Vietnam - Protecting Intellectual Property Vietnam Protecting Intellectual ...
Several general principles are important for effective management of intellectual property rights (IPR) in Vietnam. First, it is important to have an overall strategy to protect your IPR. Second, IPR protection in Vietnam may be different from in the United States. Third, rights must be registered and enforced in Vietnam, under Vietnamese laws. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. Consequently, a U.S. trademark or patent registration will not be effective in Vietnam.
Being a member of the World Trade Organization and World Intellectual Property Organization, Vietnam’s IP legislation covers most aspects of protection of IP in accordance with the international standards required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). However, Vietnam’s IP enforcement mechanisms still need improvement, and awareness of the importance of IPR protection among Vietnamese consumers needs to be raised. Vietnam has been listed on the Watch List in the United States Trade Representative’s Special 301 Report for over a decade, and it remains on the Watch List in 2018. Nin Heip Market in Hanoi and Tan Binh Market in Ho Chi Minh City are also listed in the USTR's 2017 Notorious Markets report (released in January 2018).
The National Office of Intellectual Property (NOIP) oversees the IP registration, where the IPR owners can file applications for trademarks, patents, designs, layout-design of integrated circuits, and geographical indications registration. The granting of patents and registering of trademarks are based on a first-to-file basis. Companies should consider how to obtain patent and trademark protection before introducing their products or services to the Vietnam market.
Vietnam is a party to the Patent Cooperation Treaty (PCT) and the Madrid Agreement Concerning the International Registration of Marks (known as the Madrid System). Patent and trademark applicants may use these international systems for filing international patent and trademark applications for requesting protection in Vietnam. The country is also a member of the International Convention for the Protection of New Varieties of Plants (UPOV). The applicants may apply for protection of new varieties of plants at the Ministry of Agriculture and Rural Development.
The Copyright Office of Vietnam (COV) administers copyright protection law. Although copyrights can be protected in Vietnam without any registration requirement, formal recordation of copyrights at the COV is recommended as it would be useful as evidence of ownership in the event of a dispute. A copyright notice should also be affixed to the copyrighted work. Trade secrets, such as data, formulas or other confidential information used in business, may be protected in Vietnam, if the owner provides appropriate measures to maintain the secrets.
It is the responsibility of the IPR holders to register, protect, and enforce their rights where relevant, and retain their own legal counsel and advisors. Companies may wish to seek advice from local attorneys or IP consultants who are experts in Vietnam IP laws. It is always advisable to conduct due diligence on potential local partners, and work with legal counsel familiar with Vietnam laws to create a solid contract that includes non-compete clauses, and confidentiality/non-disclosure provisions.
It is also recommended that small and medium-sized companies understand the importance of working together with trade associations and organizations to support efforts to protect IP and stop counterfeiting. There are a number of these organizations, both Vietnam and U.S.-based, including:
- The U.S. Chamber and local American Chambers of Commerce
- National Association of Manufacturers (NAM)
- International Intellectual Property Alliance (IIPA)
- International Trademark Association (INTA)
- The Coalition Against Counterfeiting and Piracy
- International Anti-Counterfeiting Coalition (IACC)
- Pharmaceutical Research and Manufacturers of America (PhRMA)
- Biotechnology Industry Organization (BIO)
For more information you may contact;
Regional IP Attaché for Southeast Asia
Ms. Kitisri Sukhapinda
U.S. Embassy Bangkok
U.S. Commercial Service
Room 302, GPF Witthayu Tower A,
93/1 Wireless Road
Bangkok, 10330, Thailand
+66 2-205-5913
IPR Climate in Vietnam
Vietnam is a member of the World Intellectual Property Organization (WIPO) and is a signatory to the Paris Convention for the Protection of Industrial Property. It has acceded to the Patent Cooperation Treaty and the Madrid Agreement Concerning the International Registration of Marks, and in 2004 joined the Berne Convention. In 2007, Vietnam joined the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. While significant progress on the legal regime for protecting IPR has taken place in recent years, enforcement of IPR remains inadequate at the street and market level, at least regarding trademark violations. A wide variety of consumer products bearing false or misleading labels are also readily available in the markets, as are counterfeit labels themselves. In recent years, on-line sales of counterfeit goods and illegal movie streaming have been rampant. Enforcement of on-line IP infringement has been of serious concern.
There are several enforcement agencies involved in and vested with authority to address IPR infringement issues. These include the Ministry of Science and Technology Inspectorate, the Ministry of Culture, Sports and Tourism Inspectorate, the Ministry of Industry and Trade’s Market Management Bureau, the Ministry of Public Security’s Economic Police, the Ministry of Finance Customs Office and the People’s Court (Civil Court). Thus, there are no clear-cut lines of responsibility among these agencies. Generally, sending warning letters to ‘infringers’ or bringing civil actions to the courts has not been very effective. Warning letters that are not accompanied by a decision of infringement from the National Office of Intellectual Property (NOIP) are often ignored and court actions are lengthy and relatively costly. Administrative enforcement has been the most effective approach and is recommended as the first step for dealing with infringement cases in Vietnamse authorities to enforce IPR regulations at the street level, have reported some success. Several U.S consumer goods manufacturers audit black market and pirated product in the marketplace and attempt to counter it with consumer education and marketing.