Brief of New changes in Vietnam IP Law amended in 2022

On June 16, the Law amending and supplementing a number of articles of the Intellectual Property Law of Vietnam (hereinafter referred to as “IP Law”) was approved by the National Assembly with 476/477 (about 95.58%) delegates voting for approving it.

The amended IP Law shall take effect from January 01, 2023, except for the provisions on protection of sound trademarks that took effect from January 14, 2022, while the provisions on protection of testing data for agricultural chemical products shall take effect from January 14, 2024. Accordingly, there were 67 articles that have been amended and supplemented, 13 new articles that were supplemented in the IP Law amended in 2022. After amending and supplementing, the IP Law amended in 2022 (hereinafter referred to as “IP Law 2022”) has 18 chapters and 235 articles in total.

The Vietnam IP Law, which has been promulgated since 2005, amended and supplemented in 2009 and 2019 has promoted its role in regulating legal relations for a special type of property – IP rights. However, practical implementation along with Vietnam's extensive international integration in recent years showed that the IP Law still had some problems and inadequacies that needed to be amended and supplemented.

Therefore, the amendment and supplementation of this IP Law is an urgent requirement for Vietnam's socio-economic development, with the goal of creating a strong motivation for research and innovation, ensuring an adequate and effective legal framework for the protection, exploitation and protection of IP rights.

This has also been reflected in the guidelines and lines of the Party and the State's policies on perfecting the socialist-oriented market economy, industrialization and modernization to actively participate in the 4.0 industrial revolution, fast and sustainable developing development based mainly on science and technology, innovation and digital transformation.

This revised IP Law has a fairly wide scope, with nearly 100 articles being amended and supplemented. The Law has received the attention and comments of the National Assembly delegates on a lot of contents, of which the content is related to the assignment of the right to register inventions, industrial designs, integrated circuit design, plant varieties that are the results of science and technology projects or assignments using the State budget receive the most attention.

This content has been revised towards clearer and more detailed regulations, with the granting of the right to register inventions, industrial designs, integrated circuit design, plant varieties which have been created in the State budget’s projects, assignments automatically and actively and without reimbursing for the presiding organization, thereby aiming to encourage the transformation of research results into IP protected assets, creating a premise for commercial exploitation of these resources in the market is more efficient.

There are 07 large policy groups that are considered as most fundamental, important new policies and points in the IP Law 2022, including:

Policy 1: Briginging clear regulations on authors, copyright holders, performers, copyright-related rights holders in cases of transfer, licencing copyright, copyright-related rights, specifically:

- Regulations related to the identification of economic rights holders (owners, authors, performers) are defined more clearly and specifically, helping the process of copyrights transfer and licensing copyrights in transfer and licensing copyrights, copyright-related rights contracts more convenient.

- The highlight of the IP Law 2022 is the provision allowing the transfer of some moral rights under the agreement (agreement for naming and modification of copyrighted works) suitable for the specifics in the field of copyrights in order to solve the copyright matters exist in the past in practice such as when there is a need to change the author's name or modify, upgrade the computer programs, etc.

Policy 2: Encouraging the creation, exploitation and dissemination of inventions, industrial designs, integrated circuit design and plant varieties created from scientific and technological projects or assignments using the State budget

The law has granted the right to register inventions, industrial designs, layout designs and plant varieties as a result of scientific and technological projects or assignments using the state budget to the presiding organization automatically and without reimbursement, and at the same time have a mechanism for reasonable distribution of benefits between the State, the presiding organizations and the authors in accordance with the spirit of Resolution No. 20-NQ/TW of the 6th Conference of 11th Party Central Committee.

This regulation not only overcomes the current inadequacies in the registration and exploitation of intellectual property rights objects invested by the State, but also is a push to encourage subjects to research scientific tasks and technology to actively register and exploit created inventions, industrial designs, integrated circuit design and plant varieties; promote cooperation relationship with enterprises to transfer technology, commercialize and attract a lot of investment capital to develop and research products, thereby reaping many economic benefits as well as achieving social security goals.

Policy 3: Facilitating procedures process for registration copyrights, copyright-related rights, and procedures for establishing industrial property rights:

Accordingly, whether the right is automatically established without registration (in the field of copyrights and copyright-related rights) or must be registered (in the field of industrial property), the regulations related to the procedure, time limit, profile composition etc. continued to be perfected in the direction of compactness, speed, convenience and transparency to encourage and increase registration and establishment of IP rights in order to create a solid basis and evidence in identifying right holders and protected objects, as a premise for the exploitation of rights as well as the enforcement of rights in the future.

