No Ordinance Number: Protection Of Industrial Property Rights

Original Language Title: Pháp lệnh Không số: Bảo hộ quyền sở hữu công nghiệp

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ORDINANCE on the PROTECTION of INDUSTRIAL PROPERTY in order to protect the legitimate rights and interests of organizations and individuals active in industrial property, encourage creative activity and the effective application of the scientific-technical achievements into practice, promoting the economic development of the country's socio- contributing to the expansion of economic relations, science-techniques with foreign countries;
Pursuant to article 72 and article 100 of the Constitution of the Socialist Republic of Vietnam;
This Ordinance regulates the protection of industrial property rights in Vietnam.
Chapter I GENERAL PROVISIONS article 1 recognition and protection of industrial property rights.
1-State recognition and protection of the industrial property rights of the Organization of the State, collective and private-has legal personality (hereafter referred to as the Organization) and individuals including ownership with respect to inventions, utility solutions, industrial designs, trademarks and rights of use for the designation of origin of the goods.
State protection of the rights of authors of inventions, utility solutions, industrial design.
2-State concerns and encourage the creation, widely applied inventions, utility solutions, industrial design.
Article 2 principles of equality in protection of industrial property rights.
The State of implementation of the principle of equality in protection of industrial property rights, irrespective of the economic component.
Article 3 protection of the industrial property rights of organizations, foreign individuals.
Industrial property rights of organizations, foreign individuals are also protected under this Ordinance in accordance with the international treaties to which Vietnam participates in or under the principle of reciprocity.
Article 4 the objects of industrial property protection by the State.
1-the invention is a new technical solution compared to the level of world engineering, innovative, able to apply in the socio-economic field.
2-useful solution is a new technical solution compared with the technical level in Vietnam, is likely true in economic terms, the current technique.
3-an industrial design is the appearance of the product is shown by contours, shapes, colors, or a combination of these factors that are new to the world and to use as a template to create an industrial product or handicraft.
4-trademarks are used to distinguish the goods or services of the same type of production facility, various business. Trademarks can be words, images or a combination of these elements that are expressed in one or more colors.
5-name disposal of goods is the country's geographical names, local refers to the origin of the item from the water, with the condition that local this item has properties, quality characteristics based on unique geographic conditions and advantages, including natural, human factors or a combination of both factors.
6-The object of industrial property contrary to the interests of society, public order, humanitarian principles and the Socialist ethics is not protected.
Article 5 the State management for industrial property activities.
1-the Council of Ministers to implement the General management, issued the policy to encourage the development of industrial activities.
2-scientific and Technical Committee of the State Organization of directing the implementation of State policy with respect to industrial property activities.
3-the Patent Bureau in the scientific and Technical Committee (hereafter referred to as patent Bureau) is the State agency that manages industrial property activities, conducting the procedure of recognition of industrial property rights, in cooperation with social organizations, creative associations in the development of industrial activities.
4-the ministries, State committees, other bodies in the Council of Ministers, the provincial people's Committee, central cities and the equivalent administrative units are responsible for the development of industrial activities, within the scope of his management, ensuring the implementation of the State policy for the Organization individuals in that activity.
Article 6 responsibilities of the base unit in the development of industrial activities.
The unit of production, sales, service and technical-scientific research is responsible for creating favourable conditions to the workers create, test and perfect the inventions, utility solutions, industrial designs; implement measures to objects of industrial property protection in timely and effective use, ensure the rights and legitimate interests of the author.
Article 7 the role of civil society organizations.
Vietnam's labor unions, the Communist Youth Union, the society of creation and other social organizations have the right to perform or coordinate with the State administration and the unit base made of measures to support the activities of creating and applying patent Useful solutions, Steam, light industry and protect the rights and legitimate interests of the author, to check the implementation of the legal provisions and the policy of encouraging the development of industrial activities.
Article 8 the concepts used in the Ordinance.
1-Master degree in industrial property protection is the organization or individual that is granted a degree of protection or are transferring ownership of the object of industrial property.
2-author inventions, utility solutions, industrial design is the creator of inventions, utility solutions, industrial designs by his creative labor.
Co-writer inventions, utility solutions, industrial designs are the same ones who contribute innovative labor to create inventions, utility solutions, industrial design.
3-patent of useful solutions and design of public service inventions, utility solutions, industrial design was created when the author made the task of State bodies, State economic units or within the scope of the assigned responsibilities or when the Agency, unit investment funds , equipment to create inventions, utility solutions, industrial design.
 
