Vietnam

table of contents

Vietnam overview

General circumstances and economy

① Area: 329,241 square kilometers (approximately 85% of Japan)

②Population: Approximately 9,946 million people (as of 2022)

③ Capital: Hanoi

④Language: Vietnamese

⑤ Religion: Buddhism, Catholicism, Cao Daiism, etc.

⑥Agriculture, forestry and fisheries, mining, construction, and service industries

⑦Major industries: GDP (2022): Approximately 4,138 billion USD

⑧Per capita GDP (2022): Approximately 4,110 USD

⑨Export value (2022): $3,719 billion (10.6% increase compared to the previous year)

 Main export items: Textiles and sewn products, mobile phones and related parts, PCs and electronic equipment and related parts, footwear, machinery and equipment and related parts, etc.

 Main export agricultural products: Shelled cashew nuts, rice (milled rice), coffee (green beans)

 Main export destinations: United States, China, South Korea, Japan, Hong Kong

⑩ Import value (2022): $3,607 billion (8.4% increase compared to the previous year)

 Main imported items: Machinery equipment and parts, PCs and electronic equipment and parts, textiles and sewn products, steel, mobile phones and parts, etc.

 Main import partner countries: China, South Korea, Japan, Taiwan, United States

About the current Vietnam Intellectual Property Law

The Civil Code, which went into effect on July 1996, XNUMX, included provisions regarding industrial property, and the existing laws and regulations were amended to form the Industrial Property Law.

Afterwards, regulations regarding intellectual property rights became independent from the Civil Code and came into force as the Intellectual Property Law on July 2006, 7. From January 1, 2023, the Intellectual Property Act, which was revised on June 1, 1, came into effect.

The main international treaties to which Japan is party are the Paris Convention (effective March 1949.3.8, 1976.7.2), the Treaty Establishing the World Intellectual Property Organization (WIPO Treaty, effective July 1993.3.10, 2007.1.11), and the Patent Cooperation Treaty (PCT, March 2006.7.11). Agreement on Trade-Related Aspects of Intellectual Property Rights (Trips Agreement, effective January 2019.12.30, XNUMX), Madrid Agreement on the International Registration of Marks (Madrid Agreement, effective July XNUMX, XNUMX), International Registration of Industrial Designs The Geneva Amendments to the Hague Agreement (The Hague Agreement entered into force on December XNUMX, XNUMX).

Current situation in Vietnam

Since joining the WTO in January 2007, Japan is expected to develop in the future as one of the VISTA, a group of emerging countries following the BRICs. In addition, wages in China are about one-third of those in China, so it is attracting attention as the next China, and companies from developed countries are starting to move their production bases away from China.

In terms of intellectual property, systems have been put in place in preparation for joining the WTO. It is a signatory to major international treaties related to intellectual property, and can be said to be one of the most proactive countries among ASEAN countries.

In recent years, there are signs that the manufacturing industry that practices innovation is developing, and in 2015, the number of intellectual property-related applications was approximately 5000 for patents, approximately 4 for trademarks, and approximately 2500 for designs. Both are on the rise.

  • [Patent/Utility Model]
    Overall, the number of applications is on the rise. The number of cases increased to 5,033 in 2015 and 8,543 in 2021.
  • 〔design〕
    Overall, the number of applications is on the rise. The number of cases increased to 2,445 in 2015 and 3,783 in 2021.
  • 〔trademark〕
    Overall, the number of applications is on the rise. The number of cases increased to 42,542 in 2015 and 69,834 in 2021.

 

The statistics of the number of applications and registrations from FY2018 to FY2021 are shown in the table below.

Number of applications 2018 2019 2020 2021
Patent All 6,071 7,520 7,695 8,534
(from abroad) 5,425 6,800 6,674 7,468
(from Japan) 1,512 1,719 1,700 1,620
(Including PCT) 4,567 5,861 5,748 6,663
utility model All 557 637 575 466
(from abroad) 187 242 175 129
design All 2,873 3,492 3,499 3,783
(from abroad) 1,179 1,651 1,499 1,754
(from Japan) 309 359 273 212
商標 All 54,438 62,123 63,665 69,834
(from abroad) 16,962 18,471 16,375 16,908
(from Japan) 1,925 1,976 1,553 1,409
Number of registrations 2018 2019 2020 2021
Patent All 2,219 2,620 4,319 3,691
(from abroad) 2,014 2,451 4,180 3,538
(from Japan) 769 967 1,645 1,258
(Including PCT) 1,708 2,143 3,713 3,092
utility model All 355 312 278 250
(from abroad) 65 82 77 63
design All 2,360 2,172 2,293 2,484
(from abroad) 1,083 938 1,183 1,288
(from Japan) 446 329 286 259
商標 All 27,264 38,985 43,011 42,483
(from abroad) 12,773 16,715 17,349 17,107
(from Japan) 1,477 1,988 2,150 1,791

