in domestic, regional and international professional associations in accordance with law.
Article 31. Obligations of entities conducting technology transfer services business
Entities conducting technology transfer services business [services providers] shall have the following obligations:
1. To provide technology transfer services correctly in accordance with the registeredbusiness items of such services provider.
2. To strictly perform signed technology transfer services contracts.
3. To be liable to services users for the results of implementation of technology transfer services contracts by the services provider.
4. To pay compensation for loss and damage caused to services users and due to the fault of the services provider.
5. To maintain confidentiality of information in accordance with the agreements in atechnology transfer services contract.
6. To discharge financial and other obligations as stipulated by law.
Article 32. Technology assessment services
1. Technology assessment services means either a business or non-business activityconducted in the form of an assessment of a technology in order to verify the actual status ofa transferred technology and other matters related to such transfer at the request of one or more parties to a technology transfer contract or at the request of a competent State administrative body.
2. Entities providing technology assessment services and parties requesting assessment of a technology must comply with the provisions of this Law and other relevant laws.
Article 33. Criteria for technology assessors
Technology assessors must satisfy all the following criteria:
1. Have college, university or higher qualifications and have the appropriate expertise for the requirements and field of technology to be assessed.
2. Have at least three years’ working experience in the field of technology to be assessed.
3. Have an assessor’s certificate in the field of technology to be assessed if the law stipulatesthat such a certificate is necessary.
Chapter IV

INCENTIVES FOR ENCOURAGING AND PROMOTING TECHNOLOGY TRANSFER

Article 34. Development of the technology market
1. The State encourages entities to participate in development of the technology market in thefollowing forms:
(a) By investing in construction of infrastructure for the technology market comprisingtechnology markets, technology fairs and exhibitions, technology transaction centres, establishments fostering technology, establishments fostering technological enterprises and other forms;
(b) By announcing, disseminating, presenting and introducing technologies and byparticipating in domestic and overseas technology markets, technology fairs and exhibitions.
2. The Ministry of Science and Technology shall co-ordinate with ministries, ministerial equivalent bodies, Government bodies and people’s committees of provinces and citiesunder central authority (hereinafter referred to as provincial people’s committees) to takemeasures to encourage and create favourable conditions for domestic and foreign entities to invest in holding technology markets, technology fairs and exhibitions, and to invest in otherforms of technology transfer; and shall take measures to attract all economic sectors to participate in development of the technology market.
Article 35. Encouraged technology transfer to rural areas, mountainous areas, areas withdifficult socio- economic conditions and areas with specially difficult socio-economic conditions:
1. Technologies in the fields of protection and development of gene sources; cross breeding, and improving and raising the economic value of plant varieties and animal varieties.
2. Technologies for the production, preservation and processing of agricultural, forestry and aquaculture products.
3. Technologies for prevention and treatment of natural disasters and epidemics, and for community health care.
4. Technologies for prevention and treatment of epidemics affecting plant varieties and animal varieties.
5. Technologies using recycled energy.
6. Technologies supplying fresh water and protecting the environment.
7. Technologies for improvement of output, quality and effectiveness of traditional products of craft villages.
Article 36. Responsibilities of entities during technology transfer activities in rural areas,mountainous areas, areas with difficult socio-economic conditions and areas with specially difficult socio- economic conditions
1. Programs and projects on dissemination of plant varieties and animal varieties or technologies for the production, preservation and processing of agricultural, forestry and aquaculture products must contain items of technology transfer.
2. Any entity which disseminates or transfers technology for production, preservation andprocessing of agricultural, forestry and aquaculture products must report to the State administrative body for science and technology in the locality in which such entity commencesimplementation of the technology transfer.
3. Any entity which provides plant varieties and animal varieties or which transferstechnology for the production, preservation or processing of agricultural, forestry andaquaculture products shall be responsible to provide guidelines on such technology for theusers and must pay compensation for loss and damage arising from the provision of suchplant variety or animal variety or from transfer of such technology.
Article 37. Responsibilities of State bodies during technology transfer activities in rural areas,mountainous areas, areas with difficult socio-economic conditions and areas with specially difficult socio-economic conditions
1. Local State administrative bodies for science and technology shall be responsible to provide guidelines and to facilitate activities of dissemination and transfer of plant varieties and animal varieties or technologies for the production, preservation and processing ofagricultural, forestry and aquaculture products; and to promote technology transfer activities within their localities, and to inspect, detect and promptly prevent the dissemination or supply of plant varieties and animal varieties or of other technologies which cause loss and damage to users.
2. On an annual basis, the Ministry of Science and Technology shall preside over co-ordination with relevant ministries, ministerial equivalent bodies and Government bodies to conduct appraisals of technology transfer activities in rural areas, mountainous areas,areas with difficult socio-economic conditions and areas with specially difficult socio-economic conditions.
Article 38. Program for national technological renovation
1. The program for national technological renovation shall be aimed at achieving the following objectives:
(a) Improvement of the national technological capacity and of the effectiveness of technology transfer activities;
(b) Servicing major national economic programs;
(c) Facilitating small and medium-sized enterprises to replace outdated technologies, to apply progressive technology and to master technology which is transferred from overseas to Vietnam;
(d) Strengthening technological resources in rural areas, mountainous areas, areas withdifficult socio-economic conditions and areas with specially difficult socio-economicconditions.
2. Based on the tasks for socio-economic development in any one period, the Ministry ofScience and Technology shall preside over co-ordination with relevant ministries, ministerial equivalent bodies and Government bodies to formulate the program for national technological renovation and shall submit such program to the Government for approval.
3. Ministries, ministerial equivalent bodies, Government bodies and provincial people’s committees shall, within the scope of their respective functions and powers, be responsible to organize implementation of the program for national technological renovation.
Article 39. National Technological Renovation Fund
1. The National Technological Renovation Fund shall be established, aimed at achieving thefollowing objectives:
(a) Supporting small and medium-sized enterprises to conduct the transfer, renovation and perfection of technologies the transfer of which is encouraged as stipulated in article 9 ofthis Law;
(b) Promoting the transfer of technologies which service the development of agriculture,forestry and aquaculture in rural areas, mountainous areas, areas with difficult socio-economic conditions and areas with specially difficult socio-economic conditions;
(c) Supporting the fostering of technology and technological enterprises;
(d) Supporting the training of scientific and technological manpower to service the transfer, renovation and perfection of technologies.
2. The National Technological Renovation Fund shall support the transfer, renovation andperfection of technologies in the following ways:
(a) By making preferential loans;
(b) By providing support for loan interest rates;
(c) By providing loan guarantees;
(d) By providing capital assistance.
3. The National Technological Renovation Fund shall be formed from the following sources:
(a) From voluntary contributions by domestic and foreign entities;
(b) From loan interest;
(c) From State budget funds reserved for scientific and technological development;
(d) From other sources.
4. The Government shall issue specific regulations on the establishment, administration anduse of the National Technological Renovation Fund.
Article 40. Transfer of results of State funded scientific and technological development research
1. The State shall allocate ownership of technology from results of State funded scientific and technological development research to the organization which presided over such research,unless a provision of law provides otherwise.
2. The owner of the results of State funded scientific and technological developmentresearch shall be obliged to use and transfer such technology to satisfy the requirements for socio-economic development, for national defence and security, and for the prevention andtreatment of disease or for other essential requirements of society.
3. If the owner fails to implement the provisions in clause 2 of this article, then the competent State administrative body for science and technology shall transfer the right to use suchresults of scientific and technological development research to another organization.
Article 41 Mortgages of State owned assets in order to implement technology transfer activities
State owned science and technology organizations shall be permitted to mortgage State owned assets which have been assigned to such organizations in order to borrow loans forimplementation of technology transfer activities in accordance with law.
Article 42 Distribution of revenue from State funded technology transfer activities
Revenue from State funded technology transfer activities shall be distributed as follows:
1. The author of an invention, industrial design or layout design of a semi-conductorintegrated circuit for which a protection title has been issued shall be entitled to receiveremuneration in accordance with the provisions of the Law on Intellectual Property.
2. If a collective or individual creates a technology not within the category stipulated in clause1 of this article, the organization presiding over scientific and technological developmentresearch and which was allocated ownership of the technology created with State fundingmust provide specific regulations on ratios of distribution of benefits, and publicly announcethe regime for such ratios in accordance with the following principles:
(a) Any collective or individual creating a technology shall be entitled to a percentage of theselling price of products created from such technology for a minimum period of ten (10)years if the organization presiding over the scientific and technological developmentalresearch uses such technology for production;
(b) Any collective or individual creating a technology shall be entitled to from twenty (20) tothirty- five (35) per cent of the monetary proceeds generated by the technology transfer contract.
3. The owner of a technology shall, after paying remuneration to the collective or individual which created the technology, use fifty (50) per cent of the remaining revenue to invest inscientific and technological development research and fifty (50) per cent for the welfare andreward fund.
4. Where technology is created by using a number of funding sources including State funding, then distribution of revenue generated from the portion of State funding shall be implementedin accordance with clauses 2 and 3 of this article.
Article 43. Capital contribution by way of technology to investment projects
Any entity with the right to transfer technology as stipulated in article 8 of this Law shallhave the right to contribute capital by technology to investment projects. The value of suchcapital contribution shall be the price of the technology agreed in the technology transfer contract.
Article 44 Tax policies in order to promote technology transfer activities:
1. Income tax exemption for any entity contributing capital by an invention patent licence [and/or]
technology licence.
2. Import duty exemption on goods imported for direct use in scientific and technologicaldevelopment research or in renovation of technology, such goods to comprise machinery,equipment, accessories, materials and transportation facilities not yet able to be produceddomestically; technologies not yet able to be created domestically; and scientific data and textbooks.
3. Specialized use machinery, equipment and transportation facilities in the category not yetable to be produced domestically which service performance of a technology transfer contract shall not be subject to value added tax.
4. Production and business establishments investing in the construction of new production lines, expansion of scale, renewal of technology, improvement of the ecological environmentor increase of production capacity shall be exempted from corporate income tax in respect of any increase in income for four years and shall be granted a fifty (50) per cent reduction ofincome tax payable for the seven subsequent years.
5. Enterprises investing in renovation of technology which receive a technology on the list of technologies the transfer of which is encouraged shall be exempted from [corporate] incometax for four years on condition that the total value of the exempted tax does not exceed fifty (50)per cent of the total funding of the investment in renovation of technology.
6. Enterprises in an area with difficult socio-economic conditions or in an area with specially difficult socio-economic conditions which receive technology when implementing aninvestment project shall be entitled to the following incentives:
(a) Exemption from corporate income tax for four years from the time when taxable incomearises and a fifty (50) per cent reduction of tax payable in the nine (9) subsequent years oncondition that the total value of the exempted tax does not exceed fifty (50) per cent of the totalfunding of the investment in renovation of technology;
(b) Import duty exemption on goods servicing the replacement or renovation of technology andon raw materials, materials and electronic components used for production for five (5) yearsfrom the time of commencement of production with the new technology.
7. Entities which transfer technology in the sector of priority transfer to rural areas,mountainous areas, areas with difficult socio-economic conditions and areas with specially difficult socio-economic conditions shall be granted a fifty (50) per cent reduction of income taxpayable on income generated from the technology transfer [and/or] from the provision of plant varieties or animal varieties.
8. Establishments fostering technology [or] fostering technological enterprises shall beexempted from [corporate] income tax for four years and shall be granted a fifty (50) per centreduction of [corporate] income tax payable for the nine (9) subsequent years and shall beexempted from land use rent.
Article 45 Encouraging enterprises to apply and to renovate technology
Enterprises shall be permitted to deduct a portion of their annual pre-tax profit to establisha science and technology development fund in order to conduct scientific and technologicaldevelopment research and in order to renovate technology. If the fund is not used or if it isused for incorrect purposes during a period of five (5) years, then the enterprise must pay tothe State budget corporate income tax on the portion of pre- tax profit which the State allowed the enterprise to deduct plus interest arising on such pre-tax profit portion.
The Government shall make a submission to the National Assembly to issue a decision on the level of deduction of pre-tax profit stipulated in this article.
Article 46. Encouraging foreigners and Vietnamese residing overseas to transfer technology to Vietnam
Foreigners and Vietnamese residing overseas who participate in transfer of a technology on the list of technologies the transfer of which is encouraged or who transfer a technology in anarea with difficult socio-economic conditions or in an area with specially difficult socio-economic conditions shall be entitled to the following incentives:
1. The incentives stipulated in article 44 of this Law.
2. Individuals and their family members shall be issued with a multiple entry/exit visa for a term consistent with the duration for implementation of the technology transfer contract.
3. Favourable conditions for residence and travel.
4. Other incentives as stipulated by law.
Article 47. Encouraging development of technology transfer services organizations
The State encourages and shall facilitate domestic and foreign entities to set upestablishments fostering technological enterprises, technology trading floors, technology markets, technology fairs and other technology transfer services organizations; and to organize establishments presenting, introducing, applying and transferring technology in rural areasand mountainous areas in order to promote technology transfer activities.
Article 48 Responsibilities of overseas Vietnamese representative diplomatic bodies regarding technology transfer activities
Overseas Vietnamese representative diplomatic bodies shall be responsible to support and promote technology transfer activities, and to facilitate entities to conduct promotionalactivities for the transfer of technology from overseas to Vietnam and from Vietnam to overseas.
The Government shall provide specific regulations on the responsibilities of overseas Vietnamese representative diplomatic bodies regarding technology transfer activities.
Article 49. Announcement, presentation and introduction of technology
1. The competent State administrative body for science and technology shall have the following responsibilities for the announcement, presentation and introduction of technology:
(a) To annually announce a list of technologies created with State budget funding, exceptwhere a provision of law provides otherwise;
(b) To encourage and assist entities to announce new technologies created by such entities.
2. The State shall have measures to support entities with new technology created domestically to undertake the announcement, presentation and introduction of such technologies and toparticipate in technology markets and technology fairs both within Vietnam and overseas.
Article 50. Statistics on technology transfer
1. Statistics on technology transfer comprise statistics on technological data which has been transferred, on new technologies, and on technologies which have been renovated; and such statistics shall comprise one of the items in the annual statistical report of the Stateadministrative body for statistics.
Statistics on technology transfer shall be implemented in accordance with the law on statistics.
2. Enterprises, scientific research and technological development organizations,universities, colleges and other training establishments shall be responsible to annually provide their own statistics on technological transfer to the State administrative body for science and technology.
3. The Central Statistics Body shall preside over co-ordination with the Ministry of Science andTechnology to provide specific regulations on the regime for reporting statistics on technology transfer.
Chapter V

RESPONSIBILITIES OF STATE ADMINISTRATIVE BODIES FOR TECHNOLOGY TRANSFER ACTIVITIES

Article 51. Responsibilities of the Government
The Government shall have the following responsibilities for the exercise of State administration of technology transfer activities:
1. To exercise uniform State administration of technology transfer activities.
2. To direct the formulation and promulgation of strategies, plans, programs, regimes, policiesand measures for promotion of technology transfer activities and for renovation of technologyconsistent with each stage of socio-economic development of the country, and to organizeimplementation of such items.
3. To direct inspection of implementation of the law on technology transfer; to disseminateand teach the law on technology transfer.
4. To decentralize and allocate functions of State administration of technology transfer activities.
5. To promulgate the list of technologies the transfer of which is encouraged, the list oftechnologies the transfer of which is restricted, and the list of technologies the transfer of which is prohibited.
6. To conduct checks and inspections, to resolve complaints and denunciations, and to deal with breaches of the law during technology transfer activities.
Article 52. Responsibilities of the Ministry of Science and Technology
The Ministry of Science and Technology shall have the following responsibilities for theexercise of State administration of technology transfer activities:
1. To be responsible before the Government for exercising administration of technology transfer activities; to promulgate legal instruments on technology transfer in accordance with its authority.
2. To preside over co-ordination with ministries, ministerial equivalent bodies and Governmentbodies in formulation of strategies, plans, measures, regimes and policies for promotion oftechnology transfer activities and renovation of technology, and to submit same to theGovernment for promulgation.
3. To formulate the list of technologies the transfer of which is encouraged, the list oftechnologies the transfer of which is restricted, and the list of technologies the transfer ofwhich is prohibited; to submit such lists to the Government for promulgation; and to organize implementation thereof.
4. To issue and revoke technology transfer permits in the case of technologies on the list of technologies the transfer of which is restricted; to issue and revoke certificates of registration of technology transfer contracts.
5. To announce, in accordance with law, the list of technologies created with State funding.
6. To organize the work of compiling statistics on technology transfer in accordance with law.
7. To organize the work of checks and inspections, resolution of complaints anddenunciations, and dealing with breaches of the law on technology transfer.
8. To carry out other duties as authorized or delegated by the Government.
Article 53. Responsibilities of ministries and ministerial equivalent bodies
Ministries and ministerial equivalent bodies shall have the following responsibilities for theexercise of State administration of technology transfer activities:
1. To co-ordinate with the Ministry of Science and Technology in formulating the list oftechnologies the transfer of which is encouraged, the list of technologies the transfer of whichis restricted, and the list of technologies the transfer of which is prohibited; and in formulating strategies, plans, programs,
measures, regimes and policies for promotion of technology transfer activities and forrenovation of technology.
2. To organize implementation of the program for national technological renovation in the fields for which responsibility has been delegated to them.
3. To facilitate technology transfer activities, especially technologies the transfer of which isencouraged and technology transfer in geographical areas to which the transfer of technology is encouraged.
4. To organize dissemination and training of the law on technology transfer.
5. To carry out other duties as authorized or delegated by the Government.
Article 54. Responsibilities of people’s committees at all levels
People’s committees at all levels shall have the following responsibilities for the exercise of State administration of technology transfer activities:
1. Provincial people’s committees shall exercise State administration of technology transferactivities within their localities in accordance with authority delegated to them by the Government.
2. People’s committees at all levels shall be responsible, within the scope of their respectiveduties and powers, to facilitate technology transfer activities within their localities.
Chapter VI

