Vietnam’s National Assembly ratified EVFTA - important provisions for intellectual property rights

Vietnam’s National Assembly on June 8 2020 ratified the European Union Vietnam Free Trade Agreement (EVFTA) and the EU-Vietnam Investment Protection Agreement (EVIPA). It is planned to take effect in July or August 2020. The agreement was unanimously approved with 94.62 % of lawmakers in favor of the EVFTA, and 95.65 % in favor of the EVIPA.

The EVFTA was signed on June 30 in Hanoi paving the way for increased trade with the EU and Vietnam. Analysts hope the trade deal will give a much-needed boost to Vietnam’s industries, such as manufacturing, as it looks to recover from the COVID-19 pandemic.
The Resolution allows all inclusions of EVFTA to take effect. This includes applying EVFTA’s regulations specified in Appendix 3 to this Resolution till the entry into force of the Law on Intellectual Property No. 50/2005/QH11 amended and supplemented according to the Law No. 36/2009/QH12, and the amended Law No. 42/2019/QH14.

Copyright

Vietnam will accede to the following international treaties within three years from the date of entry into force of the EVFTA:
(a) the WIPO Copyright Treaty, adopted in Geneva on 20 December 1996
(b) the WIPO Performances and Phonograms Treaty, adopted in Geneva on 20 December 1996.

Both treaties are known together as the "Internet Treaties," which establish norms preventing unauthorized access to and the use of creative works on the internet or other digital networks. Currently, Vietnam is finalizing the documents in preparation for joining the said treaties.

Trademark

The parties will apply the WIPO recommendation on the protection of well-known trademarks. This takes into consideration additional parameters that are not restricted exclusively to the mark's degree of prominence among relevant consumers in a single country.

In addition, the parties agreed to clarify grounds for revocation. Any use of a trademark by a trademark owner, or with the owner's consent, for the goods or services that the trademark has registered, which may mislead the public, especially in terms of nature, quality or geographical origin of the goods or services, will make the mark invalidated or prohibited by the relevant national law.

Designs

The parties are bound to provide for the protection of independently created industrial designs that are new and original.

Accordingly, the EVFTA sets up a protection mechanism for both the appearance of the product as a whole, as well as the appearance of its separable or inseparable parts. The appearance of the product includes the shapes and colors or the combination of these elements that are visible during usage.

Patents

Patent (pharmaceutical product) owners can enjoy an extension of patent protection in case of delays in marketing authorization procedures.
Each party should provide for an adequate and effective mechanism to compensate the patent owner for the reduction in the effective patent life resulting from unreasonable delays in the granting of the first marketing authorization. Such compensation may be in the form of an extension of the duration of the rights conferred by patent protection but should not be over 2 years.

In particular, unreasonable delays include at least more than 2 years from the date of filing that the competent authority, without a plausible reason, has not had a first response to the application for the circulation of products. The period of delay is counted from the first day after the end of 24 months from the date of filing the application for the circulation of pharmaceuticals until the competent agency gives its first response.

When maintaining the validity of an invention patent, the owner of the patent shall not be required to pay the fee for the use of a protection title for the period of time that the procedure for registration for circulation for the first time in Vietnam with pharmaceuticals produced under that patent are delayed. In order to not to pay this fee, within 12 months from the date the pharmaceutical product is granted circulation, the patent owner must submit to the state management agency in charge of industrial property rights a written certification regarding the delayed registration process of the agency competent to carry out the procedures for registration of that pharmaceutical circulation.
If the patent owner has paid the usage fee for the period considered to be delayed, the paid amount shall be deducted from the subsequent valid maintenance period or refunded.

However, delays occurring during the marketing authorization of the product by the applicant, which is not under the control of the competent authority, shall not be used to determine delays under this obligation.

Summarized and translated from:
Lexology
Vietnam Briefing
Nghị quyết 102/2020/QH14 phê chuẩn Hiệp định Thương mại tự do giữa Việt Nam và Liên minh Châu Âu