(Source: WIPO IP Statistics)

 

 

Patent system information

From application to patent

procedural language

Proceedings language: Vietnamese (Ministerial Ordinance 7.2b(ii))

Powers of attorney, deeds of assignment, specifications, and priority documents must be translated into Vietnamese.
*In addition to paper applications, electronic applications using the online application system are also accepted.

From application to patent

In order to receive a patent, an invention must not fall under any of the grounds for non-patentability, be new, have inventive progress, and have industrial applicability.

(1) Grounds for non-patentability (Article XNUMX)

The following cannot be patented as inventions:

  • ① Discovery, scientific theory, mathematical method
  • ② Plans, plans, rules or methods, computer programs for carrying out mental activities, training animals, playing games, carrying out business operations;
  • ③ Presentation of information
  • ④ Solutions for aesthetic features only
  • ⑤ Plant varieties, animal varieties
  • ⑥ Processes of an essentially biological nature for the production of plants and animals other than microbiological methods
  • ⑦ Disease prevention, diagnosis and treatment for humans or animals

(2) Novelty (Article XNUMX)

An invention shall be considered new if: (Article 60 (1))

  • ① Has not been publicly disclosed by use, written explanation or any other form of means in Vietnam or abroad before the filing date of the invention registration application or, if applicable, before the priority date.
  • ② It was filed before the filing date of the invention registration application or, if applicable, before the priority date, and there is no other invention registration application published after the filing date or the priority date.

Furthermore, if the invention is known only to those who are bound to keep it confidential, the invention does not lose its novelty. (Article 60 (2))

Exception to loss of novelty

Even if an invention loses its novelty, it will be deemed not to have lost its novelty if it is filed within 12 months from the date it became publicly known in the following cases. (Article 60 (3) (4))

  • ① Disclosure by a person who has the right to obtain a patent
  • ② Disclosure by a person who has obtained the information directly or indirectly from a person who has the right to obtain a patent
  • ③ Disclosures made by the authorities with jurisdiction over industrial property rights in applications and registration certificates that are not lawful.
  • ④ Disclosure of applications by persons who do not have the right to obtain a patent

(3) Inventive step (Article XNUMX)

An invention involves an inventive step if a person skilled in the art could not have easily made the invention based on an invention that has already been made public in Japan or abroad before the filing date (or priority date). .

Furthermore, matters that have become publicly known through the disclosures listed in ① to ④ regarding the exceptions to loss of novelty above are not treated as well-known art when determining inventive step.

(4) Industrial applicability (Article XNUMX)

An invention has industrial applicability if the same product can be mass-produced or the same result can be achieved repeatedly.

(5) Examination procedure

Vietnam patent system
≪Flowchart from application to registration≫

 

① The application will be examined for formality, and if it does not meet the requirements, the applicant will be notified of the plan to reject the application (the response period is within one month). (Ordinance 1(a)).

② In principle, the application will be published 19 months after the filing date (or priority date) (in the case of PCT national phase, the application will be published within 2 months from the date the application is accepted as legal) (Ministerial Ordinance 14.2 ( ⅰ)(ⅱ)).

Furthermore, a third party may file an opposition to the granting of a patent to a published application within nine months from the date of publication of the application. Objections must be made in writing, and the third party must submit relevant documents and information in support of its arguments.

Apart from the opposition mentioned above, at any time between the date of publication of the application and the date of grant of the patent, third parties may submit written opinions regarding the patentability of the invention described in the published application.