DISPUTE RESOLUTION, COMPLAINTS AND DENUNCIATIONS, AND DEALING WITH BREACHES

Article 55. Dispute resolution during technology transfer activities
Dispute resolution during technology transfer activities shall be implemented in the following forms:
1. Negotiation between the parties.
2. Conciliation between the parties as mediated by an entity selected by agreement between the parties.
3. Resolution by a domestic or foreign arbitrator or court.
Article 56. Principles for dispute resolution
1. Any dispute arising during technology transfer activities to which the parties areVietnamese entities shall be resolved in accordance with the provisions of this Law and other relevant laws.
2. With respect to any dispute arising during technology transfer activities to which one party is a foreign entity, the parties shall have the right to select the dispute resolution tribunal and the applicable law in accordance with article 4 of this Law in order to resolve the dispute.
3. Any dispute arising during technology transfer activities in which the parties do not reachagreement on selection of applicable law shall be resolved in accordance with the law of Vietnam.
Article 57. Complaints and denunciations
1. Organizations and individuals shall have the right to lodge a complaint with the competent State administrative body about conduct during technology transfer activities infringing thelawful rights and interests of such organization or individual, or to institute court proceedings inaccordance with law.
2. Individuals shall have the right to make a denunciation to the competent Stateadministrative body about conduct in breach of this Law.
3. Complaints and denunciations during technology transfer activities and their resolution shall be implemented in accordance with the law on complaints and denunciations.
4. Any administrative decision of a competent State administrative body for technology transferwhich is effective shall remain enforceable throughout the period during which anyorganization or individual lodges a complaint, makes a denunciation, or institutes legalproceedings; only when there is a decision resolving a complaint or denunciation from the competent State administrative body for technology transfer or when there is a verdict of the court shall enforcement be implemented in accordance with such decision or verdict.
5. Competent State administrative bodies for technology transfer at all levels shall be responsible to resolve complaints and denunciations made by organizations and individuals which are within the jurisdiction of such bodies.
Article 58. Dealing with breaches of the law on technology transfer
1. Any entity in breach of the law shall, depending on the nature and seriousness of thebreach and its consequences to technology transfer activities, be dealt with in one of the following forms:
(a) Be subject to a penalty in accordance with the law on dealing with administrative breaches during technology transfer activities;
(b) Be subject to criminal prosecution in accordance with law.
2. If a breach of law during technology transfer activities causes loss and damage to theinterests of the State or to the legal rights and interests of other entities, then the offendermust pay compensation in accordance with law.
Chapter VII

IMPLEMENTING PROVISIONS

Article 59. Transitional provisions
1. Any technology transfer contract which the competent State administrative body certified for registration or approved prior to the date on which this Law takes effect shall continue to remain effective until expiry of the effective term of the contract.
2. Any application file for registration of a technology transfer contract which was lodged withthe competent State administrative body prior to the date on which this Law takes effect butwhich has not yet been resolved shall be governed by this Law.
3. Organizations providing scientific and technological services which were established andoperating prior to the date on which this Law takes effect shall not be required to re-registertheir operations if they satisfy the operational conditions stipulated in this Law. Any suchorganizations which fail to satisfy the operational condition stipulated in this Law must conductre-registration of their operations within a period of twelve (12) months from the date on which this Law takes effect.
Article 60. Effectiveness
This Law shall be of full force and effect as from 1 July 2007.
Article 61. Implementing guidelines
The Government shall provide detailed regulations and guidelines for implementation of thisLaw.
This Law was passed by Legislature XI of the National Assembly of the Socialist Republic ofVietnam at its 10th Session on 29 November 2006.

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DECREE

DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON INTELLECTUAL PROPERTY ON PROTECTION OF INTELLECTUAL PROPERTY RIGHTS AND ON STATE MANAGEMENT OF INTELLECTUAL PROPERTY

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 11, 2005 Law on Intellectual Property;
At the proposal of the Minister of Science and Technology,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation
This Decree details and guides a number of articles of the Law on Intellectual Property on protection of intellectual property rights, including identification of acts, nature and extent of infringement of intellectual property rights, identification of damage, requests for handling of infringements and settlement of those requests, handling of infringements by administrative measures, control of exports and imports related to intellectual property, assessment of intellectual property, and state management of intellectual property.
Article 2.- Subjects of application
This Decree applies to Vietnamese organizations and individuals and foreign organizations and individuals that have their intellectual property rights protected or commit acts of infringement of intellectual property rights under the Law on Intellectual Property.
Article 3.- Interpretation of terms
In this Decree, the terms below are construed as follows:
1. Act of infringement means an act of infringement of intellectual property rights.
2. Handling of an act of infringement means handling of an act of infringement of intellectual property rights.
3. Infringer means an organization or individual that commits an act of infringement of intellectual property rights.
4. Element means a product, a process or a part or a component of a product or a process.
5. Infringing element means an element created from an act of infringement.
6. Examined act means an act that is suspected to be an act of infringement and is examined to conclude whether it is an act of infringement or not.
7. Examined subject matter means a subject matter that is suspected and examined to conclude whether it is an infringing object or not.
8. Petition for handling of infringement means a written request for application of measures to handle an act of infringement.
Article 4.- Application of civil, administrative and criminal measures to protect intellectual property rights
Depending on their nature and severity, acts of infringement may be handled by civil, administrative or criminal measures in accordance with the provisions of Part Five (Protection of Intellectual Property Rights) of the Law on Intellectual Property and the following provisions:
1. Civil measures are applied to handle acts of infringement at the request of intellectual property right holders, organizations or individuals that suffer from the damage caused by those acts, even when those acts have been or are being handled by administrative or criminal measures.
The procedures for request for application of civil measures and the competence, order and procedures for application of civil measures shall comply with the provisions of law on civil procedures.
2. Administrative measures are applied to handle acts of infringement falling into one of the cases specified in Article 211 of the Law on Intellectual Property, at the request of intellectual property right holders, organizations or individuals that suffer from the damage caused by those acts, organizations or individuals that detect those acts, or when those acts are detected by competent bodies.
The sanctioning forms and levels, the competence and procedures for sanctioning acts of infringement and remedies shall comply with the provisions of the Law on Intellectual Property and the law on sanctioning of administrative violations in the domain of copyright and related rights, industrial property rights and rights to plant varieties.
3. Criminal measures are applied to handle acts of infringement that contain criminal elements in accordance with the provisions of the Penal Code.
The competence, order and procedures for application of criminal measures shall comply with the provisions of law on criminal procedures.
Chapter II

DETERMINATION OF ACTS, NATURE AND EXTENT OF INFRINGEMENT,
DETERMINATION OF DAMAGE

Section I. BASES FOR DETERMINATION OF ACTS, NATURE AND EXTENT OF INFRINGEMENT
Article 5.- Determination of acts of infringement
An examined act shall be regarded as an act of infringement of intellectual property rights specified in Articles 28, 35, 126, 127, 129 and 188 of the Law on Intellectual Property when all the following bases exist:
1. The examined subject matter is a protected one.
2. The examined subject matter contains an infringing element.
3. The person that takes the examined act is neither the intellectual property right holder nor any person permitted by law or a competent agency under Articles 25, 26, 32, 33, Clauses 2 and 3 of Article 125, Article 133, Article 134, Clause 2 of Article 137, Articles 145, 190 and 195 of the Law on Intellectual Property.
4. The examined act takes place in Vietnam.
An examined act that takes place in the Internet but is targeted at consumers or information users in Vietnam shall be regarded to take place in Vietnam.
Article 6.- Bases for determination of protected subject matters
1. The determination of a protected subject matter shall be based on the examination of documents and evidence proving the bases for emergence and establishment of the rights specified in Article 6 of the Law on Intellectual Property.
2. For intellectual property rights that have been registered with competent agencies, the protected subject matters shall be determined on the basis of the registration certificates, protection titles and other documents accompanying such certificates and protection titles.
3. For copyright and rights of performers, rights of producers of phonograms or video recordings, rights of broadcasting organizations that are not registered with competent agencies, these rights shall be determined on the basis of the original exemplar of the work, the first fixation of the performance, phonogram, video recording, broadcast and relevant documents, if any.
When the original exemplar of the work, the first fixation of the performance, phonogram, video recording, broadcast and relevant documents no longer exist, copyright or rights of performers, of producers of phonograms or video recordings or of broadcasting organizations shall be deemed to be true on the basis of information that is usually shown on lawfully published copies on authors, performers, producers of phonograms or video recordings or broadcasting organizations and on the subject matters of copyright or related rights.
4. For trade names, the protected subject matters shall be determined on the basis of their using process and the sector and territory in which such trade names are used.
5. For business secrets, the protected subject matters shall be determined on the basis of documents expressing the contents and nature of the business secrets and explanations and descriptions of relevant measures to keep them secret.
6. For well-known marks, the protected subject matters shall be determined on the basis of documents and evidence expressing the reputation of the marks according to the criteria defined in Article 75 of the Law on Intellectual Property.
Article 7.- Infringing elements of copyright and related rights
1. An infringing element of copyright may take one of the following forms:
a/ Illegally made copy of a work;
b/ Illegally made derivative work;
c/ Work with the forged name and signature of the author, impersonation of the author or appropriation of copyright;
d/ Illegally recited, duplicated or incorporated part of a work;
e/ Product with an illegally deactivated technical device used for copyright protection.
Products containing an infringing element defined in this Clause shall be regarded as copyright-infringing products.
2. An infringing element of related rights may take one of the following forms:
a/ Illegally made first fixation of a performance;
b/ Illegally made copy of the fixation of a performance, illegally made copy of a phonogram, video recording or broadcast;
c/ Illegally duplicated, extracted or incorporated part or whole of a fixed performance, a phonogram or video recording; illegally received, decoded and distributed part or whole of a broadcast;
d/ Product with an illegally deactivated technical device used for related rights protection; the fixation of a performance from which related rights management information has been illegally disengaged or modified.
Products containing an infringing element defined in this Clause shall be regarded as related rights-infringing products.
3. The basis for determination of an infringing element of copyright shall be the scope of copyright protection determined according to the forms of expression of the original work. For determination of infringing elements of derivative works, the basis shall be the characters, images; ways of expression of characters’ personalities, images and circumstances of the original work.
4. The basis for determining an infringing element of related rights shall be the scope of related rights protection already determined according to the forms of expression of the first fixation of the performance, phonogram, video recording or broadcast.
5. In order to determine whether a copy or a work (or the fixation of a performance, phonogram, video recording or broadcast) constitutes an infringing element of copyright or related rights, it is required to compare the copy or work with the original exemplar of the work (the first fixation of a performance, phonogram, video recording or broadcast) or the original work.
A copy of a work or the fixation of a performance, phonogram, video recording or broadcast shall be regarded as an infringing element in the following cases:
a/ The copy is a duplicate of part or the whole of a protected work, the first fixation of a protected performance, phonogram, video recording or broadcast of another person;
b/ The work (part of the work) is part or the whole of a protected work, the first fixation of a protected performance, phonogram, video recording or broadcast of another person;
c/ The work or part of the work contains a character, image, way of expression of the personality of a character or image or circumstances of a protected work of another person.
6. Products containing an infringing element defined at Points a and d, Clause 1, Points b and c, Clause 2 of this Article shall be regarded as pirated goods under the provisions of Article 213 of the Law on Intellectual Property.
Article 8.- Infringing elements of inventions
1. An infringing element of an invention may take one of the following forms:
a/ Product or part (component) of a product that is identical or similar to a product or part (component) of a product being protected as an invention;
b/ Process that is identical or similar to a process being protected as an invention;
c/ A product or part (component) of the product produced through a process that is identical or similar to a process being protected as an invention.
2. The basis for determination of an infringing element of an invention is the scope of invention protection stated in the invention or utility solution patent.
Article 9.- Infringing elements of layout designs of semiconductor integrated circuits
1. An infringing element of a layout design of a semiconductor integrated circuit may take one of the following forms:
a/ Layout design created through illegally copying a protected layout design;
b/ Semiconductor integrated circuit illegally created according to a protected layout design;
c/ Product or part (component) of a product in which a semiconductor integrated circuit defined at Point b of this Clause is incorporated.
2. The basis for determination of an infringing element of a lay-out design of semiconductor integrated circuit is the scope of protection of rights to lay-out designs stated in the certificates of registration of the lay-out designs of semiconductor integrated circuits.
Article 10.- Infringing elements of industrial designs
1. An infringing element of an industrial design is a product or part of a product of which the external appearance is insignificantly different from that of a protected industrial design.
2. The basis for determination of an infringing element of an industrial design is the scope of protection of the industrial design stated in the industrial design patent.
3. A product or part of a product shall be regarded as an infringing element of an industrial design in the following cases:
a/ The examined product or part of the examined product, even with an industrial design patent, contains a combination of design features that create an overall combination being a copy or in substance a copy (with virtually indistinguishable difference) of a protected industrial design of another owner with the permission of such owner;
b/ The examined product or part of the examined product contains a combination of design features that create an overall combination being a copy or in substance a copy of the protected industrial design or at least one product within a set of products of another person.
4. The industrial design of a product (part of a product) shall only be regarded as insignificantly different from a protected one defined in Clause 1 of this Article when it is a copy or in substance a copy of the protected one.
Article 11.- Infringing elements of marks
1. An infringing element of a mark is a sign affixed on goods, their packages, means of services, transaction documents, signboards, means of advertising or other means of business that is identical or confusingly similar to the protected mark.
2. The basis for determination of an infringing element of a mark is the scope of protection of the mark including the mark specimen and a list of goods and services in the mark registration certificate or the certificate of protection in Vietnam of internationally registered mark.
3. In order to determine whether a suspected sign is an infringing element of a mark, it is required to compare such sign to the mark and at the same time to compare goods or services bearing such sign to the protected products or services. An infringing element can only be confirmed if the following two conditions are fully met:
a/ The suspected sign is identical or confusingly similar to the mark within the scope of protection; where a sign is regarded as identical to a protected mark if it has the same composition and method of presentation (including the colors); a sign is regarded as confusingly similar to a protected mark if it has several features identical or similar to those of the protected mark to such an extent that it is not easy to distinguish between them in terms of composition, the way of pronunciation, the way of phonetic transcription of signs, letters, meaning, the method of presentation and colors, thereby causing confusion to consumers in selecting goods or services bearing the mark;
b/ Goods or services bearing the suspected sign that is identical or similar in substance to, have a relationship in terms of functions and utility with, and have the same distribution channel with, the protected goods or services.
4. For well-known marks, a suspected sign shall be regarded as an infringing element if:
a/ The suspected sign meets the condition specified at Point a, Clause 3 of this Article;
b/ Goods or services bearing the suspected sign meet the condition specified at Point b, Clause 3 of this Article or goods or services are not identical, similar or related to the goods or services bearing the well-known mark but are capable of misleading customers as to the origin of services or goods or create wrong impressions about the relationship between the producer or trader of such goods or services and the owner of the well-known mark.
5. When a product or service bears a sign that is identical to or is insignificantly different in terms of overall composition and method of presentation from the protected mark of a product or service of the same type within the scope of protection, it shall be regarded as a counterfeit mark goods as provided for in Article 213 of the Law on Intellectual Property.
Article 12.- Infringing elements of geographical indications
1. An infringing element of a geographical indication is expressed in the form of a sign affixed on goods, their packages, means of services, transaction documents, signboards, means of advertising and other means of business, which is identical or confusingly similar to the protected geographical indication.
2. The basis for determination of an infringing element of a geographical indication is the scope of protection of the geographical indication stated in the decision on registration of the geographical indication.
3. In order to determine whether a suspected sign is an infringing element of a geographical indication, it is required to compare such sign to the geographical indication and to compare products bearing such sign to products bearing the protected geographical indication on the bases:
a/ The suspected sign is identical or confusingly similar to the geographical indication under the scope of protection; where a sign is regarded as identical to a protected geographical indication if it has the same composition of words, including the way of pronunciation, the way of phonetic transcription of letters, meaning, image and symbol within the scope of protection of the geographical indication; a sign is regarded as confusingly similar to a protected geographical indication if it is confusingly similar to the protected geographical indication in terms of word composition, the way of pronunciation, the way of phonetic transcription of letters, meaning, image and symbol within the scope of protection of the geographical indication;
b/ Products bearing the suspected sign are identical or similar to those bearing the protected geographical indication, where a product is regarded as identical or similar if it is identical or similar in terms of substance, functions, utility and distribution channel to another product;
c/ For wine and spirits, apart from the provisions of Point a and Point b of this Clause, a sign that is identical to a protected geographical indication, including its expression in the form of translation or phonetic transcription or accompanied by parts of speech, types, forms, adaptations or similar words that are used for products not originated from the geographical area bearing the protected geographical indication, shall also be regarded as an infringing element of the rights to the geographical indication.
4. When a product bears a sign that is identical to or is insignificantly different in terms of overall composition and the method of presentation from the protected geographical indication of a product of the same type within the scope of protection, it shall be regarded as a counterfeit geographical indication goods as provided for in Article 213 of the Law on Intellectual Property.
Article 13.- Infringing elements of trade names
1. An infringing element of a trade name is expressed in the form of a sign affixed on goods, their packages, means of services, transaction documents, signboards, means of advertising or other means of business that is identical or confusingly similar to the protected trade name.
2. The basis for determination of an infringing element of a trade name is the scope of protection of the trade name that is determined on the basis of evidence of the lawful use of the trade name, specifying the business owner, business establishment, business activities and products or services bearing the trade name.
3. In order to determine whether a suspected sign is an infringing element of a trade name, it is required to compare the sign to the protected trade name and to compare goods or services bearing this sign to the protected products or services on the following bases:
a/ The suspected sign is identical or confusingly similar to the protected trade name; where a sign is regarded as identical to a protected trade name if it has the same composition, including the way of pronunciation, the way of phonetic transcription of letters; a sign is regarded as similar to a protected trade name if it similar in terms of composition, the way of pronunciation, the way of phonetic transcription of letters, thereby misleading consumers as to the business owner, business establishment or business activities bearing the protected trade name;
b/ Goods or services bearing the suspected sign shall be regarded as identical or similar to those bearing the protected trade name if they are identical or similar in terms of substance, functions, utility and distribution channel.
Article 14.- Infringing elements of plant varieties
1. An infringing element of a plant variety may take one of the following forms:
a/ Use of a sapling or propagative material of a protected plant variety to commit acts specified in Clause 1, Article 186 of the Law on Intellectual Property without the permission of the protection title holder;
b/ Use of a sapling or propagative material or any plant variety specified in Clause 1 or Clause 2, Article 187 of the Law on Intellectual Property;
c/ The process of producing plant varieties specified in Clause 3, Article 187 of the Law on Intellectual Property;
d/ Use of the name of a plant variety of the same species or a species close to the species of a protected plant variety that is identical or confusingly similar to the name of the protected plant variety;
e/ The provisions of Point a and Point b of this Clause shall also apply to harvested materials if the protection title holder has no reasonable conditions for exercising his/her rights to the propagation material of the same plant variety.
2. Bases for determination of an infringing element of the rights to a plant variety:
a/ Written description of the plant variety, with the certification of a plant variety protection agency;
b/ Plant variety protection title.
Article 15.- Bases for determination of the nature and extent of infringement
1. The nature of infringement provided in Clause 1, Article 199 of the Law on Intellectual Property is determined on the following bases:
a/ Circumstances and motive of infringement: unintentional infringement, intentional infringement, infringement due to control or dependency, first-time infringement, recidivism;
b/ Manners of commission of acts of infringement: isolated infringement, infringement in an organized manner, self-commission of acts of infringement, bribery, deception or compelling of other persons to commit acts of infringement.
2. The extent of infringement provided in Clause 1, Article 199 of the Law on Intellectual Property is determined on the following bases:
a/ Scope of territory, time, volume and scale of commission of acts of infringements;
b/ Influence and consequences of acts of infringement.
Section 2. DETERMINATION OF DAMAGE
Article 16.- Principles for determination of damage
1. Damage as a result of intellectual property right infringement provided in Article 204 of the Law on Intellectual Property is actual losses including both physical and spiritual losses directly caused to the intellectual property right holder by acts of intellectual property right infringement.
2. Actual losses shall be regarded as having been occurred when all of the following bases exist:
a/ The physical or spiritual benefit is real and belongs to the aggrieved person;
b/ The aggrieved person could achieve the benefit referred to at Point a of this Clause;
c/ There is a decrease in or loss of the benefit of the aggrieved person after the act of intellectual property right infringement is committed as compared to the possibility of achieving such benefit if such act of intellectual property right infringement would not happen and it constitutes the direct cause of such decrease in or loss of the benefit.
3. The level of damage is determined in accordance with the infringing elements of the intellectual property right subject matters.
The determination of the level of damage is based on the evidence of the damage furnished by the parties, including the assessment results and damage declarations that clearly state the bases for determination and calculation of the level of damage.
Article 17.- Loss in property
1. Losses in property are determined in accordance with the level of decrease in or loss of the in-cash value of the protected intellectual property right subject matters.
2. The in-cash value of an intellectual property right subject matter referred to in Clause 1 of this Article is determined in accordance with the following bases:
a/ The price of transfer of the ownership right or the price of assignment of the use right of the intellectual property right subject matter;
b/ The value of the business capital contributed in the form of intellectual property rights;
c/ The ratio of the value of intellectual property rights to the total assets of an enterprise;
d/ The value of investment in the creation and development of the intellectual property right subject matter, including marketing, research, advertising and labor costs, taxes and other expenses.
Article 18.- Decrease in income, profits
1. The income, profits referred to at Point a, Clause 1 of Article 204 of the Law on Intellectual Property include the following:
a/ The income, profits gained from directly using and exploiting the intellectual property right subject matter;
b/ The income, profits gained from leasing the intellectual property right subject matter;
c/ The income, profits gained from assigning the right to use the intellectual property right subject matter.
2. The level of decrease in income, profits is determined on the following bases:
a/ Direct comparison between the levels of actual income, profits before and after the acts of infringement are committed, applicable to each type of income specified in Clause 1 of this Article;
b/ Comparison between the yields or volumes of products, goods or services actually consumed or supplied before and after the acts of infringement are committed;
c/ Comparison between actual sales price of the products, goods or services on the market before and after the acts of infringement are committed.
Article 19.- Losses in business opportunities
1. Business opportunities specified at Point a, Clause 1 of Article 204 of the Law on Intellectual Property include the following:
a/ Actual possibility of directly using or exploiting the intellectual property right subject matter in the business course;
b/ Actual possibility of leasing the intellectual property right subject matter to other persons;
c/ Actual possibility of assigning the use right of or transferring the intellectual property right subject matter to other persons;
d/ Loss of other business opportunities directly caused by the acts of infringement.
2. A loss in business opportunities means loss of the in-cash value of the income that the aggrieved person would have achieved in any of the cases referred to in Clause 1 of this Article but fails to do so due to the acts of infringement.
Article 20.- Reasonable expenses for prevention and remedy of damage
Reasonable expenses for prevention and remedy of damage referred to at Point a, Clause 1, Article 204 of the Law on Intellectual Property include expenses for temporary custody, maintenance, storage of infringing goods, costs of implementation of provisional urgent measures, reasonable expenses for hire of the assessment service, prevention and remedy of consequences of acts of infringement, and cost of notification and correction in the mass media relating to acts of infringement.
Chapter III