Some specific amendments include: creating a legal basis for organizations and individuals to register online for copyrights and copyright-related rights; sorting third-party opinions to speed up the application examination process; simplify the industrial design description; limit security controls to inventions; grant a permission to delay publication of industrial design applications; supplementing a number of specific provisions on handling appeal/complaint procedures in the field of industrial property.

Policy 4: Ensuring an adequate and balanced level of protection in IP rights protection, specifically:

Regulations related to the protection and enforcement of intellectual property rights have been revised and improved to ensure an adequate and balanced level of protection between the rights of the right holder on the one hand and right to use, right to access to knowledge, technology of society. Specifically:

- Supplementing a number of exceptions that are considered as uninfringed copyrights, related copyright rights, the limits of copyrights, related rights in order to harmonize the interests between the copyrights holder and the exploiting and using organizations and individuals and right to access works of the public, ensuring the implementation of international commitments and in accordance with the practical conditions of Vietnam.

- Supplementing a number of regulations to control inventions using genetic resources and traditional knowledge about genetic resources; supplementing basis for terminating, removing the effect protection title (inventions, trademarks); handling conflicts between trademarks and plant variety names, and objects of copyrights, related rights; amending regulations on subjects for geographical indications; clarify the conditions considered as unfair competition between domain names and pre-existing trademarks, trade names or geographical indications.

Policy 5: Strengthening the effectiveness of IP support activities

- The amendments aim to promote support activities for the IP system (including representative and assessment activities), specifically amending and supplementing a number of regulations in a more opening direction to create competition in the IP system, providing representation services (dividing representatives by field of IP objects; loosening the conditions for being granted a representative practice Certificate depending on the field of IP objects); amending regulations on assessment in the direction of clearly defining the scope between IP assessment and judicial assessment on IP; clarifying the evidence-based meaning of IP assessment conclusions;

Policy 6: Improving the effectiveness of IP rights protection activities

- Regulations related to the enforcement of rights have been revised to ensure that the IP rights protection mechanism is more effective, reasonable and feasible, notably an additional provision on the authority to proactively apply measures control at the border if in the course of inspection, supervision and control, the customs authority discovers clear grounds to suspect that imported or exported goods are counterfeit IP goods.

Policy 7: Bringing sufficient and deliberate implementation of Vietnam's international commitments on IP protection in the integration process, specifically:

- Amending and supplementing a number of contents related to technological protection measures to protect rights and rights management information to ensure enforcement in the digital environment; some regulations on exceptions to copyrights and related rights;

- Amending and supplementing a number of contents related to sound trademark protection; terminate the validity of the protection title for trademark; mechanisms to ensure information for patent holders to exercise their rights in the marketing authorization procedures for pharmaceutical products; obligation to protect confidential data in an application for agrochemical license; mechanisms to compensate patent owners for delays in marketing authorization of pharmaceutical products; assumptions about copyrights, related rights; rights and responsibilities of intermediary service providers in the Internet and telecommunications network environment; obligation to proactively suspend customs procedures for imported and exported goods suspected of being counterfeit IP goods.

Deploying a number of activities to promulgate and guide the implementation of the IP Law 2022 in coming time

After the IP Law 2022 was approved by the National Assembly, the Ministry of Science and Technology (MOST) will coordinate with relevant agencies to implement a number of activities to promulgate and guide the implementation of this Law, specifically: propagating and disseminating the Law amending and supplementing a number of articles of the IP Law 2022 through the mass media, seminars and talks to relevant groups of subjects such as management agencies. Central and local governments, research institutes, universities, associations, enterprises...

At the same time, carrying out procedures to draft and submit to competent authorities for issuing documents guiding the implementation of the IP Law 2022 according to the plan, first of which is the amendment of a number of Government Decrees such as Decree No. 103/2006. /ND-CP on industrial property, Decree No. 105/2006/ND-CP on state management and protection of IP rights...

The MOST expects that the IP Law 2022 will bring more positive changes, contributing to creating a strong motivation to promote creative organizations and individuals, investment in research, development, promoting technology transfering, commercializing IP rights objects, thereby attracting more investment capital for the activities of organizations and enterprises in particular and for socio-economic development of Vietnam in general.

(Summarized and translated by Elite Law Firm based on the Vietnamese Article of the MOST at: https://most.gov.vn/vn/tin-tuc/22049/nhung-diem-moi-cua-luat-sua-doi--bo-sung-mot-so-dieu-cua-luat-so-huu-tri-tue.aspx )

Brief of New changes in Vietnam IP Law amended in 2022

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