③ Since a request for examination system is adopted, the applicant must file a request for examination within 42 months from the filing date or priority date. (Ministerial Ordinance 25.1(ii)). A request for review can also be filed by a third party.
 Additionally, the deadline for filing a request for examination is extended to 6 days only if the applicant encounters a verifiable force majeure event (such as a natural disaster) or an objective obstacle exists (such as illness, business travel, remote research, etc.). An extension of one month is permitted (Ministerial Ordinance 25.1(ii)). However, it should be noted that the above extension may not be granted due to unclear criteria for force majeure situations and objective obstacles.

④ If the examiner examines the application and determines that it does not meet the patentability requirements, the examiner will specify a deadline for response and notify the reasons for refusal. In response to this notice of reasons for refusal, the applicant can submit a written opinion, amendments to the specification, etc. within three months. (Ministerial Ordinance 15.7(i)(ii)).
 Additionally, if any deficiencies are found in bibliographic items during the formalities examination, an amendment order will be notified. The deadline for responding to the above amendment order is two months (Ministerial Ordinance 13.6 a).
 The applicant may request an extension of the above period in accordance with the provisions of Rule 9.2 of the Ministerial Ordinance. Specifically, the deadline for responding to an order regarding bibliographic matters can be extended by two months, and the deadline for responding to a notice of reasons for refusal can be extended by three months.
 The applicant may also file a request for appeal against the examiner's examination results.

⑤ If it is determined that the patent requirements are met as a result of the examination, a decision will be made that a patent should be granted. If the necessary fee (patent fee) is paid for this decision, the patent will be registered in the registry. A patent certificate is then issued to the patentee. The term of protection is 20 years from the filing date (however, rights accrue from the registration date).
 The deadline for payment of the above patent fee is three months from the date of issuance of the notification of decision to grant the patent.

⑥ It is not permitted to amend or expand the scope of protection (quantity) beyond what is stated in the specification of the application, or change the essence of the subject matter described in the application. (Ministerial Ordinance 17.1(c))

⑦ It is permissible to convert a patent application to a utility model application (17.3(a)).

⑧ Divisional applications are possible while the application is under examination.

⑨ Regarding submission of information on corresponding foreign applications

 

Applicants may submit information regarding corresponding foreign applications to the Vietnam National Industrial Property Office. It is possible to expedite the examination by submitting the examination results of the corresponding foreign application. The documents to be submitted are as follows.

  •  a) Copy of the search results and examination results issued for the corresponding foreign application
  •  b) Allowed specification of corresponding foreign application (copy of patent gazette or registered gazette)
  •  c) A copy of the document issued by the corresponding foreign patent office regarding the technical content of the invention;

PCT application national phase entry procedure

It is necessary to submit a translation of the specification etc. at the time of international application within 31 months from the priority date. (Ministerial Ordinance 27.4a)

Additionally, in the revised Patent Law implemented on January 15, 2018, the previous system for extending the deadline for submitting translations was abolished.

In addition, in the case of the PCT route, a deed of assignment and a priority document are not required.

Paris priority

When claiming priority under the Paris Convention, the deadline for submitting a translation is within 12 months from the priority date.

Duration of patent right

(i) 20 years from the filing date (in the case of Vietnam filings via PCT filing, the international filing date);

  → Rights arise from the date of registration. There is no extension of the term of existence.

(ii) Annuity: The first annuity is payable at the time of grant of the patent and thereafter annually before the date corresponding to the date of grant of the patent.

Regarding promotion of examination

Vietnamese examiners recognize the examination results of some overseas patent offices, such as the JPO, USPTO, EPO, and AU Patent Office. Therefore, if a patent has been granted registration at the JPO, by filing an application with the Vietnam Patent Office without changing the claims filed with the JPO, you can obtain a patent within 5 to 6 months from the date of application. will be granted.

Additionally, if you file a request for examination with your application, you can speed up the examination by requesting early publication. (However, excluding the case of PCT domestic phase entry)

Furthermore, the Patent Prosecution Highway (PPH) pilot program was started on April 1, 2016 between the Japan Patent Office and the Vietnam Patent Office.
但し、ベトナム特許庁への日本国特許に基づくPPH申請は、1年当たりの上限が200件である。詳細には、4月1日~9月30日までの期間の上限が100件に設定され、10月1日~3月31日までに期間の上限は、年間件数が200件に達するまでの件数に設定される。
Currently (as of December 2020), the acceptance of PPH applications based on Japanese patents to the Vietnam Patent Office has been suspended, but acceptance of the above PPH applications is scheduled to resume from April 1, 2021.

