RESTRICTEDWORLD TRADE
ORGANIZATIONWT/ACC/VNM/12
26 June 2000
(00-2590)
Working Party on the
Accession of VietnamOriginal:  English
ACCESSION OF VIETNAM
Action Plan for the Implementation of the TRIPS Agreement
The Government of the Socialist Republic of Vietnam has submitted the following Action
Plan for the Implementation of the Trade-Related Intellectual Property Rights (TRIPS), with the
request that it be circulated to the members of the Working Party.
_______________WT/ACC/VNM/12
Page 2Plan of Action for the Implementation of the TRIPS Agreement
1. The Plan of Legislation
The legal system of Vietnam for protection of intellectual property rights (provided for mainly in the Sixth Part of the Civil Code 1995 and its
implementing regulations) was based upon consultation of relevant laws of other countries all over the world and two fundamenta l conventions of the World
Intellectual Property Organization, namely, the Paris Convention for the Protection of Industrial Property and the Berne Conven tion for the Protection of Literary
and Artistic works, as well as provisions of the TRIPS Agreement. Therefore, in general it has already met current internationa l standards. However, several of its
provisions are still inconsistent with the TRIPS Agreement, and are therefore to be amended and supplemented. Vietnam has launc hed a legislation plan  with the
aim to fully implement the TRIPS Agreement by the end of 2000, as follows:
The WTO requirements under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of VietnamThe legislation plan Time and progress made
1. National Treatment
Article 3 of the TRIPS Agreement and
Note 3 thereof provide that each Membershall accord to the nationals of otherMembers treatment no less favorable than
that it accords to its own nationals with
regard to the protection of intellectualproperty, where “protection”  shall mean toinclude matters affecting the availability,acquisition, establishment, scope,maintenance and enforcement of IPRs.The Circular No. 23 TC/TCT of  May 9,
1997 of the Ministry of Finance guiding thecollection and management of fees andcharges in the field of industrial propertyprovides the rate applied to foreign
organisations and individuals higher than
that applied to Vietnamese organisationsand individuals.To make an amendment to the Circular
No. 23 TC/TCT of May 9, 1997 of theMinistry of Finance to provide a singlerate applied to both foreigners andVietnamese.Submission of the Draft: 2000
Promulgation: 2000WT/ACC/VNM/12
Page 3The WTO requirements under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of VietnamThe legislation plan Time and progress made
2. Copyrights and Related Rights
The TRIPS Agreement requires the
protection of copyrights in compliance withthe standards of the Bern Convention, andprovides in more detail and adds specificobligations concerning computer programs,databases or compilations of data, it also
requires the protection of related rights in
compliance with the standards as providedfor in Article 14.The prevailing laws of Vietnam do not
have provisions corresponding to the
following standards provided for in theTRIPS Agreement: the detailed regulationson the protection of computer programs andcompilations of data (Article 10); theprovisions on the term of protection of
performers (Article 14.1); the provisions on
the rights of fixation and communication tothe public of broadcasts (Article 14.3);  theprovisions on the right of rental ofphonograms (Article 14.4); the provisionson the right of communication to the public
in respect of performance of dramatic,
dramatico-musical and musical works(Article 9.1);
Section 774 and Section 776 of the Civil
Code 1995 restrict rights of authors of the
published works in respect of the
performance of the dramatic, dramatico-musical, musical and the fixation of themusical works, that are inconsistent withthe requirements of  Article 9.1 of theTRIPS Agreement.To make an amendment to the Decree
No. 76/CP of November 26, 1996 of the
Government on copyrights, wherebyprovisions related to the implementationof international conventions on theprotection of copyrights and otherprovisions shall be supplemented.Submission of the Draft: 2000
Promulgation: 2000WT/ACC/VNM/12
Page 4The WTO requirements under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of VietnamThe legislation plan Time and progress made
3. Trademarks, including service marks
Article 16.1 of the TRIPS Agreement
provides: “The owner of a registeredtrademark shall have the exclusive right toprevent all third parties not having theowner’s consent from using in the courseof trade identical or similar signs for goods
or services which are identical or similar to
those in respect of which the trademark isregistered where such use would result in alikelihood of confusion”.