REQUEST FOR HANDLING OF INFRINGEMENTS AND SETTLEMENT THEREOF

Article 21.- Exercise of the right to self-protection
1. Organizations and individuals shall exercise the right to self-protection under the provisions of Article 198 of the Law on Intellectual Property and the specific provisions of this Article.
2. Technological measures provided at Point a, Clause 1, Article 198 of the Law on Intellectual Property include:
a/ Displaying indicative information on the origin of emergence, protection title, owner, scope and period of protection and other information on intellectual property rights on products, means of services, the originals and copies of works, fixations of performances, phonograms, video recordings or broadcasts (collectively referred to as products in this Article) in order to inform that the products are protected intellectual property right subject matters and warn that they should not be infringed upon;
b/ Using technical means or measures to mark, identify, distinguish and protect the protected products.
3. Intellectual property right holders shall request termination of acts of infringement specified at Point b, Clause 1, Article 198 of the Law on Intellectual Property by sending written notices to the infringes. Such a written notice shall contain indicative information on the origin of emergence, protection title, owner, scope and term of protection and fix a reasonable period of time for the infringer to terminate the act of infringement.
4. Requests for competent state agencies to handle acts of infringement provided at Point c, Clause 1, Article 198 of the Law on Intellectual Property shall comply with the provisions of Articles 22, 23, 24, 25, 26 and 27 of this Decree.
Article 22.- Petition for handling of infringement
1. A petition for handling of infringement must contain the following major details:
a/ Date of the petition;
b/ Name and address of the requester for handling of infringement; full name of the representative of the requester if such request is made by the representative;
c/ Name of the agency that receives the petition;
d/ Name and address of the infringer; name and address of the suspected infringer in the case of request for temporary cessation of customs clearance for exports or imports suspected of infringement;
e/ Name(s) and address(es) of organizations and individuals with related rights and interests (if any);
f/ Name(s) and address(es) of the witness(es) (if any);
g/ Brief information about the infringed intellectual property rights: type of the right, bases for emergence of the right and its subject matter;
h/ Brief information about the act of infringement: date and place of occurrence of the infringement, brief description of the infringing product, acts of infringement and other information (if any).
For a petition for temporary cessation of customs clearance for imports or exports suspected of infringement, it is required to contain additional information on the mode of import or export, country of exportation, mode of packaging, the lawful importer or exporter, features of lawfully imported or exported goods for distinction from infringing goods; risks of occurrence of circumstances when certain measures need to be applied to prevent infringements and to secure the imposition of penalties, and other information (if any);
i/ Proposed measures to handle infringement;
j/ A list of documents and evidence accompanying the petition;
k/ Signature of the petitioner with a seal (if any).
2. A petition for handling of infringement must be accompanied with documents and evidence to prove the request.
Article 23.- Accompanying documents, evidence and exhibits
1. A requester for handling of infringement must submit the petition together with the following documents, evidence and exhibits to prove the request:
a/ Evidence proving that the requester is the right holder, if the requester is the right holder or an assignee, heir or successor of the intellectual property rights;
b/ Evidence proving the actual occurrence of the acts of infringement; proving the suspicion of infringing imports or exports (for a petition for temporary cessation of customs clearance for imports or exports suspected of infringement);
c/ Copy of the notice sent by the intellectual property right holder to the infringer, which allows a reasonable period of time for the infringer to terminate the acts of infringement, and evidence proving the infringer’s failure to terminate the acts of infringement in the case of filing a petition for handling of infringement under the provisions of Point b, Clause 1, Article 211 of the Law on Intellectual Property;
d/ Evidence proving the damage caused by the infringing products to consumers or society, including food, foodstuffs, preventive and curative medicines, livestock feeds, fertilizers, veterinary drugs, plant protection drugs, plant varieties and animal breeds that are harmful to the health of humans or animals or to the environment, in the case of filing a petition for handling of infringement under the provisions of Point a, Clause 1, Article 211 of the Law on Intellectual Property;
e/ Evidence and exhibits related to the intellectual property counterfeit goods or products, parts of products, decals, labels, marks, goods packages, materials and means chiefly used for the production of intellectual property counterfeit goods; documents proving the acts of assignment, ordering, production or trading of products, parts of products, decals, labels, marks, goods packages, materials and means used for the production of intellectual property counterfeit goods in the case of filing a petition for handling of infringement under the provisions of Point c or d, Clause 1, Article 211 of the Law on Intellectual Property;
f/ Evidence proving the request for the application of measures to prevent infringement and to secure the imposition of penalties (in the case of concurrently requesting the application of those measures).
2. When a request for handling of infringement is made through an authorized representative, the petition must be enclosed with the paper or contract of authorization notarized by public notary or certified by the local administration; if it is made by a representative at law, the petition must be enclosed with a paper proving the representative-at-law status.
Article 24.- Evidence to prove the right holder status
The documents referred to in Clause 2, Article 203 the Law on Intellectual Property and specified in this Clause shall be regarded as evidence to prove the right holder status.
1. For inventions, industrial designs, lay-out designs, marks, geographical indications, plant varieties, copyright, rights of performers, rights of producers of phonograms or video recordings or rights of broadcasting organizations already registered, evidence to prove the right holder status may be one of the following two documents:
a/ The original of the protection title for inventions, industrial designs, layout design, marks or geographical indications; the original of the protection title for plant varieties; the original of a copyright/related right registration certificate or a copy thereof notarized by a public notary or certified by the original-issuing agency;
b/ An excerpt of the National Register of Industrial Property; an excerpt of the National Register of Copyright/Related Rights; an excerpt of the National Register of Rights to Plant Varieties, issued by the competent agencies that have registered those subject matters.
2. For an internationally registered mark, the evidence to prove the right holder status shall be the original or the certificate of protection in Vietnam of such internationally registered mark issued by the state management agency in charge of industrial property, a copy of the International Mark Official Gazette of the World Intellectual Property Organization that is certified by the state management agency in charge of industrial property or a copy of or the certificate of protection in Vietnam of such internationally registered mark or the Industrial Property Official Gazette that is notarized by public notary or certified by the state management agency in charge of industrial property.
3. For other intellectual property rights subject matters, evidence to prove the right holder status shall be any documents, exhibits or information used as the basis for emergence and establishment of the relevant right as provided in Clause 1, Clause 2, at Point b and Point c, Clause 3 of Article 6 of the Law on Intellectual Property and specified as follows:
a/ For unregistered copyright, rights of performers, rights of producers of phonograms or video recordings or rights of broadcasting organizations: the original or a copy of the work, fixation of the performance, phonogram, video recording, the broadcast, the satellite signals carrying encoded programs together with other documents evidencing their creation, publication or dissemination of those subject matters and accompanying documents and evidence (if any);
b/ For business secrets: a description of the contents, form of storage, method of protection and method of acquisition of the secret;
c/ For trade names: a description of the contents, mode of use and using process of the trade name;
d/ For well-known marks: documents evidencing the criteria of a well-known mark provided in Article 75 of the Law on Intellectual Property and explanations on the process of using a mark to make it well-known.
4. If the requester for handling of infringement is a transferee of the ownership of the intellectual property right subject matter, a transferee of the right to use the intellectual property right subject matter, a heir or successor of the intellectual property right subject matter, in addition to those documents referred to in Clauses 1, 2 and 3 of this Article, the requester shall also produce the original or a valid copy of the contract for transfer of the ownership of the intellectual property right subject matter or for the use of the intellectual property right subject matter or a document of certification of the inheritance or succession of the intellectual property right subject matter. When the transfer has been entered in the protection title or the certificate of registration of the contract for transfer of the ownership of the intellectual property right subject matter or for the use of the intellectual property right subject matter, these documents shall be also regarded as evidence to prove the right holder status.
Article 25.- Evidence to prove infringements
1. The following documents and exhibits shall be regarded as evidence to prove an infringement:
a/ The original or a valid copy of the descriptive documents or specimen or related exhibit expressing the protected subject matter;
b/ The specimen, related exhibit, photos or recorded images of the examined products;
c/ The written explanation and comparison between the examined products and protected subject matter;
d/ Minutes, testimonies and other documents evidencing acts of infringement.
2. A list of the documents and exhibits referred to in Clause 1 of this Article must be made, certified with the signature of the requester.
Article 26.- Responsibilities of requesters for handling of infringement
1. A requester for handling of infringement shall ensure and be held liable for the truthfulness of the information, documents and evidence that he/she supplied.
2. A requester for handling of infringement who takes advantage of the right to request for handling of infringement for other unhealthy purposes and thereby causing damage to other organizations and individuals shall be liable for compensation.
Article 27.- Filing and settlement of petitions for handling of infringement
1. A petition for handling of infringement shall be filed with agencies with competence to handle infringements defined in Article 200 of the Law on Intellectual Property.
2. Upon receiving a petition for handling of infringement, if the petition-receiving agency finds that the petition falls within the settling competence of another agency, it shall either instruct the requester to file the petition with the agency with the settling competence or forward the petition to the agency with settling competence within ten days after the date of receipt of the petition.
3. If a petition for handling of infringement lacks documents, evidence or exhibits as required, the infringement-handling agency shall request the requester to submit supplementary documents and evidence and fix a reasonable time limit not exceeding thirty days for the requester to do so.
4. The infringement-handling agency shall reject a petition for handling of infringement and state the reason for rejection in the following cases:
a/ At the expiration of the fixed time limit referred to in Clause 3 of this Article, the requester for handling of infringement fails to submit supplementary documents and evidence as requested by the infringement-handling agency;
b/ The statute of limitations for handling infringements as provided for by law has expired;
c/ The verification result of the infringement-handling agency or the police shows that there is no infringement as described in the petition;
d/ A competent agency’s document shows that there are insufficient grounds for handling the infringement.
5. When there is a dispute over or complaint about the right holder, the possibility of protection or scope of protection of the intellectual property rights, the agency that has received the petition for handling of infringement shall instruct the requester to carry out procedures for requesting settlement of the dispute or complaint at a competent agency within ten days after the date on which the dispute arises.
Chapter IV

HANDLING OF INFRINGEMENTS BY ADMINISTRATIVE MEASURES

Article 28.- Determination of the value of infringing goods
1. Infringing goods:
a/ Infringing goods provided in Clause 4, Article 214 of the Law on Intellectual Property are components (parts or details) of products that contain infringing elements, and can be circulated as independent goods (hereinafter referred to as infringing goods);
b/ If it is impossible to detach the infringing elements as independent product components as provided at Point a of this Clause, then the infringing goods shall be the whole products that contain infringing elements.
2. The value of infringing goods specified in Clause 4, Article 214 of the Law on Intellectual Property shall be determined by the infringement-handling agency at the time of occurrence of the acts of infringement on the following bases that are arranged in the priority order as follows:
a/ The listed prices of the infringing goods;
b/ The actual selling prices of the infringing goods;
c/ The cost of the infringing goods (if not yet delivered for sale);
d/ The market prices of similar goods with the same technical specifications and quality.
3. The value of infringing goods shall be calculated either on the basis of components (parts, details) of the infringing products referred to at Point a, Clause 1 of this Article or on the value of the whole of the infringing products referred to at Point b, Clause 1 of this Article.
4. When the application of the bases specified in Clause 2 of this Article is inappropriate or the infringement-handling agency and the finance agency of the same level cannot reach agreement on the determination of the value of the infringing goods, the valuation of these goods shall be decided by the council for determination of the value of infringing goods.
The establishment, composition and working principles of the council for determination of the value of infringing goods shall comply with the provisions of law.
Article 29.- Disposal of infringing goods
1. For intellectual property counterfeit goods, raw materials, materials and implements mainly used for producing or trading such goods, the infringement-handling agency may apply one of the following measures:
a/ Confiscation for distribution or use for non-commercial purposes in accordance with Article 30 of this Decree;
b/ Confiscation for destruction under Article 31 of this Decree;
c/ Compelling goods owners, transporters or storers to remove infringing elements and deliver out of the Vietnamese territory transit goods being goods with counterfeit marks, or to re-export imported goods being goods with counterfeit marks, being raw materials, materials and means mainly used for producing goods with counterfeit marks; if it is impossible to remove the infringing elements, then appropriate measures specified in Clause 4 of this Article may be applied.
For imported goods with counterfeit geographical indications or imported raw materials, materials and means mainly used for producing or trading goods with counterfeit geographical indications or illegally copied goods, the infringement-handling agency may apply the measure of compelling removal of infringing elements and appropriate measures specified in Clause 4 of this Article on a case-by-case basis.
2. For infringing goods that are not intellectual property counterfeit goods or materials, raw materials and means mainly used for producing or trading such goods, the infringement-handling agency shall apply measures to compel the goods owner, transporter or storer of those goods to remove the infringing elements from the goods, then apply appropriate measures specified in Clause 4 of this Article.
For imported infringing goods that are not intellectual property counterfeit goods or materials, raw materials and means mainly used to produce or trade in such goods, the infringement-handling agency shall apply appropriate measures specified at Point c, Clause 1 of this Article.
3. Materials, raw materials and means that have the sole function of creating or commercially exploiting intellectual property counterfeit goods, infringing goods or are actually used only for that purpose shall be regarded as materials, raw materials and means mainly used for producing or trading intellectual property counterfeit goods or infringing goods.
4. On a case-by-case basis, the infringement-handling agency shall decide to apply measures specified at Point a, Point b, Clause 1 of this Article or other appropriate measures as it deems appropriate. In the process of issuing a decision to handle infringement, the infringement-handling agency may consider the related parties’ proposals regarding the handling of infringement.
Article 30. – Compelled distribution or use for non-commercial purposes
1. The compelled distribution or use of intellectual property counterfeit goods or infringing goods for non-commercial purposes must satisfy the following conditions:
a/ The goods are useable;
b/ Infringing elements have been removed from the goods;
c/ Such distribution or use is for non-commercial purposes and does not unreasonably affect the normal exercise of the rights of the intellectual property right holder, where the purposes of humanity, charity and public interest shall be prioritized;
d/ Persons to whom goods are distributed or delivered for use are not potential customers of the intellectual property right holder.
2. The provisions of Clause 1 of this Article shall also apply to raw materials, materials and means for producing and trading intellectual property counterfeit goods or infringing goods.
Article 31.- Compelled destruction
The measure of compelled destruction of intellectual property counterfeit goods, infringing goods and raw materials, materials and means mainly used for producing and trading those goods shall be applied when all the conditions for application of the measure of compelled distribution or use of goods and materials for non-commercial purposes provided in Article 30 of this Decree are not fully met.
Article 32.- Confiscation
The measure of confiscation of intellectual property counterfeit goods, raw materials, materials and means mainly used for producing and trading those goods shall be applied in the following cases:
1. In an emergency case in order to ensure that evidence is not destroyed, dispersed or altered or to prevent the possible commission of further acts of infringement.
2. The infringing organization or individual has no capability or condition to remove infringing elements from the goods or intentionally fails to comply with the request for removal of infringing elements from the goods or fails to take other measures as prescribed by the infringement-handling agency.
3. The goods are of unknown origin or belong to unknown owner while there are sufficient bases for determining that they are intellectual property counterfeit goods.
Article 33.- Other administrative remedies and sanctioning competence and procedures
Other forms of administrative sanction and remedies, the competence and procedures for sanctioning acts of infringement shall be applied under the provisions of law on sanctioning of administrative violations in the domains of copyright and related rights, industrial property rights and rights to plant varieties.
Chapter V