Existence of secret patent system

In Vietnam, inventions that are not suitable for disclosure (inventions of national interest or inventions related to national defense and national security) can be protected as secret patents. In this case, there are restrictions on foreign applications.

 

Utility model (Utility Solution) system information

There is no independent law regarding utility models, and they are stipulated in the Intellectual Property Law (Law on Industrial Property) along with patents, etc.The subject of protection is the same as patents (unlike Japan's Utility Model Law, it is limited to goods, etc.) (methods are also subject to protection).The provisions for patent applications also apply to utility model applications.

Therefore, utility models are also subject to substantive examination in addition to formality examination. Therefore, the utility model technology evaluation system under Japanese law does not exist. The examination period is also the same as for patents.

Differences between patents and utility models

(1) Registration requirements

In the case of a patent, the requirements of novelty, inventive step, and industrial applicability are required, whereas in the case of a utility model, only the requirements of novelty and industrial applicability are required, and the requirement of inventive step is not. Not required.

Note that it is possible to change the application from a patent to a utility model. Therefore, even if a patent is not granted due to lack of inventive step, a utility model application can be filed.

(2) Deadline for requesting review

Within 36 months from the filing date (or priority date).

(For patents, within 42 months from the filing date (or priority date).)

(3) Term of existence

10 years from the filing date

(In the case of patents, 20 years from the filing date)

 

Trademark system information

Adoption of international classification

Adopting multiple classifications in one application (Article 101(4))

Joined the Madrid Protocol on July 2006, 7

Documents and information required at the time of application

(1) Application form

The information to be included in the application form is as follows:

  • Applicant's name, address, and representative name
  • Designated goods/services and their classification (must be clearly stated in Vietnamese)
  • In addition to trademarks, service marks are also protected by the trademark system.

(2) Trademark sample

If the applied trademark is a foreign language word or phrase, it must be translated or transliterated into Vietnamese.

It is also possible to apply for a trademark consisting of Japanese, but in this case, it is necessary to add the English pronunciation and transliteration to the Japanese language as part of the trademark.

Therefore, although the trademark applied in Vietnam is different from the trademark applied in Japan, priority claims based on the Japanese application are allowed.

The examination will be based on the English language used, so when applying to Vietnam, it is necessary to confirm in advance that the English language used is appropriate.

In the case of sound trademarks, a representation in audio file format or graphic format must be submitted.

(3) Power of attorney

No notarization/certification required

Flow of application examination

If there are no flaws in the format, the application content will be published within two months from the date of application acceptance.

With the enforcement of the revised law on January 2023, 1, any person can now file an opposition within five months from the publication date of the application. Apart from filing an opposition, information provision procedures are also possible from the publication date of the application until the date of the decision to register.

The period for substantive examination is nine months from the date of publication of the application. Therefore, the average period required to obtain trademark rights is approximately 12 months or less.

If the examiner notifies the applicant of reasons for refusal, the applicant can submit a written opinion/written amendment. The deadline for claiming priority in an application is within six months from the priority date.

Vietnam trademark system
≪Flowchart from application to registration≫

Duration

10 years from the date of trademark registration application (rights accrue from the registration date)

Renewal of trademark right term

Can be renewed every 10 years.

Renewal procedures must be carried out at least six months before the expiration date of the term.

→ There is a grace period of 6 months after expiration.

At the time of renewal procedures, it is necessary to submit the original copy of the trademark registration certificate.

Obligation to use the mark

There is no obligation to use the mark at the time of filing, but there is an obligation to use the mark after registration (Article 136 (2)). In other words, if a mark is not used by the owner of the mark or his/her right to use the mark for five consecutive years or more without justifiable reasons, the ownership of the mark ceases to be effective.

Adopts electrical outlet system

Although there is no provision under the Trademark Law, the consent system is adopted in practice. A written consent may be submitted at the hearing of an objection, etc. However, the decision to accept consent is left to the discretion of the examiner in charge.

 

Design system information

Protection target

(1) Definition: The appearance of a product or an assembled part of a composite product expressed by shape, line, size, color, or a combination thereof, and the appearance that appears when the product or composite product is used.