Articles 16.2 and 16.3 of the TRIPS
Agreement require the protection of well-
known trademarks in compliance with
Section 6bis of the Paris Conventionagainst unauthorized registration and use,including the use for disimilar goods andservices.The scope of trademark protection is more
restricted than that required by the TRIPS
Agreement: According to Section 53.1 andSection 34.3 of the Decree No. 63/CP ofOctober 24, 1996 of the Government ondetailed provisions of industrial property,the acts which shall be considered as
infringements of industrial property rights
in respect of a registered trademark withinthe term of protection include the use ofthat trademark without authorization of thetrademark owner.
The protection of well-known trademark is
just against the unauthorized registration as
provided for in Section 6.1 of the DecreeNo. 63/CP of October 24, 1996 of theGovernment on detailed provisions ofindustrial property.To make an amendment to the Decree
No. 63/CP of October 24, 1996 of the
Government on detailed provisions ofindustrial property, whereby the scopeof protection of registered trademarkswill be extended and provisions on theprotection of well-known trademarks
will be added.Submitted the Draft: 1999
Promulgation: 2000
4. Geographical indications, including
appellations of origin
Article 22 of the TRIPS Agreement
requires the protection of geographicalindications in general, includingappellations of origin.The protection of geographical indications
is inadequate in comparison with
requirements of the  TRIPS Agreement:
According to Section 7.2 of the Decree63/CP of October 24, 1996 of theGovernment on detailed provisions ofindustrial property, the only one protectedtype of geographical indications is
appellations of origin of goods;
Geographical indications other thangeographical names, even symbols of acountry or a locality from which the goodsoriginate, are not protected.To promulgate regulations on the
protection of geographical indications in
the following new pieces of legislation:
- A Decree of the Government on the
protection of trade secrets, geographicalindications, trade names and theprotection against unfair competitionrelating to industrial property;
- A Circular of the Ministry of Science,
Technology and Environment guidingthe implementation of provisions on theprotection of geographical indicationsas provided for in the said Decree.Submitted the Draft: 1999
Promulgation: 2000
  Submission of the Draft: 2000
Promulgation: 2000WT/ACC/VNM/12
Page 5The WTO requirements under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of VietnamThe legislation plan Time and progress made
5. Industrial Designs
Article 26.1 of the  TRIPS Agreement
provides: “The owner of a protectedindustrial design shall have the exclusiveright to prevent third parties not having hisconsent from making, selling or importingarticles bearing or embodying a design
which is a copy, or substantially a copy, of
the protected design, when such acts areundertaken for commercial purposes".The scope of industrial design protection is
more restricted than that required by the
TRIPS Agreement: According to Section53.1 and Section 34.2 of the Decree No.63/CP of October 24, 1996 of theGovernment on detailed provisions ofindustrial property, the acts which shall be
considered as infringements of a registered
industrial design within the term ofprotection include the use of that industrialdesign without authorization of theindustrial design owner.To make an amendment to Decree
63/CP of October 24, 1996 of the
Government on detailed provisions ofindustrial property, whereby the scopeof protection of industrial designs willbe extended.Submitted the Draft: 1999
Promulgation: 2000
6. Patents for inventions/micro-organisms
Article 27 of the TRIPS Agreement
requires patent protection of inventions in
all fields of technology, includingmicroorganisms.Microorganisms are patentable (not falling
under the list of patent exclusions as
provided for in Section 4.4 of the Decree
63/CP of October 24, 1996 of theGovernment on detailed provisions ofindustrial property).