CHAPTER II of the INDUSTRIAL PROPERTY RIGHTS article 9 right of protection degree holder.
1-for inventions, utility solutions, industrial designs, trademarks, protection degree holders have ownership of the object has to be protected.
Protection degree holders are exclusive use, transfer of ownership or the right to use the industrial property objects for the Organization, the other individual.
2-for the designation of origin of the goods, the degree of protection has the right to use from the date of issuing of protection but are not transferred the right to use it for organization, the other individual.
3-protection degree Holders have the right to request the court hearing infringement of industrial property rights.
Article 10 transfer of ownership, the right to use the industrial property objects.
The transfer of ownership or the right to use industrial property subject to contract through written, registered in the Patent Bureau and in accordance with the law on transfer of technology.
Article 11 use of objects of industrial property protected.
1-The following activities are considered as using inventions, utility solutions, industrial design: production, use, import, circulation, and advertising the products are produced according to the invention, useful solutions, industrial designs are protected as well as the application of the method is patent protected , Helpful solutions.

2-The following activities are considered as use of the trademark and name origin: attaching the trademark, the name export goods processing on product, product packaging or on the transaction papers to mark or specify the origin of the product; advertising of the trademark or appellation of origin of the goods.
Article 12 rights of owners of the degree of protection.
1-The following acts were considered to be infringing the rights of owners of the degree of protection: a) performs any of the acts specified in article 9 and article 11 of this Ordinance without permission of the owners of the degree of protection;
b) use of a sign or designation similar to the trademark was protected to the extent that could cause the wrong lẵn for consumers, cause damage to the interests of the owners of the degree of protection.
2-The following acts are not considered to infringe the rights of owners of the degree of protection: a) the use of the industrial property objects not business purposes;
b) circulation and use of products due to the degree of protection, the owner is entitled to use before or who transferred the right to use was marketed;
c) use of the industrial property objects protected on the transport means of foreign countries are in transit or temporarily staying on the territory of Vietnam, if the use of only aims to maintain the operation of the vehicles.
Article 13 obligation of degree of protection.
Master degree of protection has the following obligations: 1-use or transfer the right to use the invention, useful solutions, industrial designs on the territory of Vietnam consistent with the requirements of socio-economic development of the country.
2-submission fees to maintain the validity of the degree of protection and compensation for the author as specified by the Council of Ministers.
Article 14 of the cases required the transfer of the right to use the industrial property objects.
1-In the following cases, the Chairman of the scientific and Technical Committee of the State has the right to license the use of the industrial property objects for the Organization, individuals are required to use: a) If after the deadline prescribed by the Council of Ministers, the degree of protection do not use patent useful solution, or level of use not consistent with the requirements of socio-economic development of the country without good reason and the Organization, individuals are required to use, after no agreement was with protection degree on the owners transferred the right to use, offered with the scientific and Technical Committee of the State.
b) When an organization, individuals are required to use a single invention, useful solution to use a patent, other useful solutions that require no agreement was with master degree of protection on the transfer of rights of use;
c) When the Chairman of the scientific and Technical Committee of the State review that requires the use of inventions, utility solutions, industrial designs to meet the needs of national defense and national security, as well as the needs and healing for the people and the needs of society.
2-in cases stipulated in points a, b, c, paragraph 1 of this article, the Organization, the individual is granted a license to use to pay for home protection degree a satisfactorily on the basis of the benefit obtained. If the degree of protection and organization, personal use license agreement not be together about paying, you can ask the Court to resolve.
Article 15 the right of the prior user.
If before the priority date of the claim for protection of industrial property rights stipulated in article 19 of this Ordinance that an organization or individual who uses or fully prepared conditions to use inventions, utility solutions, industrial design independently with the applicant , although the degree of protection already granted, still have the right to continue using the objects, but not expand the volume, scope and not transferred the right to use for others.
Article 16 rights and obligations of the person who transferred the ownership, the right to use the industrial property objects.
1-Who is transferring ownership of the object of industrial property have the rights and obligations of owners of the degree of protection from the date of the transfer to be registered in the Patent Bureau.
2-the person who transferred the right to use the industrial property subjects have the right to suggest protection degree holders require the trial court violated causing damage to themselves. If after the time limit of three months from the receipt of the proposal that protection degree holders not made proposals that it transferred the right to use his own has the right to ask the courts for trial.
Article 17 rights of author.
1-author inventions, utility solutions, industrial designs are credited to them, the name of the degree of protection and the scientific-technical documents are published.
Author inventions, utility solutions and industrial design acts have the obligation to inform the Agency about the unit, the result is likely to be protected by themselves create.
2-author inventions, utility solutions, industrial design has the right to receive remuneration, complaints about the violation of the rights of the author.
Protection degree holders are responsible for determining the level of remuneration and compensation for the author on the basis of the benefit obtained by the application of inventions, utility solutions, industrial design.
The Council of Ministers Regulation the minimum wage for the author.
 
