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1. Law Effectiveness

Regarding the effect of the Law, Law amending the Intellectual Property Law 2022 will take effect from 1st January, 2023.  However, separately, the regulations on sound trademarks will take effect from 14th January, 2022, and regulations on the protection of test data for agricultural chemicals will take effect from 14th January, 2024.

2. New updates and supplementation on the Law on Intellectual Property.

Regarding updated contents, the Law Amending the Law on Intellectual Property in 2022 is adjusted and supplemented with the following provisions:

2.1 New concepts added and adjusted in Articles 4 and 12, 36 of the Law on Intellectual Property:

• First of all, it can be seen that the Law on Intellectual Property revised and supplemented in 2022 has eliminated the concept of “Affiliated trademark”, in order to support applicants in having many trademarks essential to registration in simplifying administrative procedures for trademark registration and being more convenience.
• Next, the general concept of “Royalties” (meaning “Tiền bản quyền” in Vietnamese) is replacing for the previous concepts “Royalties” (meaning in Vietnamese “Nhuận bút“), “Remunerations”, and “Material benefits” to be suitable for international practice and customs.
• Finally, some concepts have been amended, supplemented and clarified to promote the internalization of international treaties to which Vietnam is a member such as EVFTA, TRIPS, CTPPP, etc. in terms of “derivative works”, “Authors”, “Co-authors”, “Copyright Owners”, “Technological measures to protect rights”; “Rights of management information”; “Industrial Designs”; “Famous Trademark”; and “Homonymous geographical indications”.

2.2 New updates on copyright and related rights

• Modifying and clarifying the scope of property rights in terms of performance rights; copyrights; the distribution rights or import right for distribution to the public; the right to convey, including making the work available to the public in a manner accessible to the public at a place and time of their own choosing; lease rights of the author, right owner or other third party authorized by the author or owner to use and exploit in Article 20.
• Amending, supplementing and clarifying the contents of the provisions on Copyright for cinematographic works and theatrical works in Article 21; Copyright for computer programs, data collection and negotiable provisions for the right to upgrade, repair, and upgrade computer programs in Article 22; Rights of performers in Article 29, Rights of producers of phonograms and video recordings in Article 30; Rights of broadcasting organizations in Article 31.
• Amendment of regulations on use cases of published works without permission of copyright holders and without paying royalties in Article 25; in case of using the published works, which do not require any permission from the copyright owner, but must pay royalties in Article 26.
• Adjusting and restructuring the content of regulations related to acts of copyright infringement in Article 28; in the cases of using the related rights without the requirement of obtaining the permission of the related right holder and without payment of royalties in Article 32, in the cases of using the related right object does not require the permission of the related right holder but must pay royalties in Article 33; Acts of infringing related rights in Article 35
• Add new regulations related to copyright protection registration procedures in Articles 40, 52 and 55 of the Law on Intellectual Property.

2.3 New updates on the industrial property rights

With respect to the group of industrial property rights, the corresponding objects in the previous Law on Intellectual Property were also adjusted accordingly, such as:

a. Patents: the novelty concept is adjusted in relation to cases where the patents can be disclosed in an application with an earlier filing date or priority.

b. Sound trademarks: the concept of a sound trademark is added in Clause 1, Article 72 of the Law on Intellectual Property amended in 2022 to internalize the provisions of national law suitable for international treaties such as CPTPP. In particular, “aural sign displayed in graphic form” is considered a new sign of a protected mark according to the provisions of Vietnamese law.

c. Common trademarks: the distinctive signs of a mark in Article 74 of the Intellectual Property Law are also adjusted accordingly.

d. Well-known trademark: adjusted towards the selection from some or all of the criteria specified in Article 75 of the Intellectual Property Law to consider and recognize a trademark as a well-known trademark case by case.

e. Geographical Indications: The concept of “Homonymous Geographical Indications” has been added to clarify the possibility of protection if the actual use of such geographical indications does not mislead consumers as to the geographical origin of the product bearing geographical indications.

f. Objects that are patents, industrial designs and layout designs that are the result of scientific and technological tasks using the Government’s budget, in Article 133 (a) are added in the direction of granting registration rights to the chairing organization automatically and without compensation. At the same time, a mechanism for reasonable distribution of benefits between the State, the lead agency and the author in accordance with the spirit of Resolution No. 20-NQ/TW of the Government. The 6th Conference of the 11th Party Central Committee is also issued accordingly.

g. In addition, regulations on the order and procedures related to invalidation of protection titles, revocation of protection titles, registration of industrial designs and geographical indications, refusal to grant protection titles, and complaints related to industrial property rights procedures are also adjusted appropriately and facilitated the implementation of administrative procedures.

2.4 New updates on regulations related to the implementation of the Law on Intellectual Property.

a. The right to self-protection in Article 198 of the Law on Intellectual Property supplementing contents related to technology and information management measures to ensure enforcement in the digital environment, in line with international commitments.

b. The administrative and criminal rights protection measures are adjusted and supplemented as follows:

• • The concept of counterfeit goods in Article 213 is separate from the concept of counterfeit trademark goods and geographical indication goods. In addition, the new regulation also replaces the phrase ” copyright or related rights holder” for the phrase “owner of the copyright or related rights” in Clause 3 to facilitate the enforcement of copyright protection, related rights and agree on understanding when applying the regulations in practice
  • Administrative measures in Article 214: Clear provisions in case of imposing administrative measures and supplementing corresponding regulations to apply the Law on Handling Administrative Violations of Vietnam and other relevant documents for guiding it.
  • Criminal measures in Article 212: Adding criminal liability for commercial organizations if there is an act of infringing upon intellectual property rights and there are sufficient elements to constitute a crime.

c. Measures to control import and export goods related to intellectual property in Article 216: In addition to the request of the right holder, the Law on Intellectual Property also adds the option of actively suspending customs procedures if in the course of checking, Customs authorities discover clear grounds to suspect that imported or exported goods are counterfeit intellectual property goods. This measure is supplemented to improve the effectiveness of IPR protection activities.

In summary, it can be seen that the Law on Amending the Intellectual Property Law in 2022 has updated and adjusted a lot of new regulations to match Vietnam’s commitments to international treaties to which Vietnam is a member and support the integration process and applying new regulations and international practices in Vietnam. Therefore, relevant rights holders, organizations and individuals should pay attention to promptly adjust their business plans for best protection of their intellectual property rights and avoid infringements upon the rights of other holders when running their business and implementing commercial activities.