Registration requirements

① Not falling under any of the reasons for non-registration
  ・Appearance of the article based only on the function of the article
  ・Exterior appearance of public or industrial buildings
  ・Things that cannot be seen while using the product

② Being new (adopting globalism)
  However, designs that fall under the following conditions will not be deemed to lack novelty, provided that the application is filed within six months from the date of publication or exhibition:
  ・If it is published by another person without the permission of the creator or assignee
  ・When published in the form of an academic presentation by the creator or assignee
  ・When exhibited by the creator or assignee at a Vietnam national exhibition or an official or authorized international exhibition

③ Be creative

④ It has industrial applicability

(XNUMX) Others

*One application for one design (with the exception of industrial designs involving assemblies and deformations)

Documents and information required at the time of application

*Procedural language: Vietnamese

(Vietnamese translation of priority document is not required for designs only.)

(1) Application form 

The information to be written in the application includes the name of the applicant, name of the creator, whether priority is claimed, name of the product, etc.

(2) Design description (claim) *Required

Differences from publicly known designs must be clearly indicated

Features that express the content of the design must be clearly indicated (e.g., if the article is entirely or partially transparent, state that fact)

If the design consists of deformations, these deformations must be clearly indicated.

If the design relates to a set, the characteristics of each product that makes up the set must be clearly indicated.

(3) Photographs or drawings of the design and specifications included in the photographs or drawings

6 side view and perspective view

Submit 5 copies

It is not permitted to submit samples or models in place of drawings, etc.

The description must include the following items in order:
・Each photo and drawing
・Characteristics of design shapes and patterns

(4) Power of attorney

General power of attorney system available

Flow of application examination

After the formality examination, a substantive examination will be conducted (no request for examination is required). The application will be published within two months from the date it is accepted as legally valid. Furthermore, it will be made public after the substantive examination.

*With the enforcement of the revised Design Law on January 2023, 1, it is now possible to extend the publication of an application for up to 1 months from the filing date by filing a petition from the applicant at the time of filing.

With the enforcement of the revised law on January 2023, 1, any person can now file an opposition within five months from the publication date of the application. Apart from filing an opposition, information provision procedures are also possible from the publication date of the application until the date of the decision to register.

If the examiner notifies the applicant of reasons for refusal, the applicant can submit a written opinion/written amendment.

Vietnam design system
≪Flowchart from application to registration≫

Duration

5 years from the filing date

(Can be renewed twice/up to 15 years)

Scope of rights

A design right holder has exclusive rights to registered designs and similar designs.

Establishment of usage rights requires registration with the Vietnam Patent Office (requirement against third parties). However, it is valid between the parties even if it is not registered.

 

Measures against counterfeit products

Occurrence of counterfeit and pirated products

We are facing a serious problem of counterfeit products.

The number and scope of infringing products is increasing, and methods of infringement are becoming more sophisticated, including due to advances in printing technology. As for the source, a considerable number of counterfeit and pirated products are smuggled, and the most active smuggling activity has been reported on the northern border with China.

(I.e.

(1) Administrative disposition

When the ultimate goal is to stop the distribution of infringing goods, administrative measures are often the most effective.

in particular:

  • caveat
  • Fine (up to 500,000,000 VND = approximately 180 million yen)
  • Confiscation of counterfeit products and manufacturing equipment
  • Forced correction of false information
  • Forced removal of infringing elements

(2) Civil litigation

Because it lacks speed, it is primarily considered a means of claiming damages (the method of resolving issues of infringing products through litigation has not yet become established).

In Vietnam, there are only a small number of precedents related to intellectual property, and these precedents are not sufficiently publicized, making it difficult to understand trends in court decisions.

(3) Border control

Rights holders can request customs authorities to monitor and detain customs clearance of goods imported and exported across Vietnam's borders. However, in order to alleviate customs concerns in the event that the infringement claim is false, the rights holder must collect and submit preliminary evidence showing that the suspected infringing item infringes intellectual property rights, and support the claim. If a mistake is made, the company must accept responsibility for paying compensation.

(4) Criminal measures

Criminal proceedings will be carried out if the infringement has had a serious impact on society or if there is a repeat offense.