However, at present there is still a lack of
detailed provisions on the form of patent
application, the examination procedures as
well as deposit procedures in respect ofmicroorganisms, and there has not yet beenenough sufficient technical conditions toconduct the examination of the patentapplication in respect of microorganisms. To promulgate a Circular of the
Ministry of Science, Technology and
Environment providing the application
form, the   examination guidelines anddeposit of microorganisms for thepurpose of examination of the patentapplications in respect ofmicroorganisms.Submission of the Draft: 2000
Promulgation: 2000WT/ACC/VNM/12
Page 6The WTO requirements under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of VietnamThe legislation plan Time and progress made
7. Patent for inventions/plant varieties
Article 27.3 of the TRIPS Agreement
requires that plant varieties shall beprotected by the patent system or by aneffective sui generis system.Plant varieties are  not patentable (falling
under the list of patent exclusions as
provided for in Section 4.4 of the Decree63/CP of October 24, 1996 of theGovernment on detailed provisions ofindustrial property).
The prevailing legal system of  the
protection of plant varieties (including the
Decree No. 31/CP of 1981 on innovationsand inventions; the Circular No.  01/NN-KCM of 1994 guiding the payment ofremuneration for the authors of new plantand animal varieties; the joint Circular No.
1608/NN/UBKTNN of December 23, 1982
on the registration and  the inventionprotection in respect of plant varieties; theDecree No. 07/CP 1996 on the managementof plant varieties) is inefficient and fails to
encourage creative activities: The rights of
the author of a  new plant variety, confferedby the Certificate of New Plant VarietyAuthor which is effective within 15 yearsfrom the filling date of the application,include moral rights and the right to receive
remuneration which is awarded at a low
rate (it only bears a symbolic value). Theexclusive right to use the new plant varietybelongs to the State.To promulgate provisions on the
protection of new plant varieties in
accordance with the UPOV standards inthe following new pieces of legislation:
- A Governmental Decree on the
protection of new plant varieties;
- A Circular of the Ministry of
Agriculture and Rural Developmentguiding the said Governmental Decree.Submission of the Draft: 2000
Promulgation: 2000Submission of the Draft: 2000
Promulgation: 2000WT/ACC/VNM/12
Page 7The WTO requirements under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of VietnamThe legislation plan Time and progress made
8. Process Patents /Proceedings in respect
of the Infringement
Article 34.1 of the TRIPS Agreement
provides: in the civil proceedings in respectof the patent rights infringement of aprocess for obtaining  a product, thejudicial authorities shall have the authority
to order the defendant to prove that the
process used to obtain the allegedlyinfringing product is different from thepatented process, otherwise any products inone of the following two cases shall bedeemed to have been obtained by the
patented process:
- if the product obtained by the patented
process is new;
- if there is a substantial likelihood that the
allegedly infringing product was made by
the process and the owner of the patent has
been unable through reasonable efforts todetermine whether that process wasactually used to obtain the allegedlyinfringing product or not.The laws and regulations of Vietnam on
civil procedures require the plaintiff to
prove the accusation against the defendantrather than require the defendant to provehimself to be innocent.To promulgate a regulation on the
obligation of the defendant to prove
himself to be innocent in the cases ofinfringement in respect of the processpatent in a new pieces of legislation:
- A joint Circular of  the Supreme
People’s Court, the Supreme People’s
Prosecution Institute and the Ministry of
Science, Technology and Environmentguiding the judgement of cases relatedto industrial property rights.Submission of the Draft: 2000
Promulgation: 2000
9. Layout-Designs of Integrated Circuits
The TRIPS Agreement requires that the
layout-designs of integrated circuits shall
be protected in accordance with the
standards provided for in Articles 35 - 38.Vietnam does not yet have any regulations
on the protection of layout-designs ofintegrated circuits as prescribed in  Articles