CONTROL OVER INTELLECTUAL PROPERTY-RELATED IMPORTS AND EXPORTS

Article 34.- Right to request control over intellectual property-related imports and exports
Intellectual property right holders may either directly or through their representatives files a petition for control or supervision for the purpose of detecting imports or exports containing signs of intellectual property right infringement or a petition for temporary cessation of customs clearance for imports or exports suspected of intellectual property right infringement.
Article 35.- Customs offices competent to receive petitions
1. District customs departments shall have the power to receive petitions for checking or supervision or temporary cessation of customs clearance at the border gates under their management.
2. Provincial/municipal customs departments shall have the power to receive petitions for checking or supervision or temporary cessation of customs clearance at the border gates under their management.
3. The General Department of Customs shall have the power to receive petitions for checking or supervision or temporary cessation of customs clearance at the border gates under the management of two and more provincial/municipal customs departments.
4. In the cases specified in Clauses 2 and 3 of this Article, intellectual property right holders may also file their petitions at each district or provincial customs department.
Article 36.- Procedures for processing petitions
1. Within thirty days after the date of receipt of a petition for checking or supervision of imports or exports, or within twenty-four working hours after the receipt of a petition for temporary cessation of customs clearance, the customs office shall be responsible for considering and issuing a notice on acceptance of the petition, if the petitioner has performed the obligations provided at Points a, b, c, Clauses 1 and 2, Article 217 of the Law on Intellectual Property. In case of rejection, the customs office shall reply in writing to the petitioner, clearly stating the reasons therefor.
2. When the General Department of Customs accepts a petition, it shall forward the petition and instruct relevant provincial/municipal customs departments for settlement.
When a provincial/municipal customs department accepts a petition, it shall forward the petition and instruct relevant district customs departments for settlement.
District customs departments shall be responsible for checking and supervising to find out goods suspected of infringement or deciding on temporary cessation of customs clearance on the basis of the petitions for temporary cessation of customs clearance and instructions of the General Department of Customs or provincial/municipal customs departments.
Article 37.- Disposal of goods suspected of infringement
1. In case the goods suspected of intellectual property right infringement are found, at the request of the intellectual property right holder or in exercising the power to impose administrative sanctions, the customs office shall issue a decision to temporarily cease customs clearance, and notify the temporary cessation of customs clearance to the intellectual property right holder and the goods owner, stating the names, addresses, facsimile numbers and telephone numbers of the concerned parties, the reason for and the duration of the temporary cessation.
2. The customs office shall continue customs clearance for the goods shipment in question according to the provisions of Clause 3, Article 218 of Law on the Intellectual Property and in the following cases:
a/ Upon cancellation or revocation of the decision on temporary cessation of customs clearance under a decision on the settlement of the complaint or denunciation;
b/ Upon withdrawal by the requester of the petition for temporary cessation of customs clearance.
Article 38.- Procedures for controlling intellectual property-related imports and exports
The procedures for controlling intellectual property-related imports and exports shall comply with the provisions of this Decree and relevant provisions of law on customs.
Chapter VI

INTELLECTUAL PROPERTY ASSESSMENT

Article 39.- Contents and areas of intellectual property assessment
1. Intellectual property assessment covers the following contents:
a/ Determination of the legal status and protectability of the intellectual property right subject matter; the scope of intellectual property right protection;
b/ Determination of evidence for calculation of the level of damage;
c/ Determination of infringing elements, infringing products/services, the element serving as a basis for determination of the value of the protected intellectual property right subject matter, the infringing objects;
d/ Determination of the ability to prove the intellectual property right holder status, infringement, infringing goods or the ability to prove to the contrary of documents and evidence used in the dispute or infringement;
e/ Other circumstances of the case that need to be clarified.
2. Intellectual property assessment shall cover the following areas:
a/ Assessment of copyright and related rights;
b/ Assessment of industrial property rights;
c/ Assessment of the rights to plant varieties.
Article 40.- Competence to solicit and the right to request intellectual property assessment
1. The agencies with competence to solicit intellectual property assessment are agencies with competence to settle disputes, handle infringements and settle intellectual property-related complaints and denunciations as defined in Article 200 of the Law on Intellectual Property.
2. The following organizations and individuals are entitled to request intellectual property assessment:
a/ Intellectual property right holders;
b/ Organizations and individuals subject to a request for handling of acts of infringement or intellectual property-related complaint or denunciation;
c/ Other organizations and individuals with related rights and interests in an intellectual property-related dispute, infringement, complaint or denunciation.
3. Organizations and individuals entitled to request assessment as defined in Clause 2 of this Article may directly request or authorize other organizations or individuals to request intellectual property assessment organizations or intellectual property assessors to conduct assessment.
Article 41.- Rights and obligations of persons soliciting or requesting intellectual property assessment
1. Persons soliciting or requesting intellectual property assessment are entitled to:
a/ Request the assessment organization or assessor to make assessment conclusions according to the contents and within the time limit as requested;
b/ Request the assessment organization or assessor to explain assessment conclusions;
c/ Request additional assessment or re-assessment under the provisions of Article 50 of this Decree;
d/ Agree on the assessment charges in the case of request for assessment.
2. Persons soliciting or requesting intellectual property assessment are obliged to:
a/ Supply fully and honestly documents, evidence and information relating to the assessed subject matter at the request of the assessment organization or assessor;
b/ Clearly and specifically present issues of which assessment is solicited or requested;
c/ Pay the assessment charges as agreed upon; make advance payment of assessment charges at the request of the assessment organization or assessor;
d/ Receive back the assessed subject matter at the request of the assessment organization or assessor.
Article 42.- Intellectual property assessment organizations
1. Intellectual property assessment organizations are organizations meeting all conditions for conducting intellectual property assessment.
2. Conditions for establishing an assessment organization:
a/ Having at least two members who have intellectual property assessor’s cards;
b/ Meeting other conditions under relevant provisions of law.
3. Conditions for an assessment organization to conduct intellectual property assessment:
a/ Meeting all conditions specified at Point a, Clause 2 of this Article;
b/ Having a certificate of registration of scientific and technological activity and a certificate of registration of the assessment business or practice according to current law;
c/ An assessment organization may practice assessment only in the area in which it has registered its activity and assessment business.
Article 43.- Rights and obligations of intellectual property assessment organizations
1. In assessment activities, intellectual property assessment organizations shall have the rights and obligations provided in Clause 4, Article 44 of this Decree; be responsible for ensuring necessary conditions for intellectual property assessors to discharge their rights and obligations; and be liable for assessment conclusions if the assessment is conducted in their names.
2. Intellectual property assessment organizations shall be responsible for taking part in the following activities:
a/ Scientific research into intellectual property assessment;
b/ Training assessors and fostering professional skills in intellectual property assessment.
Article 44.- Intellectual property assessors
1. Intellectual property assessors are those who have adequate knowledge and professional skills to assess and conclude on issues related to the contents of assessment and are recognized by competent state agencies under the provisions of Clause 5 of this Article.
Intellectual property assessors may operate independently or as a member of an intellectual property assessment organization.
2. The Ministry of Science and Technology, the Ministry of Culture and Information and the Ministry of Agriculture and Rural Development shall, according to their assigned areas of state management of intellectual property, coordinate with the Ministry of Education and Training and the Ministry of Justice in issuing specific regulations on the programs on professional training in each area of assessment under their respective management.
3. Those who fully meet the following conditions shall be recognized and granted intellectual property assessor’s cards:
a/ Having a university degree in the area of assessment;
b/ Possessing good moral qualities;
c/ Having full civil act capacity;
d/ Having passed a professional exam of knowledge about intellectual property law, scientific and technical capability, professional skills and experience for performing assessment of contents related to industrial property rights, copyright, related rights and rights to plant varieties.
The Ministry of Science and Technology, the Ministry of Culture and Information and the Ministry of Agriculture and Rural Development shall stipulate the contents of examination referred to at this Point in the areas under their assigned management; guide and organize those exams and grant certificates of professional eligibility for working as intellectual property assessors.
4. Intellectual property assessors shall have the following rights and obligations:
a/ To perform assessment when solicited or requested; to perform assessment according to the contents of assessment as solicited or requested, and according to the time requirement on assessment; when it is necessary to have more time for assessment, to promptly report it to the person who solicits or requests such assessment;
b/ To refuse to perform assessment when the subject matters of assessment or documents are insufficient or are irrelevant to make assessment conclusions, or when they have rights or benefits relating to the subject matters of assessment or the cases in which assessment is required or where there exist other reasons that may influence the objectiveness of assessment conclusions while they also act as representatives to protect the interests of one of the parties involved in the case in which assessment is required;
c/ To request agencies, organizations to supply documents, exhibits and information relating to the subject matters of assessment;
d/ To select the necessary and appropriate method for assessment; to use test results or conclusions of professionals or comments of experts in service of assessment;
e/ To prepare assessment dossiers, to be present as required in the writ of summon of the assessment-soliciting agency; to explain the assessment conclusions if so requested;
f/ To preserve the exhibits and documents relating to the assessment; to keep confidential all assessment results and information and documents for assessment;
g/ To independently make and be responsible for assessment conclusions;
h/ To compensate for damage when intentionally making false assessment conclusions, causing damage to concerned individuals and organizations;
i/ To comply with the regulations on the order and procedures for assessment and to discharge other rights and obligations provided for by law.
5. The Ministry of Culture and Information, the Ministry of Science and Technology and the Ministry of Agriculture and Rural Development shall stipulate the procedures for recognition of intellectual property assessors, grant and withdrawal of intellectual property assessor’s cards; and publish lists of intellectual property assessors in the areas under their respective management corresponding to copyright and related rights, industrial property rights and rights to plant varieties.
Article 45.- Solicitation of assessment
1. Any solicitation of assessment must be made in writing.
2. A document on solicitation of assessment must have the following principal contents:
a/ Name and address of the agency soliciting assessment; name and position of the person competent to solicit assessment;
b/ Name and address of the assessment organization or the assessor;
c/ Subject matter and details that need to be assessed;
d/ Relevant evidence, documents and exhibits;
e/ The time limit for notifying the assessment conclusions.
Article 46.- Assessment request
1. A request for assessment must be made in the form of an assessment service contract between the person requesting assessment and an assessment organization or an assessor.
2. An assessment service contract must contain the following principal details:
a/ Name and address of the organization or individual requesting assessment;
b/ Name and address of the assessment organization or the assessor;
c/ Contents of the assessment request;
d/ Relevant evidence, documents and exhibits;
e/ Time limit for notifying assessment conclusions;
f/ Rights and obligations of the parties;
g/ Liabilities for breach of the contract.
Article 47.- Delivery, receipt and return of objects for intellectual property assessment
Where the assessment solicitation or request is enclosed with an assessment object, the handing, receipt and return of the object must be recorded in writing. Such a record must have the following principal details:
1. Time and place of delivery, receipt and return of the assessment object;
2. Names and addresses of the deliverer and recipient of the assessment object or of their representatives;
3. Name of the assessment object; related documents or items.
4. Conditions and method of preservation of the assessment object upon delivery, receipt and return.
5. Signatures of the deliverer and recipient of the assessment object.
Article 48.- Taking of samples for intellectual property assessment
1. The assessment organization or assessor may directly take samples for assessment (particular exhibits that are infringing elements or intellectual property subject matters) or request the assessment solicitor or requester to supply samples for assessment. The taking of samples for assessment must be recorded in writing to the witness of the involved parties who shall sign this record for certification.
2. The delivery, receipt and return of assessment samples shall comply with the provisions of Article 47 of this Decree.
Article 49.- Performance of intellectual property assessment
1. Intellectual property assessment may be performed by one or several intellectual property assessors. Individual assessment means assessment performed by a single assessor. Collective assessment means assessment performed by two or more assessors.
2. In case of individual assessment, the assessors shall perform the whole of the assessment and be responsible for their assessment conclusions. In case of collective assessment of issues in the same professional area, the assessors shall jointly perform the assessment, sign the common assessment conclusion document and be jointly responsible for assessment conclusions; if the assessors hold different opinions, each assessor shall write his/her own opinion in the common assessment conclusion document and be responsible for that opinion. In case of collective assessment of issues in different professional areas, each assessor shall perform his/her assessment job and be responsible for his/her assessment conclusion.
Article 50.- Additional assessment, re-assessment
1. Additional assessment shall be performed when the assessment conclusion is insufficient and unclear regarding the contents that need assessment or when new circumstances arise and need to be made clear. The request for additional assessment and the performance of additional assessment shall comply with the provisions applicable to first-time assessment.
2. Re-assessment shall be performed when the assessment solicitor or requester disagrees with the assessment result or when exist contradictory assessment results on the same assessed issue. The re-assessment may be performed by the assessment organization or assessor that has performed the previous assessment or by another assessment organization or assessor as requested by the assessment solicitor or requester.
3. If the first-time assessment conclusion is contradictory to the re-assessment conclusion on the same assessed issue, it is possible to further request or solicit re-assessment by another assessment organization or assessor.
Article 51.- Written assessment conclusions
1. Written assessment conclusion shall be considered as evidence used for handling the case.
2. A written assessment conclusion must contain the following principal contents:
a/ Name and address of the assessment organization or assessor;
b/ Name and address of the agency soliciting assessment or the organization or individual requesting assessment;
c/ Object, contents and scope of assessment;
d/ Mode of assessment;
e/ Assessment conclusions;
f/ Time and place of performance and completion of the assessment.
3. A written assessment conclusion must be signed by the assessor(s) performing the assessment. When the assessment is performed by an assessment organization, the written assessment conclusion must also be signed by the head of the assessment organization and affixed with the seal of the assessment organization.
Article 52.- Prohibited acts in the performance of assessment
In the performance of assessment, the following acts are prohibited:
1. Accepting and performing assessment in the cases in which assessment must be refused according to regulations.
2. Intentionally making false assessment conclusions.
3. Disclosing confidential information known in the course of assessment without permission of the involved parties.
4. Taking advantage of the assessment status and assessment activities for self-seeking purposes.
Article 53.- Assessment charges
Charges for intellectual property assessment upon solicitation shall comply with the provisions of law on charges and fees.
Charges for intellectual property assessment upon service request shall be agreed upon by the involved parties.
Chapter VII

STATE MANAGEMENT OF INTELLECTUAL PROPERTY

Article 54.- Principle of unified state management of intellectual property
The performance of the state management of intellectual property provided in Article 10 and Article 11 of the Law on Intellectual Property shall be based on the principle of uniformity of objectives, contents and measures under the general direction of the Government, clear division of responsibilities and close coordination among ministries, ministerial-level agencies, government-attached agencies and People’s Committees at all levels.
Article 55.- Responsibilities of the Ministry of Science and Technology
1. The Ministry of Science and Technology shall assume the prime responsibility for, and coordinate with the Ministry of Culture and Information, the Ministry of Agriculture and Rural Development and other ministries, ministerial-level agencies, government-attached agencies and People’s Committees at all levels in, carrying out the following general activities in order to secure unified state management of intellectual property:
a/ Formulating, promulgating or submitting to competent authorities for promulgation, and organizing the implementation of, strategies, policies and general legal documents on intellectual property right protection and this Decree;
b/ Monitoring, urging and supervising the performance of the tasks by ministries, ministerial-level agencies, government-attached agencies and People’s Committees at all levels, which are assigned by the National Assembly and the Government, in accordance with the provisions of Article 10 and Article 11 of the Law on Intellectual Property, and this Decree;
c/ Summing up, evaluating and reporting to the Government on intellectual property right protection activities, and making proposals on specific policies and measures to improve the effectiveness of intellectual property system and secure the unified state management of intellectual property;
d/ Formulating, and directing the implementation of, general programs and schemes on intellectual property right protection, measures of coordination among competent state agencies in the domain of intellectual property right protection;
e/ Negotiating, concluding, acceding to and organizing the implementation of, general treaties on intellectual property; proposing the settlement of national intellectual property-related disputes in the domain of international relations.
2. Apart from the prime responsibility for performing general activities specified in Clause 1 of this Article, the Ministry of Science and Technology shall have the following responsibilities:
a/ Directly performing the function of state management of industrial property and securing the consistency of industrial property policies, strategies and legal documents with general policies, strategies and legal documents on intellectual property;
b/ Performing other tasks assigned by the Government.
Article 56.- Responsibilities of the Ministry of Culture and Information
The Ministry of Culture and Information shall coordinate with the Ministry of Science and Technology in performing the tasks specified in Clause 1, Article 55 of this Decree and perform the following specific tasks:
a/ Directly performing the function of state management of copyright and related rights, securing the consistency of policies, strategies and legal documents on copyright and related rights with general policies, strategies and legal documents on intellectual property; regularly or irregularly reporting to the Ministry of Science and Technology on the state management and protection of intellectual property rights for coordination in handling emerging issues, sum-up and report to the Prime Minister.
b/ Performing other tasks assigned by the Government.
Article 57.- Responsibilities of the Ministry of Agriculture and Rural Development
The Ministry of Agriculture and Rural Development shall coordinate with the Ministry of Science and Technology in performing the tasks specified in Clause 1, Article 55 of this Decree and perform the following specific tasks:
1. Directly performing the function of state management of rights to plant varieties, securing the consistency of policies, strategies and legal documents on rights to plant varieties with general policies, strategies and legal documents on intellectual property; regularly or irregularly reporting to the Ministry of Science and Technology on the state management and protection of intellectual property rights for coordination in handling emerging issues, sum-up and report to the Prime Minister.
2. Performing other tasks assigned by the Government.
Article 58.- Responsibilities of other ministries, ministerial-level agencies, government-attached agencies and People’s Committees at all levels
Ministries, ministerial-level agencies, government-attached agencies and People’s Committees at all levels shall, within the scope of their respective functions and tasks, coordinate with the Ministry of Science and Technology, the Ministry of Culture and Information and the Ministry of Agriculture and Rural Development in performing the following specific tasks:
1. Performing the tasks specified in Clause 1, Article 55 of this Decree and directly performing specific tasks assigned by the Government and the National Steering Committee for Intellectual Property.
2. Securing the implementation of policies and law on intellectual property in their localities in accordance with the Law on Intellectual Property and its guiding documents.
3. Regularly or irregularly reporting to the Ministry of Science and Technology on the state management and protection of intellectual property rights for coordination in handling emerging issues, sum-up and report to the Prime Minister.
Article 59.- The National Steering Committee for Intellectual Property
The Prime Minister shall decide to set up the National Steering Committee for Intellectual Property and define specific duties and powers of this Committee
Article 60.- Coordination regime
1. The Ministry of Science and Technology shall assume the prime responsibility for, and coordinate with the Ministry of Culture and Information, the Ministry of Agriculture and Rural Development and concerned agencies in, performing the state management of, protecting, supervising, inspecting and handling infringements of intellectual property rights.
2. State management agencies in charge of intellectual property shall fully and promptly reply to requests of agencies with competence to handle infringements of intellectual property rights.
3. State management agencies in charge of intellectual property shall, upon request, participate in inspection or supervision teams to assist inspection and supervision work.
4. Concerned ministries shall report on the protection of intellectual property rights on an annual basis or upon request to the National Steering Committee for Intellectual Property, or upon international request.
Chapter VIII

