Vietnam’s National Assembly ratified the Amended Intellectual Property Law (“Amended IP Law") on 16 June 2022. As the most significant set of amendments (compared to those of 2009 and 2019) since the IP Law was promulgated in 2005, the Amended IP Law features updates to over 100 articles. The Amended IP Law will take effect on 1 January 2023 ("Effective Date") save for some provisions (e.g., provision on sound marks protection takes effect on 14 January 2023; provisions on protection of test data for agricultural chemicals take effect on 14 January 2024).
Notable amendments include the following:
- Provisions relating to copyright and related rights provide for, among others, the following:
- more specific requirements to determine right holders (e.g., authors, co-authors) aiming to facilitate the change of copyright ownership;
- the transfer of some moral rights by agreement – namely the right to change the work’s title;
- updates to several exceptions and limitations to copyright and related rights to balance the rights of copyright holders with the interest of organizations and individuals in exploiting and using copyrighted works as well as the public use;
- presumption of copyright/related right ownership in civil, administrative and criminal proceedings for individuals and organizations named after a copyrighted work (if there is no evidence to the contrary);
- intermediary service providers’ liability for copyright and related rights’ online infringements, with safe habour for cases of mere conduit, caching, and hosting; and
- additional obligations for collective management organisations, including, among others, submission of royalty rates and royalty payment methods to the Minister of Culture, Sports and Tourism for approval.
- In relation to trademarks, the Amended IP Law now provides the following:
- sound marks are protected for the very first time as a result of Vietnam’s accession to CPTPP; and
- bad faith officially serves as grounds to oppose and cancel trademarks.
- Administrative procedures for copyright registration and industrial property rights establishment have been simplified and improved. Below are some examples:
- online registration of copyright and related rights;
- setting hard deadlines for opposition proceedings for each IP right to speed up the application examination process;
- less requirements for industrial design descriptions;
- more provisions on complaint settlement procedures in the field of industrial property.
- The Amended IP Law allows for delay of publication of industrial design applications and limits security controls on patents.
- IP enforcement provisions provides for:
- administrative sanctions as one of the measures to handle IP infringements, contrary to a publicly disclosed previous draft, which had been met with comments from stakeholders on the need for administrative sanctions from practical perspective; and
- customs to proactively apply measures control at the border if, in the course of inspection, supervision and control, there are solid grounds to suspect that imported/exported goods are counterfeits.
Ahead of the Effective Date, the Ministry of Science and Technology, along with relevant agencies, will draft and submit to competent authorities guiding documents to implement the Amended IP Law. Specifically, updates are expected to be made to Decree No. 103/2006/ND-CP on industrial property, Decree No. 105/2006/ND-CP on state management and protection of IP rights, etc. We will offer more detailed comments discussing how the Amended IP Law can potentially impact you and your business soon in a follow up publication.