35 - 38 of the TRIPS Agreement.To promulgate regulations on the
protection of layout-designs ofintegrated circuits in the following new
pieces of legislation:
- A Decree of the Government on the
protection of layout-designs ofintegrated circuits;
- A Circular of the Ministry of Science,
Technology and Environment guidingthe implementation of the said Decree.Submission of the Draft: 2000
Promulgation: 2000
Submission of the Draft: 2000
Promulgation: 2000WT/ACC/VNM/12
Page 8The WTO requirements under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of VietnamThe legislation plan Time and progress made
10. Undisclosed information, including
trade secret and test data
The TRIPS Agreement requires that
undisclosed information (including tradesecrets and test data) shall be protected inthe course of ensuring protection againstunfair competition in accordance with the
standards as provided for in Article 39.Vietnam does not yet have any regulations
on the protection of undisclosed
information (including trade secrets andtest data) as prescribed in the Articles 35 -39 of the TRIPS Agreement.To promulgate regulations on the
protection of undisclosed information in
the following new pieces of legislation:
- A Decree of the Government on the
protection of business secrets,geographical indications, trade namesand the protection against unfair
competition related to industrial
property;
-  Circulars of the Ministry of Science,
Technology and Environment, theMinistry of Agriculture and RuralDevelopment and the Ministry of Health
guiding the  implementation of
provisions on the protection of businesssecrets in the said Decree.Submitted the Draft: 1999
Promulgation: 2000
Submission of the Draft: 2000
Promulgation: 2000WT/ACC/VNM/12
Page 9The WTO requirements under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of VietnamThe legislation plan Time and progress made
11. Enforcement of intellectual property
rights
The TRIPS Agreement requires the
effective enforcement of intellectualproperty rights by civil, criminal andadministrative procedures and remedies,including border measures in accordance
with Part III of the Agreement.Vietnam does not yet have detailed
regulations guiding the implemention of the
laws on general civil, criminal andadministrative procedures and remediesagainst infringements of intellectualproperty rights in accordance with  Part IIIof the TRIPS Agreement.To promulgate detailed provisions on
civil, criminal and administrative
procedures and remedies against theinfringements of intellectual propertyrights in the following new pieces oflegislation:
- The Criminal Code
- A joint Circular of the Supreme
People's Court, the Supreme People'sProsecution Institute and the Ministry ofScience, Technology and Environmentguiding the judgement of cases relatedto industrial property rights;
- A joint Circular of Supreme People's
Court, the Supreme People'sProsecution Institute and the Ministry ofCulture and Information guiding thejudgement of cases related to copyrights
and related rights;
- A Governmental Decree on
administrative measures againstviolations in the field of industrialproperty;
- A Circular of the  Ministry of Science,
Technology and Environment guiding
the implemention of the Decree No.12/1999/N§-CP;
- A joint Circular of the General
Department of Customs and theMinistry of Science, Technology and
Environment on border measures and
procedures against infringement ofindustrial property rights in exportationand importation;   Promulgated: 1999
Submission of the Draft: 2000
Promulgation: 2000
Submission of the Draft: 2000
Promulgation: 2000
Promulgated: The Decree No.
12/1999/N§CP of March 6, 1999
Submission of the Draft: 2000
Promulgation: 2000
Submission of the Draft: 2000
Promulgation: 2000WT/ACC/VNM/12
Page 10The WTO requirements under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of VietnamThe legislation plan Time and progress made
- A joint Circular of the General
Department of Customs and the
Ministry of Culture and Information onborder measures and procedures againstinfringement of copyrights and relatedrights in exportation and importation;
- A joint Circular of the Ministry of
Science, Technology and Environment
and the Ministry of Trade on marketcontrol measures and procedures againstinfringement of industrial propertyrights in manufacture, trade and serviceactivities.