IMPLEMENTATION PROVISIONS

Article 61.- Transition provisions
1. This Decree’s provisions on inventions also apply to utility solutions protected under the 1995 Civil Code and the Government’s Decree No. 63/CP of October 24, 1996, stipulating in detail industrial property, which was amended under Decree No. 06/2001/ND-CP of February 1, 2001.
2. This Decree’s provisions on geographical indications also apply to goods origin appellations protected under the 1995 Civil Code and the Government’s Decree No. 63/CP of October 24, 1996, stipulating in detail industrial property, which was amended under Decree No.06/2001/ND-CP of February 1, 2001.
2. The application of the provisions of this Decree to other intellectual property subject matters complies with the provisions of Clause 1 and Clause 3, Article 220 of the Law on Intellectual Property.
Article 62.- Effect of the Decree
This Decree takes effect 15 days after its publication in “CONG BAO.”
Other provisions in documents promulgated before the effective date of this Decree that are contrary to this Decree are all annulled.
Article 63.- Responsibilities for implementation guidance
1. The Minister of Science and Technology, the Minister of Culture and Information and the Minister of Agriculture and Rural Development shall provide guidance on the implementation of this Decree.
2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and presidents of People’s Committees of provinces and centrally run cities shall implement this Decree.
 

The post Decree of Government No.105/2006/ND-CP of September 22, 2006 detailing and guiding the implementation of a number of articles of The Law on Intellectual Property on protection of intellectual property rights and on state management of intellectual propert appeared first on MP Law Firm.

THE GOVERNMENT
——-

SOCIALIST REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
———-

No. 103/2006/ND-CP

Hanoi, September 22, 2006

DECREE

DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON INTELLECTUAL PROPERTY REGARDING INDUSTRIAL PROPERTY

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the June 14, 2005 Civil Code;
Pursuant to the November 29, 2005 Law on Intellectual Property;
At the proposal of the Science and Technology Minister;

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation
This Decree details and guides the implementation of the provisions of the Law on Intellectual Property on the establishment, subject matters and contents of, and limitations on, industrial property rights, the assignment of industrial property rights, the industrial property representation and measures to promote industrial property activities.
Article 2.- Subjects of application
1. Individuals, legal entities and other subjects of the civil law (hereinafter collectively referred to as organizations and individuals).
2. Foreign organizations and individuals that satisfy all the conditions to enjoy the industrial property rights protection in Vietnam under treaties to which Vietnam is a contracting party.
Treaties mentioned in this Clause include:
a/ The 1883 Paris Convention for the Protection of Industrial Property, which was revised in 1967 (hereinafter referred to as the Paris Convention);
b/ The 2000 Vietnam-US Bilateral Trade Agreement;
c/ The 1999 Agreement on Protection of Intellectual Property Rights and Cooperation in the Field of Industrial Property between Vietnam and Switzerland.
d/ The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIP Agreement), to be applied from the time Vietnam becomes a member of the World Trade Organization (WTO).
e/ Other treaties concerning the protection of industrial property rights to which Vietnam is a contracting party.
Article 3.- Responsibilities for state management of industrial property
1. The Science and Technology Ministry has the following responsibilities for state management of industrial property:
a/ To formulate and organize the implementation of strategies and policies on protection of industrial property rights;
b/ To promulgate or submit to competent authorities for promulgation, and organize the implementation of, legal documents on industrial property;
c/ To organize the system of agencies performing the function of state management of industrial property;
d/ To provide professional guidance, and organize professional training and fostering in industrial property;
e/ To organize the establishment of industrial property rights, the registration of contracts on assignment of industrial property rights, and carry out other procedures concerning industrial property right protection titles;
f/ To exercise the right to compel the licensing of inventions according to the provisions of Article 147 of the Law on Intellectual Property;
g/ To assume the prime responsibility for, and coordinate with other agencies in, applying various measures to protect legitimate rights and interests of organizations, individuals, the State and society in industrial property;
h/ To manage the industrial property assessment activities; and to grant industrial property assessor’s cards;
i/ To inspect and examine the observance of the industrial property law; to settle complaints and denunciations and handle industrial property-related violations;
j/ To organize activities of industrial property information and statistics;
k/ To organize the education, dissemination and popularization of knowledge, policies and law on industrial property;
l/ To assume the prime responsibility for, and coordinate with the Education and Training Ministry and the Justice Ministry in, elaborating training programs and organizing the training and fostering of industrial property knowledge and law;
m/ To manage activities of industrial property representation; to grant practice certificates for provision of industrial property representation services;
n/ To enter into international cooperation on industrial property; to propose the settlement of industrial property disputes between Vietnam and other countries.
The National Office of Intellectual Property is an agency attached to the Science and Technology Ministry, having the responsibility to assist the Science and Technology Minister in performing the function of state management of industrial property. The Science and Technology Minister shall specify functions, tasks and powers of the National Office of Intellectual Property.
2. People’s Committees of provinces or centrally run cities have the following responsibilities for state management of industrial property in their respective localities:
a/ To organize the implementation of policies and law on industrial property;
b/ To elaborate, promulgate and organize the implementation of local regulations on industrial property;
c/ To organize the system for management of industrial property activities in their localities, and apply measures to raise the effectiveness of this system;
d/ To organize the dissemination and popularization of knowledge, policies and law on industrial property, and take measures to promote industrial property activities;
e/ To guide and assist organizations and individuals in carrying out industrial property-related procedures;
f/ To coordinate with concerned agencies in activities of protecting industrial property rights and handling violations of industrial property law;
g/ To inspect and examine the observance of industrial property law, and settle complaints and denunciations about industrial property in their localities;
h/ To manage geographical indications belonging to their localities;
i/ To enter into international cooperation on industrial property in their localities.
Provincial/municipal Science and Technology Services are agencies attached to People’s Committees of provinces or centrally run cities and responsible for assisting the People’s Committees in performing the function of state management of industrial property in their localities. People’s Committees of provinces or centrally run cities specify the functions, tasks and powers of provincial/municipal Science and Technology Services.
3. Ministries, ministerial-level agencies and government-attached agencies are responsible for organizing and directing the enforcement of industrial property law and managing industrial property subject matters under their management.
Article 4.- Method of calculation of term
The method of calculation of terms in industrial property activities complies with the provisions on terms in Chapter VIII, Part One of the Civil Code.
Article 5.- Industrial property fees and charges
The Finance Ministry assumes the prime responsibility for, and coordinates with the Science and Technology Ministry in, prescribing and guiding the collection, payment, management and use of industrial property fees and charges.
Chapter II

ESTABLISHMENT OF INDUSTRIAL PROPERTY RIGHTS

Article 6.- Bases and procedures for the establishment of industrial property rights
1. Industrial property rights to inventions, layout designs, industrial designs, marks and geographical indications are established on the basis of decisions of the state management agency in charge of industrial property which grants protection titles to applicants for registration of those objects according to the provisions of Chapters VII, VIII and IX of the Law on Intellectual Property. Industrial property rights to marks internationally registered under the Madrid Agreement and the Madrid Protocol are established on the basis of recognition of such international registration by the state management agency.
2. Industrial property rights to well-known marks are established on the basis of widespread use of those marks according to the provisions of Article 75 of the Law on Intellectual Property, not requiring the completion of registration procedures.
3. Industrial property rights to trade names are established on the basis of lawful use of those names according to geographical areas (territories) and business domains, not requiring the completion of registration procedures.
4. Industrial property rights to business secrets are established on the basis of financial and intellectual investments or any other lawful methods to find, create or acquire information and keep the confidentiality of information which constitutes those business secrets, not requiring the completion of registration procedures.
5. The Science and Technology Ministry specifies forms and contents of various industrial property registration applications prescribed in Articles 100, 101, 102, 103, 104, 105, 106 and 107 of the Law on Intellectual Property, guides the order and procedures for processing of applications, sets out forms of protection title and the national register of industrial property, and specifies the format and contents of the Industrial Property Official Gazette.
Article 7.- Right to registration of industrial property under treaties
1. Foreign organizations and individuals that satisfy the conditions for protection of industrial property rights in Vietnam specified in Article 2 of this Decree may file  applications for industrial property registration in Vietnam under treaties on or concerning international filing procedures.
Treaties mentioned in this Clause include:
a/ The 1970 Patent Cooperation Treaty, which was revised in 1984 (hereinafter referred to as the PCT for short);
b/ The 1891 Madrid Agreement on International Registration of Marks, which was revised in 1979 (hereinafter referred to as the Madrid Agreement) and the 1989 Protocol Relating to the Madrid Agreement (hereinafter referred to as the Madrid Protocol);
c/ Other treaties on or concerning international filing procedures to which Vietnam is a contracting party, as from the date such treaties become binding on Vietnam.
2. Vietnamese organizations and individuals may file applications for international industrial property registration to request the protection of their rights in Vietnam if it is so provided for by such treaties.
Article 8.- Right to registration of foreign geographical indications
Foreign individuals and organizations that are holders of rights to geographical indications under laws of countries of origin are entitled to register such geographical indications in Vietnam.
Article 9.- Right to registration of inventions, industrial designs and layout designs of the State
1. When an invention, an industrial design or a layout design is created on the basis of full financial, material and technical investments by the State, the right to registration of such invention, industrial design or layout design belongs to the State. The organization or state agency assigned by the State to act as the investor shall represent the State in exercising that right to registration.
2. When an invention, an industrial design or a layout design is created on the basis of capital contribution by the State (either in funds or material-technical facilities), part of the right to registration of such invention, industrial design or layout design belongs to the State in proportion to its capital contribution. The organization or state agency acting as the owner of the state investment capital shall represent the State in exercising that part of the right to registration.
3. When an invention, an industrial design or a layout design is created on the basis of research and development cooperation between a state agency or organization and another organization or individual, unless it is otherwise provided for in the research and development cooperation agreement, part of the right to registration of such invention, industrial design or layout design belongs to the State in proportion to such state agency’s or organization’s contribution to the cooperation. The state agency or organization which takes part in the research and development cooperation shall represent the State in exercising that right to registration.
4. The state agency or organization exercising the right to registration of an invention, an industrial design or a layout design specified in Clauses 1, 2 and 3 of this Article represents the State in being named as the protection title holder, manages industrial property rights to such object, and is entitled to assign the State’s part of the right to registration of invention, industrial design or layout design to another organization or individual if the assignee pays to the State a specified sum of money or satisfies reasonable commercial conditions compared with the commercial potential of such invention, industrial design or layout design.
Article 10.- Priority right of applications for registration of inventions, industrial designs or marks
The priority right of applications for registration of inventions, industrial designs or marks provided for in Article 91 of the Law on Intellectual Property applies as follows:
1. When the applicant for registration of an invention, an industrial design or a mark wishes to enjoy the priority right under the Paris Convention, his/her claim for such priority right is accepted if the following conditions are satisfied:
a/ He/she is a citizen of Vietnam or of a member country of the Paris Convention or resides or has a production or production establishment in Vietnam or in that member country;
b/ His/her first application has been filed in Vietnam or in a member country of the Paris Convention and contains a section relevant to the claim for priority right in the application for registration of invention, industrial design or mark;
c/ The registration application is filed within six months, for industrial design or mark registration applications; or twelve months for invention registration applications, as from the date of first filing;
d/ In the application for registration of an invention, industrial design or mark, the applicant clearly states his/her claim for the priority right and submits a copy of the first application specified at Point b of this Clause with certification by the agency which receives the first application in case of overseas filing;
e/ The fee for claim for priority right is fully paid.
2. If the applicant for registration of an invention, industrial design or a mark wants to enjoy the priority right under another treaty, his/her claim for such priority right is accepted if all the conditions for the priority right set out in that treaty are satisfied.
Article 11.- Invention international applications
1. In this Article, “PCT applications” are referred to the applications for invention registration which are filed under the PCT, including:
a/ Applications containing a claim for the protection in Vietnam and filed in any member countries of the PCT, including Vietnam (hereinafter referred to as PCT applications designating or selecting Vietnam);
b/ Applications filed in Vietnam and containing a claim for the protection in any member countries of the PCT, including Vietnam (hereinafter referred to as PCT applications originating from Vietnam).
2. The state management agency in charge of industrial property examines a PCT application selecting or designating Vietnam when the following conditions are fully satisfied:
a/ The applicant carries out procedures for registration of an invention at Vietnam’s state management agency in charge of industrial property (the national phase) under the PCT’s provisions within 31 months from the international filing date or from the priority date (if the priority right is claimed in the application);
b/ The applicant pays industrial property fees and charges according to the provisions of law.
3. A PCT application originating from Vietnam must be made in English or Russian and satisfy the PCT’s requirements on the form and contents. Applicants may file their applications with the state management agency in charge of industrial property or with the International Office of the World Intellectual Property Organization (WIPO).
4. The Science and Technology Ministry specifies the form and contents of, order and procedures for processing PCT applications from other countries designating or selecting Vietnam, and PCT applications originating from Vietnam.
Article 12.- Mark international applications
1. In this Article, “Madrid applications” are referred to the applications for international registration of marks filed under the Madrid Agreement or the Madrid Protocol, including:
a/ Applications originating from other member countries of the Madrid Agreement or the Madrid Protocol for protection of marks in Vietnam (hereinafter referred to as Madrid applications designating Vietnam);
b/ Applications filed in Vietnam for protection of marks in other member countries of the Madrid Agreement or the Madrid Protocol (hereinafter referred to as Madrid applications originating from Vietnam).
2. After being announced by the International Office of the World Intellectual Property Organization (WIPO), a Madrid application designating Vietnam shall go through the content examination like an application for mark registration filed according to national formalities.
For a mark accepted for protection, the state management agency in charge of industrial property shall issue and publish a decision on acceptance for protection of an internationally registered mark in the Industrial Property Official Gazette. At the request of an internationally registered mark owner, the state management agency in charge of industrial property issues a certificate of protection in Vietnam of internationally registered mark.
3. Vietnamese organizations or individuals may exercise the right to international registration of marks under the Madrid Agreement or the Madrid Protocol according to the following regulations:
a/ To file applications under the Madrid Agreement, if the protection is claimed in a member country of the Madrid Agreement, provided that they have been granted mark protection titles in Vietnam;
b/ To file applications under the Madrid Protocol, if the protection is claimed in a country which is a member of the Madrid Protocol but not a member of the Madrid Agreement, provided that they have filed applications for mark registration in Vietnam.
4. The state management agency in charge of industrial property receives Madrid applications originating from Vietnam.
5. The Science and Technology Ministry specifies the form and contents of, the order and procedures for processing of Madrid applications.
Article 13.- Establishment of industrial property rights on the basis of treaties on mutual protection recognition
1. When a treaty concerning industrial property to which Vietnam is a contracting party provides for the recognition and protection of industrial property rights of organizations and individuals of treaty members, industrial property rights of organizations and individuals of other members are recognized and protected in Vietnam.
Industrial property rights are protected within the scope and term of protection compliant with the provisions of treaties without having to complete the registration procedures specified in the Law on Intellectual Property.
2. The Science and Technology Ministry publishes all necessary information relevant to the industrial property rights recognized and protected in Vietnam under treaties.
Article 14.- Complaints about the registration of industrial property rights and settlement thereof
1. Applicants and all organizations and individuals with rights and interests directly related to decisions or notices concerning the processing of industrial property registration applications, which are issued by the state management agency in charge of industrial property, may lodge complaints with state management agency in charge of industrial property or initiate lawsuits at court according to the provisions of the Law on Intellectual Property and relevant laws. The time limit for settlement of complaints is specified in Clause 5 of this Article.
2. Upon the expiration of the time limit for settlement of complaints about decisions or notices concerning industrial property (first-time complaints) by agencies issuing such decisions or notices, if complaints are not settled or complainants disagree with complaint-settling decisions of these agencies, the complainants or persons with rights and interests directly related to those decisions may further lodge their complaints (second-time complaints) with the Science and Technology Minister or initiate lawsuits at court. Upon the expiration of the time limit for settlement of second-time complaints mentioned in Clause 5 of this Article, or if complainants disagree with complaint-settling decisions of the Science and Technology Minister, such complainants or persons with rights and interests directly related to those decisions may initiate lawsuits at court.
3. Contents of complaint must be presented in writing, clearly stating the full name and address of the complainant; serial number, signing date and contents of the complained notice or decision; contents of complaint, arguments and evidence on which the complaint is based; specific requests for the modification or annulment of the relevant notice or decision.
4. The right to complaint may only be exercised within the following time limit which does not include the period of time when the complainant cannot exercise his/her right to complaint due to any objective obstacle:
a/ The time limit for lodging a first-time complaint shall be 90 days from the date the person having the right to complaint receives or knows about the decision or notice on the processing of his/her industrial property registration application;
b/ The time limit for lodging a second-time complaint shall be 30 days from the date of expiration of the time limit for settlement of the first-time complaint specified in Clause 5 of this Article if by that date the first-time complaint is not settled, or from the date the person having the right to complaint receives or knows about the decision on settlement of the first-time complaint.
5. Within 10 days from the date of receipt of a complaint about the grant, amendment, invalidation, annulment or prolongation of validity of a protection title, the person competent to settle that complaint shall issue a notice of acceptance or rejection of such complaint, clearly stating the reason(s) for rejection.
The time limit for settlement of complaints complies with the provisions of law on complaints.
The period of time for amending or supplementing complaint dossiers shall not be included in the time limit for settlement of complaints.
6. The complaint-settling order and procedures comply with the provisions of law on complaints.
Chapter III