CHAPTER III PROCEDURE for RECOGNIZING INDUSTRIAL PROPERTY RIGHTS Article 18 the right to petition for the protection of industrial property objects.
1-for inventions, utility solutions, industrial design, the right to file the request for protection belongs to the author or the legal successor of the author.
2-for inventions, utility solutions and industrial design acts, the right to file the request for protection belongs to the Agency, the provisions in paragraph 3 article 8 to this Ordinance. If after a time limit of 2 months from the date of the notice of the author that the Agency, not the petition for protection of the applicant's rights belong to the author.
3-for inventions, utility solutions and industrial design was created when performing contract research, scientific-technical implementation, then the right to file the request for protection belongs to the party has assigned, if there is no agreement in the contract on the right to petition for protection.
4-for inventions, utility solutions and industrial designs created in the base unit to perform labor contract mode then the right to file the request for protection belongs to the base unit, if the labor contract does not specify who has the right to petition for protection.
5-for the trademark, the right to file the request for protection belongs to the organisation or individual production activities, legitimate business.
6-for the designation of origin of the goods, the right to file the request for protection belongs to organizations, individual production operations, local legal business has the characteristic elements defined in clause 5 article 4 of this Ordinance.
7-for inventions, utility solutions, industrial design, the right to petition for protection can be delivered to the Organization, the other individual in writing.
Article 19 the right to claim priority for the protection of industrial property objects.
1-the right to claim priority for the protection of industrial property is determined by the priority date. The priority date is the date the patent agency or unit are determined by international treaties to which Vietnam participates.
2-in cases like to enjoy priority rights under the international treaties to which Vietnam participates, who filed the petition for protection must be stated in the application and have the responsibility to prove that right.
Article 20 the procedure the applicant would like to request the protection of industrial property objects.

1-petition for the protection of industrial property objects include the documents required by the competent State Agency regulations and be filed with the Patent Bureau.
The Patent Bureau has the right to request the applicant to amend petition for additional protection.
2-the Organization, individuals can directly request the protection of industrial property or through the industrial property agent.
The Organization, individuals are not permanent, no headquarters, or do not have representative offices in Vietnam ask for protection of industrial property objects in Vietnam is through industrial property representative.
Article 21 industrial property representative.
1-industrial property representative's organization, individuals are competent State agencies for permission to operate and are registered in the Patent Bureau.
2-representative of industrial property service representatives in industrial property rights protection and perform other services related to the industrial property activity.
Article 22 review the petition for protection of industrial property rights, issuing and publish the object to be protected.
The Patent Bureau is responsible for considering petitions for protection, protection degree level and published objects are protected according to the procedures prescribed by the Council of Ministers.
Article 23 protection degree and duration.
1-degree of protection of the industrial property rights confirmation of the degree of protection; the author's rights of inventions, utility solutions, industrial design.
2-form and duration of the degree of protection shall be as follows: a) the degree of patent protection by patent, has a validity period of 15 years from the priority date;
b) protection degree useful solution is Using exclusively useful solutions, have validity period of 6 years from the priority date;
c) degree of protection for industrial designs is the industrial design certificate, have a validity period of 5 years from the priority date;
d) degree of protection of the trademark is the certificate of trademark registration, validity term of 10 years from the priority date;
DD) degree of protection the designation of origin of goods is the certificate of registration of the appellation of origin of goods with effect from the date of grant and is not limited in time.
3-at the request of the patentee, patent protection may extend the validity of an industrial design certificate twice, each time period is 5 years and to extend the validity of the certificate of trademark registration many times each term is 10 years.
 
