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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 |