HOLDERS AND CONTENTS OF, AND LIMITATIONS ON, INDUSTRIAL PROPERTY RIGHTS

Article 15.- Industrial property rights holders
1. Industrial property rights holders include organizations and individuals being owners of industrial property objects specified in Article 121 of the Law on Intellectual Property or organizations and individuals being assigned the industrial property rights by owners, or authors of inventions, industrial designs or layout designs specified in Article 122 of the Law on Intellectual Property.
2. When a protection title for an invention, an industrial design, a layout design or a mark is commonly granted to more than one organizations or individuals according to the provisions of Clause 3, Article 86; Clause 5, Article 87; and Clause 2, Article 90 of the Law on Intellectual Property, the industrial property rights shall be under joint ownership of those organizations or individuals. Co-owners shall exercise the joint ownership according to the provisions of the civil law.
Article 16.- Scope of industrial property rights
1. Scope of industrial property rights to an invention, an industrial design, a layout design, a mark or a geographical indication is determined according to the scope of protection stated in the relevant protection title.
2. Scope of rights to a trade name is determined according to the scope of protection of the trade name, including the trade name, business domain and territory of business in which the trade name is lawfully used by the entity bearing such trade name. The registration of an appellation of a business organization or individual involved in business procedures shall not be considered the use of that appellation but merely constitute a condition for the use of that appellation to be considered lawful.
3. Scope of rights to a business secret is determined according to the scope of protection of that business secret, covering a combination of information constituting the business secret, arranged in an accurate order and sufficient enough for utilization.
4. Industrial property rights holders are entitled to enjoy the rights and discharge the obligations within the scope of protection and under the conditions specified in Articles 132, 133, 134, 135, 136 and 137 of the Law on Intellectual Property.
Article 17.- Respect for previously established rights
1. Industrial property rights of an organization or individual may be invalidated or banned from exercise if they conflict with previously established intellectual property rights of another organization or individual.
2. The Planning and Investment Ministry assumes the prime responsibility for, and coordinates with the Science and Technology Ministry in, guiding the naming of enterprises in business registration procedures to prevent the infringement of rights to marks, trade names or geographical indications already under protection.
Article 18.- Rights of authors of inventions, industrial designs or layout designs
1. The moral rights of authors provided for in Clause 2, Article 122 of the Law on Intellectual Property are protected for an infinite term.
2. The right of authors to receive remunerations provided for in Clause 3, Article 122 of the Law on Intellectual Property is protected throughout the term of protection of their inventions, industrial designs or layout designs.
3. Unless otherwise agreed between the owner and the author, the payment of remuneration must be made within 30 days as from the date of receipt by the owner of the licensing fee or the proceeds from each period of use of his/her invention, industrial design or layout design. If the invention, industrial design or layout design is used continuously, each payment installment must be made within six months after the completion of the preceding installment.
4. The Finance Ministry coordinates with the Science and Technology Ministry in detailing and guiding the method for determination of proceeds from the use of inventions, industrial designs or layout designs.
Article 19.- Exercise of the state ownership right to geographical indications
1. Agencies and organizations which are entitled to manage geographical indications defined in Clause 4, Article 121 of the Law on Intellectual Property include:
a/ The People’s Committee of the province or centrally run city where exists the geographical area subject to the geographical indication, if the geographical indication concerns one locality;
b/ The People’s Committee of a province or centrally run city which is an authorized representative of the People’s Committees of other provinces or centrally run cities where exists the geographical area subject to the geographical indication, if the geographical indication concerns more than one locality;
c/ Agencies or organizations empowered by People’s Committees of provinces or centrally run cities to manage geographical indications, if those agencies or organizations represent interests of all organizations and individuals granted the right to use such geographical indications according to the provisions of Clause 4, Article 121 of the Law on Intellectual Property.
2. Organizations managing geographical indications are entitled to exercise the rights of owners to geographical indications provided for in Clause 2, Article 123 and Artile 198 of the Law on Intellectual Property.
3. The Agriculture and Rural Development Ministry, the Fisheries Ministry and the Industry Ministry assumes the prime responsibility for, and coordinates with the People’s Committees of provinces or centrally run cities in, identifying specialties, features of products, processes of production of specialties bearing geographical indications managed by ministries, branches or localities.
4. People’s Committees of provinces or centrally run cities carry out the registration and organize the management of geographical indications used for local specialties.
Article 20.- Keeping of confidentiality of test data
The Health Ministry and the Agriculture and Rural Development Ministry assumes the prime responsibility for, and coordinates with the Science and Technology Ministry in, guiding the keeping of confidentiality of test data in the procedures of registration for circulation of products specified in Article 128 of the Law on Intellectual Property.
Article 21.- Use of industrial property objects
1. Acts of circulating products specified at Point d, Clause 1; Point b, Clause 2; Point b, Clause 5; and Point b, Clause 7, Article 124 of the Law on Intellectual Property include acts of selling, displaying for sale or transporting products.
2. Products lawfully put on the market, including overseas markets, specified at Point b, Clause 2, Article 125 of the Law on Intellectual Property mean products already put on the domestic or overseas market by owners, licensees, including licensees under compulsory licensing decisions, or persons with the right to prior use of industrial property objects.
Article 22.- Use of inventions on behalf of the State
1. The use of inventions on behalf of the State for public and non-commercial purposes or in service of national defense, security, disease prevention and treatment, nutrition for the people, or to meet other urgent social needs specified in Clause 1, Article 133 of the Law on Intellectual Property is effected by ministries and ministerial-level agencies or by other organizations and individuals designated by them under their decisions on compulsory licensing of the inventions specified at Point a, Clause 1, Article 145 and the second paragraph, Clause 1, Article 147 of the Law on Intellectual Property.
2. Procedures for issuing decisions on compulsory licensing of inventions in case of use of inventions on behalf of the State comply with the regulations of the branch-managing ministries.
Article 23.- Obligation to use inventions
1. When there arise needs of national defense, security, disease prevention and treatment and nutrition for the people or other urgent social needs but holders of the exclusive right to use inventions fail to perform the obligation to manufacture protected products or apply protected processes to satisfy those needs according to the provisions of Clause 1, Article 136 and Clause 5, Article 142 of the Law on Intellectual Property, the Science and Technology Ministry may license such inventions to other organizations or individuals by issuing decisions on compulsory licensing of inventions according to the provisions of Point b, Clause 1, Article 145 and the first paragraph, Clause 1, Article 147 of the Law on Intellectual Property.
2. When needs of national defense, security, disease prevention and treatment and nutrition for the people or other urgent social needs are satisfied by imported products or products manufactured by licensees of inventions under licensing contracts, holders of the exclusive right to use inventions shall not perform the obligation to manufacture protected products or apply protected processes mentioned in Clause 1 of this Article.
Chapter IV

ASSIGNMENT OF INDUSTRIAL PROPERTY RIGHTS

Article 24.- Compensation levels for the right to use inventions licensed under compulsory decisions
1. Compensation level for the right to use an invention licensed under a compulsory decision specified at Point d, Clause 1, Article 146 of the Law on Intellectual Property is determined according to the economic value of the licensed use right and based on the following elements:
a/ Invention licensing price under the contract;
b/ Funds invested in the creation of the invention, with the support fund from the state budget (if any) taken into account;
c/ Profits earned from the use of the invention;
d/ Remaining valid term of the protection title;
e/ Necessity of the invention licensing;
f/ Other elements directly decisive to the economic value of the licensed use right.
2. Compensation level does not exceed 5% of the net selling price of products manufactured under the invention, if the principle specified in Clause 1 of this Article is complied with.
3. Agencies competent to issue decisions on compulsory licensing of inventions may set up valuation councils or solicit expertise opinions to determine compensation levels specified in Clause 1 of this Article.
Article 25.- Dossier and procedure for licensing of inventions under compulsory decisions
1. Except for the case specified in Clause 2 of this Article, the Science and Technology Ministry specifies the form and contents of the dossier of request for licensing of inventions specified in Clause 1, Article 147 of the Law on Intellectual Property, and stipulates and organizes the implementation of procedures for receiving and handling requests for licensing of inventions.
2. The Health Ministry and the Agriculture and Rural Development Ministry assumes the prime responsibility for, and coordinates with the Science and Technology Ministry in, guiding and organizing the implementation of procedures for compulsory licensing of inventions and use of inventions on behalf of the State to satisfy needs of health care and nutrition for the people.
Article 26.- Dossier and procedure for registration of contracts for assignment of industrial property rights
1. The Science and Technology Ministry specifies the forms and contents of various dossiers for registration of contracts for assignment of industrial property rights specified in Article 149 of the Law on Intellectual Property.
2. The Science and Technology Ministry specifies the procedures for receiving and handling dossiers for registration of contracts for assignment of industrial property rights.
Chapter V

INDUSTRIAL PROPERTY REPRESENTATION

Article 27.- Programs on industrial property law training
1. The Science and Technology Ministry assumes the prime responsibility for, and coordinates with the Education and Training Ministry and the Justice Ministry in, specifying programs on industrial property law training mentioned in Clause 3, Article 155 of the Law on Intellectual Property.
2. Individuals are considered having graduated from a training course on industrial property law specified at Point d, Clause 2, Article 155 of the Law on Intellectual Property Law in the following cases:
a/ They are authors of university graduation theses or postgraduate theses on industrial property;
b/ They have graduated from training courses on industrial property accredited by the Science and Technology Ministry.
Article 28.- Examination of industrial property representation profession
1. The examination of industrial property representation profession shall be conducted to assess the capability to apply industrial property law to solving specific matters related to the establishment and protection of industrial property rights.
2. Contents of examination of industrial property representation profession include the skills of application of industrial property law to handling circumstances related to the protection of industrial property objects.
3. The Science and Technology Ministry guides and organizes the examination of industrial property representation profession.
Article 29.- Grant and withdrawal of industrial property representation service practice certificates
1. Industrial property representation service practice certificates are granted to individuals who satisfy the conditions specified in Clause 2, Article 155 of the Law on Intellectual Property at their requests after they pay fees and charges set by law.
2. An industrial property representation service practice certificate is withdrawn in the following cases:
a/ The grantee of the industrial property representation service practice certificate has quitted the job of industrial property representation;
b/ The grantee of the industrial property representation service practice certificate no longer satisfies the conditions specified in Clause 2, Article 155 of the Law on Intellectual Property;
c/ The grantee of the industrial property representation service practice certificate seriously violates the provisions of Clause 3, Article 152 and Article 153 of the Law on Intellectual Property;
d/ The grantee of the industrial property representation service practice certificate makes a serious professional mistake or commits a serious violation while practicing industrial property representation, causing damage to interests of the State and society;
e/ The grantee of the industrial property representation service practice certificate takes advantage of his/her capacity as an industrial property representative to conduct activities beyond the scope of industrial property representation service specified in Clause 1, Article 151 of the Law on Intellectual Property.
3. The Science and Technology Ministry grants and withdraws industrial property representation service practice certificates.
4. Organizations which fully satisfy the conditions specified in Article 154 of the Law on Intellectual Property are recorded as industrial property representation service organizations in the national register of industrial property representatives and published in the Industrial Property Official Gazette at their request and after they pay the set fees and charges.
5. An industrial property representation service organization has its name deleted from the national register of industrial property representatives and such deletion is published in the Industrial Property Official Gazette in the following cases:
a/ It no longer provides industrial property representation services;
b/ It no longer fully satisfies the conditions specified in Article 154 of the Law on Intellectual Property Law;
c/ It seriously violates the provisions of Clause 3, Article 152 and Article 153 of the Law on Intellectual Property;
d/ It makes a serious professional mistake or commits a serious violation while providing industrial property representation services, causing damage to interests of the State and society;
e/ It takes advantage of its capacity as an industrial property representative to conduct activities beyond the scope of industrial property representation service specified in Clause 1, Article 151 of the Law on Intellectual Property.
6. In the cases of certificate withdrawal or name deletion specified at Points c, d and e, Clause 2 or Points c, d and e, Clause 5 of this Article, requests for re-grant of industrial property representation service practice certificates or renewal of recordings of industrial property representation service organizations in the national register of industrial property representatives are considered three years after the withdrawal of certificates or deletion of names.
Chapter VI

MEASURES TO PROMOTE INDUSTRIAL PROPERTY ACTIVITIES

Article 30.- Training and fostering of human resources for industrial property activities
1. The Science and Technology Ministry assumes the prime responsibility for, and coordinates with the Education and Training Ministry and the Justice Ministry in, providing for in detail industrial property training and fostering contents and programs.
2. The Justice Ministry assumes the prime responsibility for, and coordinates with the Science and Technology Ministry in, organizing the elaboration of contents and programs of fostering of industrial property knowledge for judicial titles.
3. The Science and Technology Ministry assumes the prime responsibility for, and coordinates with concerned ministries and branches in, organizing the fostering of industrial property  for persons engaged in state management, examination, assessment and handling of violations and infringements in industrial property.
4. The Education and Training Ministry assumes the prime responsibility for, and coordinates with the Science and Technology Ministry in, formulating programs and organizing the industrial property training in training establishments.
Article 31.- Assurance of industrial property information
1. The industrial property information system consists of relevant information on all industrial property objects protected in Vietnam and information selected according to intents or topics on foreign industrial property objects which is classified and arranged in a proper and convenient manner in order to facilitate the search (reference), distribution and use.
2. The Science and Technology Ministry shall organize the setting up and management of industrial property information storages, develop classification and search tools, guide methods for search and use of domestic and foreign industrial property information; organize the supply of information in an adequate, timely and accurate manner, assuring the accessibility to information storages for entities with demands for information in service of the establishment and protection of industrial property rights, the research, development and business.
3. Research and development subjects or projects are not funded by the state budget if references to invention information are not made right at the stage of drafting such subjects or projects or if such subjects or projects are identical to existing invention information, except for those aimed at experimental application or development of technical know-how to utilize existing inventions.
The Science and Technology Ministry shall organize the provision of services of searching for invention information at the request of agencies, organizations or individuals engaged in the formulation, approval or appraisal for acceptance of research and development subjects or projects funded by the State, if the requesters pay the searching service fee set by the Finance Ministry.
Article 32.- Accounting of expenses and prices related to industrial property
1. Expenses for the following purposes are regarded as reasonable expenses of enterprises:
a/ Expenses for the creation of inventions, industrial designs or layout designs; expenses for the designing of marks or logos of the enterprises;
b/ Expenses for the completion of procedures for registration, maintenance and renewal of the rights to inventions, industrial designs, layout designs, marks or geographical indications, including the completion of those procedures in foreign countries;
c/ Expenses for the application of measures to protect the confidentiality of business secrets or to protect the rights to inventions, industrial designs, layout designs, marks or geographical indications;
d/ Expenses for the payment of remunerations to authors;
e/ Expenses for the purchase of the ownership right or the right to use inventions, industrial designs, layout designs, marks or business secrets.
2. Inventions, industrial designs, layout designs, marks, trade names or business secrets and effective relevant industrial property rights created by, transferred or assigned to, enterprises constitute intellectual assets of such enterprises and are accounted into their total assets.
3. The Finance Ministry assumes the prime responsibility for, and coordinates with the Science and Technology Ministry in, guiding the method of accounting industrial property-related expenses and the method of valuating intellectual assets specified in Clauses 1 and 2 of this Article.
Article 33.- Extension of the scope of use of state-owned inventions, industrial designs or layout designs
1. When protection title holders’ capability to utilize state-owned inventions, industrial designs or layout designs fails to satisfy social needs, other state organizations may request protection title holders to license such inventions, industrial designs or layout designs to them on the following conditions:
a/ The licensed right to use such inventions, industrial designs or layout designs is non-exclusive and shall not be sub-licensed to others;
b/ The scope of use of inventions, industrial designs or layout designs by licensees does not affect the utilization of such inventions, industrial designs or layout designs to the full capability of protection title holders.
c/ When inventions, industrial designs or layout designs are used for non-commercial purposes, the licensing fee to be paid by invention, industrial design or layout design licensees to protection title holders is equal to 50% of the amount payable by licensees which are not state organizations in order to receive the right to use such inventions, industrial designs or layout designs on other similar conditions.
2. The licensing of state-owned inventions, industrial designs or layout designs to state organizations specified in Clause 1 of this Article shall not affect the right of  protection title holders to license such objects to other non-state organizations.
Article 34.- Encouragement of industrial property activities of social organizations and socio-professional organizations
Social organizations and socio-professional organizations operating in the domain of industrial property are entitled to enjoy favorable conditions for performing their function of providing social consultations and criticisms in intellectual property and promoting non-public social service activities in order to bring into full play their role in assisting operations of state agencies and supporting industrial property rights holders.
Article 35.- Other measures to encourage creative activities
The State encourages and sponsors activities of creating technologies by:
1. Sponsoring technical innovation contests.
2. Commending, rewarding and popularizing experience, creative methods, advanced models of creative labor.
3. Supporting activities of establishing and protecting industrial property rights to creative labor’s achievements.
Chapter VII

IMPLEMENTATION PROVISIONS

Article 36.- Transitional provisions
1. Industrial property registration applications filed with the National Office of Intellectual Property before January 1, 2006, continue to be processed in accordance with the provisions of the 1995 Civil Code and its guiding documents.
2. Industrial property registration applications filed with the National Office of Intellectual Property in the period from January 1, 2006, to July 1, 2006, are also processed in accordance with the provision of the 1995 Civil Code and its guiding documents, and of which:
a/ An invention registration application may be used to request the grant of a utility solution patent, and in this case that application is processed like a utility solution registration application;
b/ Geographical indication registration applications are processed like applications for registration of appellations of origin of goods.
3. From January 1, 2006, to June 30, 2006, the rights and obligations provided for in protection titles granted under the 1995 Civil Code and the 2005 Civil Code are effective under the 2005 Civil Code and the provisions of the documents guiding the implementation of the 1995 Civil Code which are not contrary to those of the 2005 Civil Code.
4. Within one year after this Decree takes effect, organizations and individuals lawfully providing industrial property representation services under the 1995 Civil Code and its guiding documents may continue operating like those satisfying the business conditions and practice conditions specified in Articles 154 and 155 of the Law on Intellectual Property.
Article 37.- Effect of the Decree
This Decree takes effect 15 days after its publication in “CONG BAO.”
All previous provisions which are contrary to this Decree are hereby annulled.
Article 38.- Responsibilities to guide the implementation
1. The Science and Technology Minister shall guide the implementation of this Decree.
2. Ministers, heads of ministerial-level agencies and government-attached agencies and presidents of provincial/municipal People’s Committees shall implement this Decree.
 