Article 24 these cases protection degree takes effect ahead of time.
1-degree of protection before the deadline lapse in the following cases: a) Home protection degree applicant waive the protection for the Patent Bureau;
b) Server by patent, utility solutions do not pay annuity time;
c) Who was granted the certificate of registration of the trademark, the name of origin of goods ceased manufacturing operations, business;
d) Who was granted the certificate of registration of the trademark is not used or not transferred to others to use within a period of 5 years from the date of certification;
DD) the elements that make up the particular nature of the product bearing the designation of origin of goods no longer exists or the product certification by the person who is registering the name origin of production does not reach to the nature, quality, characteristics.
2 – The degree of protection takes effect ahead of time are recorded in the register book and published in the Official Gazette of industrial property.
Article 25 amendments, cancellation of the degree of protection.
The degree of protection from being modified or cancel the whole or partial force according to the provisions of article 28 of this Ordinance.
Article 26 the secret invention, useful solution suite.
1-inventions, utility solutions related to defense and national security which according to the regulations of the competent State Agency is regarded as a national secret, then called the secret invention, useful solution suite.
2-author, the degree of protection and those relating to employment, lodging, consider the petition for protection, use, transfer of ownership, the right to use the invention, useful solution suite is responsible for maintaining the confidentiality of that object under protection mode of national secrets.
Article 27-protection of industrial property in foreign countries.
Inventions, utility solutions, an industrial design is created in Vietnam as well as the trademarks, the name origin of Vietnam may be required for protection abroad, after the petition for protection of objects that have been filed in Vietnam, if the international treaties to which Vietnam joined not otherwise specified.
 
CHAPTER IV COMPLAINTS, disputes, HANDLE complaints, 28 Violation complaint resolution.
1-the applicant request the protection of industrial property has the right to complain about the decision relating to the acceptance, consideration, refused to grant the degree of protection.
Throughout the duration of the degree of protection, any organisation or individual has the right to complain about the issuing of protection of objects of industrial property does not meet the requirements specified in paragraphs 1, 2, 3, 4, 5, 6 article 4 of this Ordinance.
The Patent Bureau Director is responsible for resolving the claims specified in paragraph 1 and paragraph 2 clause 1 of this article. If the complainant does not agree with the decision of the Director of the patent shall have the right to complain to the Chairman of the scientific and Technical Committee of the State. The decision of the Chairman of the scientific and Technical Committee of the State is the final decision.
2-every organization, the worker has the right to complain about the degree of protection for people who do not have the right to apply the provisions of article 18 of this Ordinance or the degree of protection confirmed not true author.
The Patent Bureau Director is responsible for resolving the claims specified in paragraph 1 of this clause. If it does not agree with the decision of the Director of the patent within a period of 3 months from the date of the decision that the parties concerned have the right to ask the courts for trial. After the court hearing, Chief patent procedures retained, modified or abolished the effect of degree of protection according to the decision of the Court was in effect.
3-in the case do not agree with the compensation, author inventions, utility solutions, industrial design and the legitimate heirs of the author has the right to ask the courts to resolve.
4-the time limit for settling the claims according to the administrative procedure prescribed in paragraph 1, item 2 of this regulation by the Council of Ministers.
 
Article 28 jurisdiction of the Court.
The people's Court, the central cities and administrative units the equivalent was the trial of first instance in civil proceedings in order for the dispute and violating the provisions in paragraph 3 article 9, paragraph 2 article 14, paragraph 2 and paragraph 3 Article 28 of this Ordinance.
In case one or both of the parties litigant is held or foreign individuals then disputed by the people's Court of Hanoi City or the people's Court of Ho Chi Minh City to trial at the request of the plaintiff.
Article 30 settlement of disputes relating to the contract of transfer of ownership, the right to use the industrial property objects.
1-the dispute relating to the contract of transfer of ownership, the right to use the industrial property subjects to be addressed by the court process for the civil contract disputes or economic contracts under the provisions of the law.

2-disputes concerning contracts of transfer of ownership, the right to use the industrial property objects that one or both parties are individuals or organizations to be resolved at arbitration bodies or in other trial agency agreement by the two sides.
Article 31 handling of the breach.
People would violate the rights of owners of rights, protection degree of the author, the unauthorized use of trademarks, appellations of origin of goods cause damage to consumers; violation of the obligation to register the trademark; disclose the secret inventions, utility solutions; violation of regulations on the protection of industrial property rights in foreign countries or other provisions of this Ordinance, then customize the level of mild or severe may be disciplined, the administrative sanction or prejudice to criminal responsibility.
 
Chapter V FINAL CLAUSES Article 32 active encouragement of technical innovations – rationalize production.
The State encourages the activity of technical innovations – rationalize production (the initiative) and ensure the rights of the author.
The base unit has the responsibility to create favorable conditions for the activity of the worker's initiative, gaining recognition apply initiative and paying for the author as specified by the Council of Ministers.
Article 33 of the Council of Ministers regulates in detail the enforcement of this Ordinance.
Supreme courts adjudication of disputes tutorials for the protection of industrial property rights.
Hanoi, January 28, 1989
 
 

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