Chương XII Luật Sở hữu trí tuệ 2005: Điều kiện bảo hộ quyền đối với giống cây trồng

Chapter XII

CONDITIONS FOR PROTECTION OF RIGHTS TO PLANT VARIETIES

Article 157. Organizations and individuals whose rights to plant varieties are eligible for protection

1. Organizations and individuals whose rights to plant varieties are eligible for protection means those who select and breed or discover and develop plant varieties or who invest in the selection and breeding or the discovery and development of plant varieties or to whom rights to plant varieties are transferred.

2. Organizations and individuals defined in clause 1 of this Article shall include Vietnamese organizations and individuals; organizations and individuals of foreign countries which have concluded agreements on the protection of plant varieties with the Socialist Republic of Vietnam; and foreign organizations and individuals with permanent residential addresses in Vietnam or with establishments producing or trading in plant varieties in Vietnam.

Article 158. General conditions for plant varieties to be eligible for protection

Plant varieties eligible for protection means plant varieties which have been selected and bred or discovered and developed, are on the list of State protected plant species promulgated by the Ministry of Agriculture and Rural Development; and are new, distinct, uniform, stable and designated by proper denominations.

Article 159. Novelty of a plant variety

A plant variety shall be deemed new if reproductive materials or harvested materials of such variety have not yet been sold or otherwise distributed for the purpose of exploitation in the territory of Vietnam by the registration right holder defined in article 164 of this Law or his or her licensee one (1) year before the filing date of the application for registration, or for exploitation outside the territory of Vietnam six (6) years before the filing date of the application for registration for timber trees or vines, or four (4) years for other plant varieties.

Article 160. Distinctness of a plant variety

1. A plant variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing the application or on the priority date, as the case may be.

2. Plant varieties whose existence is a matter of common knowledge defined in clause 1 of this article mean those falling into one of the following cases:

 (a) Their reproductive materials or harvested materials have been widely used in the market of any country at the time of filing of the application for registration for protection;

 (b) They have been protected or registered on the list of plant species in any country;

 (c) They are the subject matter of an application for registration for protection or registration on the list of plant species in any country, provided that such application has not been rejected;

 (d) Their detailed description has been published.

Article 161. Uniformity of a plant variety

A plant variety shall be deemed uniform if, subject to variation which may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.

Article 162. Stability of a plant variety

A plant variety shall be deemed stable if its relevant originally described characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each cycle.

Article 163. Denominations of plant varieties

1. The registrant must designate a proper denomination for a plant variety which must be the same as the denomination registered in any country where and when an application for registration for protection was filed.

2. The denomination of a plant variety shall be deemed proper if it is distinguishable from those of other plant varieties of common knowledge within the same or similar species.

3. Denominations of plant varieties shall be deemed improper in the following cases:

 (a) They consist of numerals only, except where such numerals are relevant to characteristics or the breeding of such variety;

 (b) They violate social ethics;

 (c) They may easily mislead as to features or characteristics of such variety;

 (d) They may easily mislead as to identification of the breeder;

 (dd) They are identical or confusingly similar to marks, trade names or geographical indications protected before the date of publication of the application for registration for protection of such plant variety;

 (e) They are identical or similar to the denomination of a harvested material of such plant variety;

 (g) They affect prior rights of other organizations or individuals.

4. Organizations and individuals who offer for sale or bring onto the market reproductive materials of plant varieties must use the denominations of such plant varieties as stated in protection titles even after the expiration of the protection terms.

5. When denominations of plant varieties are combined with marks, trade names or indications similar to denominations of plant varieties already registered for offer for sale or brought onto the market, such denominations must still be distinguishable.