The post Decree of Government No. 103/2006/ND-CP of September 22, 2006 detailing and guiding the implementation of a number of articles of The Law on Intellectual Property regarding industrial property appeared first on MP Law Firm.

THE GOVERNMENT
——-

SOCIALIST REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
———-

No. 100/2006/ND-CP

Hanoi, September 21, 2006

DECREE

DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE CIVIL CODE AND THE INTELLECTUAL PROPERTY LAW REGARDING THE COPYRIGHT AND RELATED RIGHTS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the June 14, 2005 Civil Code;
Pursuant to the November 29, 2005 Intellectual Property Law;
At the proposal of the Culture and Information Minister,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation
This Decree details and guides the implementation of a number of articles of the Civil Code and the Intellectual Property Law regarding the copyright and related rights.
Article 2.- Subjects of application
This Decree applies to Vietnamese organizations and individuals; and foreign organizations and individuals engaged in activities relating to copyright and related rights.
Article 3.- Protection of copyright and related rights
1. Protection of copyright means protection of the rights of authors to all types of literary, artistic and scientific works specified in Article 738 of the Civil Code and Articles 18, 19 and 20 of the Intellectual Property Law.
2. Protection of related rights means protection of the rights of performers to their performances; the rights of producers of phonograms and video recordings to such phonograms and video recordings; the rights of broadcasting organizations to their broadcasts and encrypted program-carrying satellite signals specified in Articles 745, 746, 747 and 748 of the Civil Code and Articles 29, 30 and 31 of the Intellectual Property Law.
Article 4.- Interpretation of terms
In this Decree, the terms below shall be construed as follows:
1. Posthumous works means those first published after their authors’ death.
2. Anonymous works means those published without indicating their authors’ names (real names or pseudonyms) thereon.
3. Original exemplars of works means versions presented in any material medium in which the creation of such works has been first fixed.
4. Copies of works means directly or indirectly reproduced versions of the entire or part of works. Photocopies of works are also regarded as copies.
5. Fixation means the expression in written languages, other characters, lines, three-dimensional figures, layouts, colors, sounds, images or the reproduction of sounds or images in whatever material form from which a work can be perceived, reproduced or otherwise communicated.
6. Phonograms and video recordings means fixations of sounds and images of performances or other sounds and images or the reproduction of sounds and images not in fixed forms as part of cinematographic works or other audiovisual works.
7. Copies of phonograms and video recordings means directly or indirectly reproduced versions of the entire or part of fixed phonograms and video recordings.
8. Publication of fixed performances or phonograms and video recordings means the public presentation of copies of such fixed performances or phonograms and video recordings with the consent of related rights holders.
9. Retransmission means the simultaneous transmission by one broadcasting organization of a broadcast from another such organization. Relay is also regarded as retransmission.
10. Encrypted program-carrying satellite signals means program-carrying signals transmitted by satellites in whatever forms in which audio or visual features or both have been changed so as to prevent the illegal receipt of such programs.
Article 5.- The State’s policies on copyright and related rights
The State’s policies on copyright and related rights provided for in Clauses 2, 3 and 4, Article 8 of the Intellectual Property Law include:
1. To provide financial supports for purchase of copyright by state agencies or organizations, which are tasked to popularize works, performances, phonograms, video recordings and broadcasts of ideological, scientific or artistic value for public interest, thus contributing to socio-economic development.
The Culture and Information Ministry shall assume the prime responsibility for, and coordinate with the Finance Ministry, the Planning and Investment Ministry and concerned agencies in, guiding the elaboration of financial plans (creation of sources and setting up of funds) and formulating mechanisms for copyright purchase.
The Culture and Information Ministry shall approve the lists of works eligible for supports for copyright purchase by central agencies or organizations, while provincial People’s Committees shall approve the lists of works eligible for supports for copyright purchase by local agencies or organizations.
2. To prioritize investment in training and retraining of cadres, civil servants and state employees engaged in the management and enforcement of copyright and related rights protection from the central to local levels.
To concentrate on training and retraining the contingent of cadres for performing the task of right self-protection in the collective representation of copyright and related rights.
3. To prioritize scientific research subjects concerning law, mechanisms and policies on, and the application of scientific-technical and technological solutions to, protection of copyright and related rights.
4. To intensify the education of knowledge on copyright and related rights in schools of all grades.
The Education and Training Ministry shall assume the prime responsibility for, and coordinate with the Culture and Information Ministry in, the inclusion of the copyright and related rights in the university, college and professional secondary education curricula.
Article 6.- Contents of, and responsibilities for, state management of copyright and related rights
1. The Government shall perform the unified state management of copyright and related rights.
2. The Culture and Information Ministry shall be responsible before the Government for state management of copyright and related rights and have the following tasks and powers:
a/ To formulate and direct the implementation of strategies, laws, mechanisms and policies on protection of copyright and related rights;
b/ To promulgate and organize and guide the implementation of legal documents on copyright and related rights according to the provisions of law;
c/ To take measures to protect lawful interests of the State, organizations or individuals in the domain of protection of copyright and related rights;
d/ To manage copyright to works (including computer programs and compilations of data), related rights to performances, phonograms, video recordings or broadcasts belonging to the State according to the provisions of law;
e/ To provide for the supply, cooperation, placement of orders and assurance of copyright to works and related rights to performances, phonograms, video recordings or broadcasts;
f/ To build up and manage the apparatus in charge of copyright and related rights; to organize the training and retraining of personnel in charge of copyright and related rights;
g/ To manage activities of organizations acting as collective agents of copyright and related rights;
h/ To grant, re-grant, renew or revoke copyright registration certificates, related rights registration certificates and other relevant procedures;
i/ To compile and manage the national register of copyright and related rights;
j/ To publish and distribute the Official Gazette on copyright and related rights;
k/ To organize and direct the education, propagation and dissemination of knowledge, law, mechanisms, policies on copyright and related rights and the activities of supplying information and making statistics on copyright and related rights;
l/ To organize and manage the assessment of copyright and related rights;
m/ To conduct inspection, examination and handling of violations of law on copyright and related rights; to settle complaints and denunciations about copyright and related rights;
n/ To enter into international cooperation on copyright and related rights.
3. The Culture and Information Ministry shall be responsible before the Government for assuming the prime responsibility for, and coordinating with ministries, ministerial-level agencies, government-attached agencies, and provincial/municipal People’s Committees (hereinafter referred to as provincial-level People’s Committees) in, performing the state management of copyright and related rights.
The Copyright Office of Vietnam is a body attached to the Culture and Information Ministry, assisting the Culture and Information Minister in performing the function of state management of copyright and related rights. The Culture and Information Minister shall specify the functions, tasks and powers of the Copyright Office of Vietnam in performing the state management of copyright and related rights.
The Culture and Information Ministry shall coordinate with the Science and Technology Ministry in formulating general guidelines, policies and law on protection of intellectual property rights, synthesizing general information on intellectual property, executing projects on international cooperation on intellectual property, and performing other common tasks under the Government’s direction.
4. Ministries, ministerial-level agencies, government-attached agencies and provincial-level People’s Committees shall, within the ambit of their respective tasks and powers, have to coordinate with the Culture and Information Ministry in performing the state management of copyright and related rights.
Article 7.- The state management competence of provincial-level People’s Committees
1. Provincial-level People’s Committees shall have the following tasks and powers:
a/ To organize and guide the enforcement of legal provisions on copyright and related rights in their respective localities;
b/ To promulgate according to their competence legal documents guiding and directing the enforcement of legal provisions, regimes and policies on copyright and related rights in suitability with local characteristices and conditions;
c/ To organize activities of protecting copyright and related rights in their localities; to apply measures to protect legitimate rights and interests of the State, organizations or individuals in relation to copyright and related rights;
d/ To inspect, examine and handle according to their competence complaints, denunciations and violations of legal provisions on copyright and related rights in their localities;
e/ To guide and receive applications for registration of copyright and related rights according to their competence and the provisions of law;
f/ To coordinate with the Culture and Information Ministry, concerned ministries, branches and provincial-level People’s Committees in protecting copyright and related rights.
2. Provincial/municipal Culture and Information Services shall assist provincial People’s Committees in performing the function of state management of copyright and related rights.
Presidents of provincial-level People’s Committees shall specify functions, tasks and powers of provincial/municipal Culture and Information Services, district-level and commune-level People’s Committees in performing the state management of copyright and related rights.
Chapter II

COPYRIGHT

Article 8.- Authors
1. Authors means persons who personally create part of or the entire literary, artistic or scientific works and include:
a/ Vietnamese individuals who have works covered by copyright protection;
b/ Foreign individuals who have works created and expressed in whatever material forms inVietnam;
c/ Foreign individuals who have works first published in Vietnam;
d/ Foreign individuals who have works protected in Vietnam under international conventions on copyright to which Vietnam is a contracting party.
2. Organizations and individuals that render supports, give comments or supply documents to others to create works shall not be recognized as authors.
Article 9.- Works presented in other characters
Works presented in other characters specified at Point a, Clause 1, Article 14 of the Intellectual Property Law means works presented in signs or symbols instead of written languages, i.e., Braille for the blind, shorthand signs and other similar signs, which can be reproduced or copied in different forms by interested parties.
Article 10.- Lectures, addresses and other sermons
Lectures, addresses and other sermons specified at Point b, Clause 1, Article 14 of the Intellectual Property Law constitute a type of work presented in spoken languages and required to be fixed in whatever material forms.
Article 11.- Press works
Press works specified at Point c, Clause 1, Article 14 of the Intellectual Property Law shall take the following forms: news articles, quick notes, news reports, interviews, features, investigative stories, commentaries, editorials, special articles, memoirs or other forms, which are published or transmitted on the print, audio, visual or online media or other media.
Article 12.- Musical works
Musical works specified at Point d, Clause 1, Article 14 of the Intellectual Property Law means works presented in the form of musical notes in musical pieces or other musical characters, with or without lyrics, regardless of whether they are performed or not.
Article 13.- Dramatic works
Dramatic works specified at Point e, Clause 1, Article 14 of the Intellectual Property Law means works of various performing arts, including drama (play, ballet, opera, pantomime), circus, dance, puppetry and works of other theatrical genres.
Article 14.- Cinematographic works
Cinematographic works and works created by a process analogous to cinematography specified at Point f, Clause 1, Article 14 of the Intellectual Property Law means works each consisting of a sequence of images that, when viewed in rapid succession, gives the appearance of movement, with or without soundtracks, fixed on a specific medium, able to be distributed or communicated to the public by technical devices and technologies, and including feature films, documentaries, scientific films, cartoons and other similar genres.
Article 15.- Plastic-art works and works of applied art
1. Plastic-art works specified at Point g, Clause 1, Article 14 of the Intellectual Property Law means works presented by lines, colors, three-dimensional figures or layouts, such as works of fine-arts, graphic arts, sculpture, installation arts and similar forms of presentation, which are available in unique copies. Particularly, a work of graphic art may be presented in as many as 50 copies which are ordinally numbered and bear the author’s signature.
2. Works of applied arts specified at Point g, Clause 1, Article 14 of the Intellectual Property Law means works presented by lines, colors, three-dimensional figures or layouts, having useful features associated with useful objects, and being mass-produced by hand or by machines, such as: logos; handicraft and fine-arts articles; expressions on products or packages.
Article 16.- Photographic works
Photographic works specified at Point h, Clause 1, Article 14 of the Intellectual Property Law means works showing images of the objective world on photosensitive materials or other media on which images are created or can be created by any technical methods (chemical, electronic or other methods).
Still images taken from a cinematographic work or a work created by a process analogous to cinematography shall not be regarded as photographic work but part of that cinematographic work.
Article 17.- Architectural works
Architectural works specified at Point i, Clause 1, Article 14 of the Intellectual Property Law means design drawings in any forms conveying creative ideas about houses, construction works or spatial plans (construction plans), completely built or not. An architectural work consists of design drawings of floor space, elevation, cross-section and perspective, which convey creative ideas about a house, a work or an architectural complex, spatial organization or landscape architecture of an area, an urban center, system or functional quarter, or a rural population area.
Models or relief plans of houses, construction works or spatial plans shall be recognized as independent architectural works.
Article 18.- Sketches, plans, maps and drawings
Sketches, plans, maps and drawings specified at Point j, Clause 1, Article 14 of the Intellectual Property Law include sketches, plans, maps and drawings related to terrains, and various types of scientific and artchitectural works.
Article 19.- Copyright to cinematographic works and dramatic works
1. A cinematographic or dramatic work is created by a collective of authors. Persons who take part in the creation of a cinematographic or dramatic work defined in Clause 1, Article 21 of the Intellectual Property Law shall enjoy the moral rights to their parts of creative work according to the provisions of Clauses 1, 2 and 4, Article 19 of the Intellectual Property Law.
Producers, directors and screenwriters may agree on the exercise of the right to title their cinematographic works provided for in Clause 1, Article 19 of the Intellectual Property Law, and the right to modify screenplays of their cinematographic works provided for in Clause 4, Article 19 of the Intellectual Property Law.
2. Organizations and individuals that invest finance and material-technical facilities in the production of cinematographic works or the staging of dramatic works defined in Clause 2, Article 21 of the Intellectual Property Law shall be holders of the rights provided for in Clause 3, Article 19, and Article 20 of the Intellectual Property Law.
Organizations and individuals that invest finance and material-technical facilities in the production of cinematographic works or the staging of dramatic works may agree on the exercise of the rights provided for in Clause 3, Article 19, and Article 20 of the Intellectual Property Law and the performance of the obligations specified in Clause 3, Article 21 of the Intellectual Property Law.
Article 20.- Use of folklore and folk art works
1. Folklore and folk art works specified at Points a, b and c, Clause 1, Article 23 of the Intellectual Property Law shall be protected regardless of their fixation.
2. The use of folklore and folk art works specified in Clause 2, Article 23 of the Intellectual Property Law means the research into, collection and introduction of true values of such folklore and folk art works.
3. Users of folklore and folk art works mentioned in Clause 2 of this Article must agree on the payment of remuneration to keepers of such folklore and folk art works and shall enjoy copyright to their researches, collections or introductions.
4. Reference to sources of folklore and folk art works mentioned in Clause 2, Article 23 of the Intellectual Property Law means the indication of geographical areas inhabited by population communities where such folklore and folk art works are created.
Article 21.- Objects not covered by copyright protection
1. News of the day as mere items of press information specified in Clause 1, Article 15 of the Intellectual Property Law means daily news briefs which are merely of informatory nature and contain no creative elements.
2. Administrative documents specified in Clause 2, Article 15 of the Intellectual Property Law include documents issued by state agencies, political organizations, socio-political organizations, socio-political-professional organizations, social organizations, socio-professional organizations, economic organizations, people’s armed forces units and other organizations defined by law.
Article 22.- Moral rights
1. The right to title works provided for in Clause 1, Article 19 of the Intellectual Property Law shall not apply to works translated from one language into another.
2. The right to publish works or authorize other persons to publish works provided for in Clause 3, Article 19 of the Intellectual Property Law means the right of the author or copyright holder of a work or another individual or organization authorized by the author or copyright holder to make a work available to the public in a sufficient amount of copies to satisfy the reasonable demand of the public, depending on the nature of the work.
Publication of a work does not mean the performance of a dramatic, cinematographic or musical work; public recitation of a literary work; broadcasting of a literary or artistic work; exhibition of a plastic work; or construction of structures based on an architectural work.
3. The right to protect the integrity of works and to prevent other persons from modifying or mutilating works provided for in Clause 4, Article 19 of the Intellectual Property Law means the right of the author of a work to prevent other persons from modifying or multilating his/her work without his/her consent.
4. Authors of computer programs and investors in production of computer programs may agree on the titling and development of such computer programs.
Article 23.- Economic rights
1. The right to perform works before the public provided for at Point b, Clause 1, Article 20 of the Intellectual Property Law means the exclusive right of copyright holders or their authorized persons to perform works either directly or through phonograms or video recordings or with whatever technical devices accessible by the public.
In this Clause, public performance of works means performance of works anywhere except in the family.
2. The right to reproduce works provided for at Point c, Clause 1, Article 20 of the Intellectual Property Law means the exclusive right of copyright holders or their authorized persons to make copies of works by whatever means or in whatever form, including permanent or provisional backup of works in electronic form.
3. The right to distribute original works or copies thereof provided for at Point d, Clause 1, Article 20 of the Intellectual Property Law means the exclusive right of copyright holders or their authorized persons in whatever forms or with the assistance of whatever technical devices accessible by the public to sell, lease or otherwise assign their original works or copies thereof.
For plastic or photographic works, the distribution of works also means the public display or exhibition thereof.
4. The right to communicate works to the public by wire or wireless means, electronic information networks or any other technical means provided for at Point e, Clause 1, Article 20 of the Intellectual Property Law means the exclusive right of copyright holders or their authorized persons to make their works or copies thereof available to the public, in such a way that members of the public may access such works from a place and at a time they themselves select.
5. The right to lease original cinematographic works and computer programs or copies thereof provided for at Point f, Clause 1, Article 20 of the Intellectual Property Law means the exclusive right of copyright holders or their authorized persons to lease their works for use within a definite term.
The right to lease works shall not apply to computer programs which do not themselves constitute principal objects for lease, such as computer programs conducive to the normal operation of means of transport as well as other machines and technical devices.
Article 24.- Reasonable recitation and importation of copies of works
1. Reasonable recitation of a work by a person without misrepresenting the author’s views for commentary or illustrative purpose in his/her work as provided for at Point b, Clause 1, Article 25 of the Intellectual Property Law must satisfy the following conditions:
a/ The recited parts aim merely to introduce, comment or clarify matters touched upon in his/her work;
b/ The number and essence of parts recited from the work used for recitation are not prejudicial to the copyright to such work and suitable to the nature and characteristics of the type of work used for recitation.
2. Importation of copies of another person’s work for personal use as provided for at Point j, Clause 1, Article 25 of the Intellectual Property Law shall only apply to case of importation of no more than one copy of a work.
3. The use of works in the cases specified in Clause 1, Article 25 of the Intellectual Property Law shall not apply to the reproduction of architectural or plastic works and computer programs.
Article 25.- Reproduction of works
1. Duplication of works by their authors provided for at Point a, Clause 1, Article 25 of the Intellectual Property Law shall apply to the case of non-commercial scientific research or teaching by individuals.
2. Reprographic reproduction of works by libraries for archival and research purpose provided for at Point e, Clause 1, Article 25 of the Intellectual Property Law means reproduction of no more than one copy of a work. Libraries must not reproduce and distribute copies of works, including digital copies, to the public.
Article 26.- Term of copyright protection
1. The term of protection of economic rights and moral rights provided for in Clause 3, Article 19 of the Intellectual Property Law for a posthumous work shall be fifty years as from the date of its first publication.
2. The term of protection of economic rights and moral rights provided for in Clause 3, Article 19 of the Intellectual Property Law for a photographic work or a work of applied art provided for at Point a, Clause 2, Article 27 of the Intellectual Property Law shall be fifty years as from the date of its first publication. Within fifty years after the fixation of a work, if it has not yet been published, the term of protection shall be fifty years from the date of its fixation.
3. As from July 1, 2006 – the effective date of the Intellectual Property Law, the term of protection of photographic works and works of applied art shall be calculated according to the provisions of Clause 2 of this Article.
Article 27.- Copyright holders
Copyright holders defined in Article 36 of the Intellectual Property Law include:
1. Vietnamese organizations and individuals;
2. Foreign organizations and individuals that have works created and expressed in whatever material forms in Vietnam;
3. Foreign organizations and individuals that have works first published in Vietnam;
4. Foreign organizations and individuals that have works protected in Vietnam under international conventions on copyright to which Vietnam is a contracting party.
Article 28.- Holders of copyright to anonymous works
1. Anonymous works specified at Point a, Clause 1, Article 42 of the Intellectual Property Law shall be under the state ownership.
2. Where an anonymous work is managed by an organization or individual, such organization or individual shall enjoy the rights of a copyright holder.
3. When the name of the real owner of a work is identified, the ownership of the work shall belong to such owner as from the date his/her name is identified.
Article 29.- Use of works under the state ownership
1. Except in the cases specified in Clauses 2 and 3, Article 28 of this Decree, when using works under the state ownership specified at Points a and b, Clause 1, Article 42 of the Intellectual Property Law, organizations and individuals shall have to perform the following obligations:
a/ Asking for the use permission;
b/ Paying royalty, remuneration and other material benefits;
c/ Depositing a copy of the work within thirty days as from the date of publication or distribution.
2. Organizations and individuals shall perform the obligations specified in Clause 1 of this Article at the Copyright Office of Vietnam.
3. The Copyright Office of Vietnam shall be responsible for receiving copyright assigned in any form by organizations and individuals defined at Point c, Clause 1, Article 42 of the Intellectual Property Law according to the provisions of law.
The Culture and Information Ministry and the Finance Ministry shall prescribe the financial management regime applicable to amounts specified at Point b, Clause 1 of this Article.
Article 30.- Use of works belonging to the public
1. Organizations and individuals that use works belonging to the public, which are specified in Article 43 of the Intellectual Property Law, must respect the moral rights provided for in Clauses 1, 2 and 4, Article 19 of the Intellectual Property Law.
Holders of copyright to works belonging to the public shall not enjoy the right to publish such works, provided for in Clause 3, Article 19, and the economic rights provided for in Article 20 of the Intellectual Property Law.
2. When detecting acts of infringing upon the moral rights provided for in Clauses 1, 2 and 4, Article 19 of the Intellectual Property Law to works for which the term of protection has expired, state agencies, organizations and individuals that have related rights and obligations may request persons committing acts of infringement to stop such acts, make public apology or correction, and pay damages; may lodge complaints or denunciations or request competent state agencies to handle such acts. Depending on the nature and severity of violations, violating organizations or individuals may be handled according to the provisions of administrative, civil or penal law.
Socio-political-professional organizations, socio-professional organizations, organizations acting as collective representatives of copyright or related rights may request competent state agencies to protect the moral rights to works of their members for which the term of protection has expired.
Chapter III

