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Number of Laws and Legal regulation taking effect on January 2010

23/07/2013
New IP law (Amended IP Law) to amend and supplement a number of articles in the existing IP Law (IP Law year 2005)

Amended IP law

New IP law (Amended IP Law) to amend and supplement a number of articles in the existing IP Law (IP Law year 2005)

A range of changes have been introduced into the IP law.  Some of the most important are summarised below:

  • To bring Vietnam into line with other WTO countries, the term of copyright protection for cinematographic works, photographic works, applied art works and anonymous works has been extended from 50 years to 75 years from the date of first publication.  Where the work is not published within 25 years of the date of fixation, the term will be 100 years.
  • Administrative actions are currently available only if the infringing act causes loss to consumers or society, or the infringer has not ceased the infringement after a warning.   The scope of acts liable for administrative sanction will be extended to include acts that cause loss to the IP owner.  Accordingly, it seems that a warning letter will no longer be a pre-condition for taking administrative action in relation to these infringements. It is not clear, however, whether it will be necessary to establish actual loss.  Detailed guidance will hopefully be introduced prior to 1 January 2010.
  • The time limit for substantive examination of IP applications has been increased to enable the National Office of Intellectual Property (NOIP) to deal with the current backlog.
  • The NOIP will be able to provide expert opinions or assessments.  This will be of assistance to IP owners looking to take administrative action.

The Law on State responsibility for damages:

As of January 1, 2010 the State will have to compensate victims for illegal acts committed by on-duty officers. The Law on State responsibility for damages stipulates that individuals and organisations suffering material damages or spiritual loss caused by on-duty officers relating to administration management, court rulings and prosecution are entitled to sue the State for damages. This is the first time Vietnam has clearly defined 11 illegal actions by on-duty officers that would require the State to compensate.

Amended Penal Code:

The Penal Code has been amended providing criminal penalty against the violation of the copyright (and related rights) and willful infringements of industrial rights over trade marks or geographical indications on a commercial scale.  It is encouraging that the amended provisions are in compliance with the obligations under the TRIPS and BTA. In fact it goes further than the obligation under the TRIPS agreement which require for 'criminal liability against willful trade mark counterfeiting or copyright piracy on a commercial scale' only.

 With regards to copyright and related rights violations, the maximum penalty level can reach VND 500 million (approximately USD 28,000). Previously, under Decree No. 56, the maximum penalty was VND 70 million (approximately USD 3,900). In addition to monetary penalties, infringers may be required to proceed with certain steps to remedy their infringement, such as having the goods destroyed and/or destroying or re-exporting equipment used in violations. Decree No. 47 also clearly grants to various levels and types of authorities the power to impose specific fine levels.

The above-mentioned amendments, which bring Vietnam's IP system a step closer to international standards, will be welcomed by IP owners.  There are, however, a number of areas in which further guidance is required. Hopefully, this guidance will be provided before the amendments come into force on 1 January 2010. 

Pham & Associates

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