A right holder's claim is not a necessary condition for criminal proceedings. However, the right holder may submit a complaint to the competent authority with prima facie evidence of infringement. The competent authorities will investigate and verify this evidence as preliminary evidence.

Even if a right holder is subject to criminal penalties, the right holder can claim compensation for damages (...the claim must be filed in civil court).

It is important that rights holders take the lead in cooperating closely with the competent authorities and taking enforcement measures against infringers.

Issues to be solved for the future

Judiciary system is underdeveloped

Distrust in the transparency and fairness of administrative procedures (corruption is a serious problem)

Insufficient intellectual property education for citizens

≪ Solution ≫

  • Building a legal system
  • Ensuring transparency of procedures
  • Ensuring freedom of expression
  • Public awareness activities

Improving market credibility and attracting investment from foreign companies

 

 

Materials about Vietnam

Vietnam Patent Office

http://www.noip.gov.vn/

Intellectual Property Law/Cabinet Order on Industrial Property Rights/Cabinet Order on Rights Protection and Intellectual Property Management/Cabinet Order on Administrative Penalties for Industrial Property Rights/Ministerial Ordinance on Industrial Property Rights/Japanese translation of Vietnam Intellectual Property Law can be found on the Japan Patent Office website. You can download it from the URL below.

https://www.jpo.go.jp/system/laws/gaikoku/mokuji.html

The "Counterfeiting Countermeasures Manual - Vietnam Edition" created by JETRO (Japan External Trade Organization) can be downloaded from the URL below.

https://www.jetro.go.jp/theme/ip/manual.html

 

update information

*Vietnamese intellectual property system overview (updated 2022/12/12)

1. Participation in major treaties
→We are a member of the Geneva Amendment to the Hague Agreement Concerning the International Registration of Industrial Designs.

2. When applying in Vietnam, it is necessary to appoint a registered local agent.

3. Compared to Japan, there are many similarities in the handling of the four main laws.
→There is a unified legal code called "Intellectual Property Law" that covers copyrights, trade names, trade secrets, etc.

  • ① The fee reduction/exemption system is not adopted in all four laws.
    →In Japan, it exists outside of the Design Law (however, under the Trademark Law, there is a split payment system)
  • ② Substantive examination and application publication are conducted under all four laws.
    →・In Japan, substantive examination is not conducted under the Utility Model Law (Article 14, Paragraph 2 of the same law)
     ・In Japan, application publication is limited to the Patent Act (Article 64 of the Act) and the Trademark Act (Article 12-2 of the Act)
  • ③ The starting date of the term of existence is the filing date under all four laws.
    →In Japan, only the Trademark Law is established from the date of registration (Article 19 of the same law)
  • ④ All four laws have an objection system
    →In Japan, currently only the Patent Act (Article 43 of the Act) and the Trademark Act (Article 2-XNUMX of the Act)

4. Administrative measures are commonly used as a remedy for infringements such as measures against counterfeit products.

About the National Office of Intellectual Property (NOIP)

  • 1. Organization
    ・Since 2010, it has become an independent administrative institution.
     →Financially independent: Part of the examination fee can be used by NOIP with permission from the government
  • 2. Examiners…average 70-80 people
    ・3 locations in Vietnam
     →Headquarters (Hanoi): Examination
      Branch (Ho Chi Minh/Da Nang): Only accepting applications
    ・Patent Strategy Department
     →Part 1: Mechanical/electronic/electrical systems
      Part 2: Chemical/Industrial/Pharmaceuticals
      Part 3: Food system
    ・Design Department
    ・Trademark Department
     →Parts 1 and 2: Domestic applications
      Part 3: International and Geographical Trademarks
    ・Copyright (including software)
     →In principle, under the jurisdiction of the Ministry of Culture, Sports, and Tourism

 

Problems in examining applications from Japan

1. The importance of improving Vietnamese translation accuracy

・When judging, we look at the English text first.

   ↓

・If there is a big discrepancy between English and Vietnamese, please contact a Vietnamese representative.
You may be asked to correct your Vietnamese.

 →If the discrepancy is severe, it may be canceled.

2. Priority claim and request for examination

・Despite filing an application claiming priority in Japan by designating Vietnam,
There are cases in which a request for examination is not filed in Japan.

 

 

 

Patent attorney specialist  Yoshiyuki Sumi

 


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