- A joint Circular of the Ministry of
Culture and Information and theMinistry of Trade on market controlmeasures and procedures againstinfringement of copy- rights and related
rights in manufacture, trade and service
activities.Submission of the Draft: 2000
Promulgation: 2000
Submission of the Draft: 2000
Promulgation: 2000
Submission of the Draft: 2000
Promulgation: 2000
12. Transitional protection
Article 70.2 of the TRIPS Agreement
requires each Member to apply allprovisions of the TRIPS Agreement to allsubject matter meeting the followingconditions: the subject matter which is in
existance, protected by that Member, meets
or comes subsequently to meet the criteriafor protection under the term of thisAgreement at the date of application of thisAgreement for the Member.According to Section 69.2 of the Decree
No. 63/CP of October 24, 1996 of theGovernment on detailed regulationsconcerning industrial property, patentsgranted on the basis of old regulations shallcontinue to be valid under such legal
provisions until the date of expiry, i.e. the
end of 15 years from the priority date,rather than 20th year from the filing date asnewly provided for in the Decree No.63/CP to meet the TRIPS requirements.To promulgate provisions on the
application of the 20 year term ofprotection to inventions protected underthe old legal system by an amendmentto the Decree No.63/CP of October 24,1996 of the Government on detailed
provisions of industrial property.Submitted the Draft: 1999
Promulgation: 2000WT/ACC/VNM/12
Page 112. The plan of ensuring the effective enforcement of laws
The State of Vietnam already has an administrative system of in tellectual property both in the central and local governments an d a mechanism of law
enforcement agencies to ensure intellectual property rights enfo rcement, and intellectual property has become of increasing int erests of wide circles of the
society. However, in order to ensure the effective operation of the legal system of intellectual property protection, Vietnam s hould strengthen capacity of its
Governmental agencies and improve the public awareness. Vietnam ha s launched a detailed plan of ensuring the effective enforcem ent of laws as follows:
WTO Requirement under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of
VietnamPlan of ensuring the effective
enforcement of lawsSchedule
Part IV of the TRIPS Agreement requires
Members to ensure that the acquisition
and maintenance of intellectual property
rights procedures shall not be complicatedand unreasonably delayed.
Part III of the TRIPS Agreement requires
Members to ensure that procedures of
intellectual property rights enforcement
shall be in time, effective, equal and notcomplicated.Capacity of the State administrative
agencies (especially the industrial
property right establishment agency) is far
from being in line with that of othercountries, and insufficient to ensure highquality procedures.
The system of intellectual property right
enforcement is the system of general
enforcement bodies, which are
cumbersome, administrative nature,uncentralised authority, overlappedfunctions and without the coorperationpower among them;
Capacity of the enforcement agencies is
far from being in line with that of other
countries.
The public awareness of intellectual
property is still poor. The activities ofeducation, training, propagation,dissemination with regard to intellectual
property laws have been initially- To strengthen capacity of the
intellectual property right
establishment agencies (mainly of  the
industrial property agency) in thefollowing directions: (i) automatingtechnical operation; (ii) retraining thestaffs; (iii) separating the State
management function (establishment
of rights) from other service functions,including information service andconsulting service;
- To set up an electronic network of
industrial property information;
- To survey and make general
assessment of the structure of theenforcement agencies, to propose amodel structure in the followingdirections: (i) setting up the industrialproperty right/copyright Courts of 3 or
5 regions that would be located in
large cities (Hanoi, Haiphong,Danang, Ho Chi Minh City): (ii)centralising the intellectual propertycontrol function on 2 administrativeagencies, namely Customs Office with
the function of border control and the
industrial property right/copyrightmanagement agencies with the2000- 2002
2000- 2002
 2000- 2002WT/ACC/VNM/12
Page 12WTO Requirement under the TRIPS
AgreementThe matters inconsistent with the TRIPS
requirements in the prevailing laws of
VietnamPlan of ensuring the effective
enforcement of lawsSchedule
developed, however all these activities are
still unsystematic and inappropriate interms of scale. The activities of naturalpersons and legal entities are spontaneousand individual; Social organisations in thefield of intellectual property have not been
established yet.function of domestic control;
- To strengthen capacity (materials,
techniques, staffs) of the system ofenforcement agencies;
- To establish a research and training
institution; to establish regular training
programmes on intellectual property to
develop human resource forintellectual property system; to carryout such training programmes for keysectors which are still lack ofprofessional staffs, especially to train
and improve the enforcement staffs; to
propagate and disseminate intellectualproperty laws to improve publicawareness.2000- 2002
2000- 2002
3. Technical Assistance Request
In order to implement the above-mentioned plan of action, Viet nam would like to request from WTO technical assistance under a s pecial program of
intellectual property cooperation for which Vietnam would make deta iled proposals appropriate to its actual needs, similar to t he technical assistance for WTO
developing country Members under Article 67 of the TRIPS Agreement.
________