RELATED RIGHTS

Article 31.- Rights of performers
1. Direct reproduction of performances which have been fixed on phonograms or video recordings according to the provisions of Point b, Clause 3, Article 29 of the Intellectual Property Law means the making of other copies from these phonograms or video recordings.
2. Indirect reproduction of performances which have been fixed on phonograms or video recordings according to the provisions of Point b, Clause 3, Article 29 of the Intellectual Property Law means the making of other copies from sources other than these phonograms or video recordings, such as websites, broadcasts, services of relevant post and telecommunications networks and similar media.
3. Public communication by other modes of unfixed performances specified at Point c, Clause 3, Article 29 of the Intellectual Property Law means the public distribution of unfixed performances by whatever technical modes other than transmission.
Article 32.- Use of related rights, requiring no permission and payment of royalties and/or remunerations
Cases of use of related rights not for commercial purposes shall not require permission and payment of royalties and/or remunerations, including:
1. Duplication of works by authors for scientific research purpose as specified at Point a, Clause 1, Article 32 of the Intellectual Property Law.
2. Duplication of works by authors for teaching purpose, except for performances, phonograms, video recordings or broadcasts which have been published for teaching purpose as specified at Point b, Clause 1, Article 32 of the Intellectual Property Law.
Article 33.- Reasonable recitation
Reasonable recitation for informatory purpose specified at Point c, Clause 1, Article 32 of the Intellectual Property Law means the use of quotations for merely informatory purpose and must satisfy the following conditions:
1. Recited parts aim only to introduce, comment or clarify some matters in the supplied information;
2. The number and essence of parts recited from performances, phonograms, video recordings or broadcasts are not prejudicial to the rights of performers, the rights of producers of phonograms or video recordings, the rights of broadcasting organizations to their performances, phonograms, video recordings or broadcasts used for recitation; and are suitable to the nature and characteristics of performances, phonograms, video recordings or broadcasts used for recitation.
Article 34.- Provisional copies
Provisional copies of broadcasts of broadcasting organizations which enjoy the broadcasting right specified at Point d, Clause 1, Article 32 of the Intellectual Property Law means copies fixed for a definite term by broadcasting organizations with their instruments and equipment to serve their own coming-up broadcasting sessions. In special cases, such copies shall be stored at an official archive center.
Article 35.- Use of phonograms and video recordings
1. Direct use of phonograms or video recordings already published for commercial purposes in making broadcasts which are sponsored, advertised or charged in whatever form specified at Point a, Clause 1, Article 33 of the Intellectual Property Law means the transmission by broadcasting organizations of such phonograms or video recordings by wire or wireless means, including the transmission by satellites or in digital environment.
Indirect use of phonograms or video recordings already published for commercial purposes in making broadcasts which are sponsored, advertised or charged in whatever form specified at Point a, Clause 1, Article 33 of the Intellectual Property Law means the relay or retransmission of transmitted broadcasts; or putting of broadcasts in digital environment on air.
2. Use of phonograms or video recordings already published in business or commercial activities specified at Point b, Clause 1, Article 33 of the Intellectual Property Law means the direct or indirect use by organizations or individuals of published phonograms or video recordings in restaurants, hotels, shops and department stores; in establishments providing karaoke, post, telecommunications or ditigal environment services; in tourist, aviation, mass transit activities and other business and commercial activities.
3. When phonograms or video recordings are used as specified in Article 33 of the Intellectual Property Law, performers shall enjoy remunerations on the basis of agreements made with producers or in the course of producing such phonograms or video recordings.
The proportional sharing of royalties, remunerations and other material benefits shall be agreed upon by rights holders or organizations acting as collective representatives of copyright and related rights.
Organizations acting as collective representatives of copyright and related rights may entrust one of them to collect and distribute royalties, remunerations and other material benefits. Entrusted organizations being collective representatives of copyright and related rights shall enjoy a charge as agreed upon.
Article 36.- Owners of broadcasts
Owners of broadcasts specified in Clause 3, Article 44 of the Intellectual Property Law means broadcasting organizations which invest their finance and material-technical facilities in broadcasting activities.
When using works, phonograms or video recordings for the production of broadcasts, broadcasting organizations shall have to perform obligations toward copyright holders and related rights holders according to the provisions of law.
Chapter IV

COPYRIGHT AND RELATED RIGHTS REGISTRATION CERTIFICATES

Article 37.- Registration of copyright and related rights
1. Authors, copyright holders and related rights holders specified in Article 50 of the Intellectual Property Law may directly file applications for registration of copyright or related rights with the Copyright Office of Vietnam and Culture or Information Services of provinces or cities where they are based or reside, or authorize other organizations or individuals to do so.
2. Foreign individuals and organizations whose works, performances, phonograms, video recordings or broadcasts are covered by copyright and related rights protection specified in Clause 2, Article 13 and Article 17 of the Intellectual Property Law may directly file applications for copyright and related rights registration with the Copyright Office of Vietnam or Culture and Information Services of provinces or cities where they are based or reside, or authorize copyright and related rights consultancy or service organizations to do so.
Article 38.- Copies of works registered for copyright, copies of fixations of performances, phonograms, video recordings or broadcasts registered for related rights
1. The Copyright Office of Vietnam is responsible for keeping one copy of a work registered for copyright or one copy of a fixation of an object registered for related rights specified at Point b, Clause 2, Article 50 of the Intellectual Property Law after granting a copyright registration certificate or related rights registration certificate.
2. Copies of works registered for copyright specified at Point b, Clause 2, Article 50 of the Intellectual Property Law may be substituted by three-dimensional photos thereof, for works with particular features, such as paintings, statues, monuments, bas reliefs or murals attached to architectures; and oversized works.
Article 39.- Competence to grant copyright registration certificates and related rights registration certificates
1. The Copyright Office of Vietnam is competent to grant, re-grant, renew or revoke copyright registration certificates and related rights registration certificates defined in Clauses 1 and 2, Article 51 of the Intellectual Property Law.
a/ Authors, copyright holders and related rights holders that wish to have their copyright registration certificates or related rights registration certificates re-granted or renewed shall file applications, clearing stating reasons for re-grant or renewal, and dossiers according to the provisions of Article 50 of the Intellectual Property Law;
b/ The Copyright Office of Vietnam shall re-grant copyright registration certificates or related rights registration certificates in case such copyright registration certificates or related rights registration certificates are lost; renew copyright registration certificates or related rights registration certificates which are torn or damaged or of which copyright holders or related rights holders are changed;
c/ When the Copyright Office of Vietnam determines that persons granted copyright registration certificates or related rights registration certificates are not authors or copyright or related rights holders or the registered works, performances, phonograms, video recordings or broadcasts are not covered by copyright protection, it shall revoke copyright registration certificates or related rights registration certificates according to the provisions of law.
2. After receiving applications for registration, re-grant or renewal of copyright registration certificates or related rights registration certificates according to the provisions of law, provincial/municipal Culture and Information Services shall forward them to the Copyright Office of Vietnam for examination and handling according to its competence.
Right after receiving results of examination and handling of applications from the Copyright Office of Vietnam, provincial/municipal Culture and Information Services shall have to forward such results to application-filing organizations and individuals.
3. When carrying out procedures related to copyright or related rights, organizations and individuals are obliged to pay charges and fees to the Copyright Office of Vietnam according to the provisions of law.
4. The Culture and Information Ministry shall set forms of registration application, copyright registration certificate and related rights registration certificate.
Article 40.- Validity of copyright registration certificates and related rights registration certificates
Various kinds of copyright certificates granted by the Copyright Protection Firm of Vietnam, the Copyright Protection Agency of Vietnam or the Copyright Office of Vietnam prior to the effective dates of the Civil Code and the Intellectual Property Law shall continue to be valid.
Chapter V

ORGANIZATIONS ACTING AS COLLECTIVE REPRESENTATIVES OF COPYRIGHT AND RELATED RIGHTS, ORGANIZATIONS PROVIDING COPYRIGHT AND RELATED RIGHTS CONSULTANCY OR SERVICES

Article 41.- Organizations acting as collective representatives of copyright or related rights
1. Organizations acting as collective representatives of copyright or related rights specified in Clause 1, Article 56 of the Intellectual Property Law must satisfy the following conditions for their operation:
a/ They are authorized by authors, copyright holders or related rights holders;
b/ They are authorized to represent authors, copyright holders or related rights holders in managing a specific right or group of rights;
c/ The collection and distribution of royalties, remunerations and other material benefits generated from the exercise of a right or a group of rights specified in their operation charters.
2. When authors, copyright holders or related rights holders have not yet authorized any organizations to act as collective representatives of copyright or related rights, the Culture and Information Ministry shall guide the division of royalties, remunerations and other material benefits.
3. Where a work, phonogram, video recording or broadcast is related to rights and benefits of many organizations authorized to act as collective representatives of different rights or groups of rights, the involved parties may agree to designate one of them to negotiate on their behalf on the grant of use licenses, collect and divide money, and report to the Culture and Information Ministry before doing so.
4. Organizations acting as collective representatives of copyright or related rights shall biannually, annually or extraordinarily report and supply information on their activities to the Copyright Office of Vietnam.
Article 42.- Organizations providing copyright and related rights consultancy or services
1. Organizations providing copyright and related rights consultancy or services shall be established according to the provisions of Clause 1, Article 57 of the Intellectual Property Law when their heads and individuals engaged in the provision of copyright and related rights consultancy or services fully satisfy the following conditions:
a/ Being Vietnamese citizens and having full civil act capacity;
b/ Permanently residing in Vietnam;
c/ Possessing law university degree.
2. They shall biannually, annually or extraordinarily report and supply information on their copyright and related rights consultancy or services to the Copyright Office of Vietnam.
Chapter VI

PROTECTION OF COPYRIGHT AND RELATED RIGHTS

Article 43.- Right to self-protection
1. The application of technological measures to prevent acts of infringing upon copyright and related rights specified at Point a, Clause 1, Article 198 of the Intellectual Property Law means the communication by right holders of right management information attached to original works, phonograms, video recordings or broadcasts or copies thereof; the disclosure of right management information to make them available together with the public communication of works in order to identify works, their authors and right holders, and to supply information on term of protection, conditions for use of works as well as all data, codes or signs used to express such information for the purpose of protection of copyright and related rights. At the same time, right holders may apply technological measures to protect right management information and prevent acts of making access to works or illegally exercising their ownership right according to the provisions of law.
2. Right holders may apply other measures specified in Clause 1, Article 198 of the Intellectual Property Law to protect their legitimate rights and interests.
Article 44.- Right to initiate civil lawsuits on copyright or related rights
1. The following right holders may initiate lawsuits at competent courts to protect their legitimate rights and interests related to copyright or related rights:
a/ Authors;
b/ Copyright or related rights holders;
c/ Lawful heirs of authors or copyright or related rights holders;
d/ Individuals or organizations assigned with rights of copyright or related rights holders;
e/ Individuals or organizations using works under contracts;
f/ Performers;
g/ Producers of phonograms or video recordings;
h/ Broadcasting organizations;
i/ Organizations acting as collective representatives of copyright or related rights, vested with power of attorney;
j/ Other right holders specified by law.
2. Involved state agencies and organizations shall, within the ambit of their tasks and powers, have the right to initiate civil lawsuits to request the court to protect the public interest and the State’s interest in the domain of copyright and related rights.
Article 45.- Complaints and denunciations about the registration of copyright or related rights
1. The following persons may lodge complaints or denunciations:
a/ Authors, copyright holders, related rights holders, their authorized organizations or individuals may complain about the grant, re-grant, renewal or revocation of copyright registration certificates or related rights registration certificates;
b/ Any third party may denounce the grant of copyright registration certificates or related rights registration certificates.
2. Procedures for lodging complaints or denunciations are specified as follows:
a/ Persons complaining about the registration of copyright or related rights must lodge complaints with the Copyright Office of Vietnam, clearly stating the date of making complaints; their names and addresses; names and addresses of complained agencies, organizations or individuals; contents of and reasons for complaints, and their requests. Complaints must bear signatures of complainants. Enclosed with complaints must be such documents as copyright registration certificates, related rights registration certificates, decisions on revocation of such certificates or written refusals to grant, re-grant or renew such certificates, and other relevant documents and proofs;
b/ Denouncers must file their denunciations with competent state agencies, clearly stating the date of making denunciations; their names and addresses; names and addresses of denounced agencies, organizations or individuals; contents of and reasons for denunciations and their requests. Denunciations must bear signatures of denouncers. Enclosed with denunciations must be relevant documents and proofs.
3. Within a time limit set by the Law on Complaints and Denunciations, the Copyright Office of Vietnam, the Culture and Information Ministry or competent state agencies shall have to reply in writing complainants or denouncers.
4. If complainants or denouncers disagree with replies of the Copyright Office of Vietnam, the Culture and Information Ministry or competent state agencies, they may further lodge their complaints or denunciations with competent authorities according to the provisions of law.
Chapter VII

IMPLEMENTATION PROVISIONS

Article 46.- Transitional duration
1. Copyright and related rights which are protected under the provisions of the legal documents with effective dates prior to the effective date of the Intellectual Property Law and still in the term of protection on the effective date of the Intellectual Property Law shall be further protected under the provisions of the Intellectual Property Law.
2. Applications for registration of copyright or related rights, already filed with competent agencies before the effective date of the Intellectual Property Law, shall be handled according to the provisions of legal documents in force at the time of filing.
3. All acts infringing upon copyright or related rights or breaching contracts committed before the effective date of the Intellectual Property Law shall be handled according to the provisions of law which are in force at the time of commission.
Article 47.- Effect
This Decree shall take effect 15 days after its publication in “CONG BAO.” This Decree replaces the Government’s Decree No. 76/CP of November 29, 1996, guiding the implementation of a number of the Civil Code’s provisions on copyright.
Article 48.- Implementation responsibilities
1. Ministers, heads of ministerial-level agencies and government-attached agencies, presidents of People’s Committees of provinces or centrally run cities, agencies, organizations and individuals that have related rights and obligations shall have to implement this Decree.
2. The Culture and Information Minister shall have to guide and organize the implementation of this Decree.
 

The post Decree No. 100/2006/ND-CP of September 21, 2006, detailing and guiding the implementation of a number of articles of the civil code and the intellectual property law regarding the copyright and related rights appeared first on MP Law Firm.