Chương II Nghị định 65/2023/NĐ-CP: Chủ thể, nội dung, giới hạn quyền sở hữu công nghiệp

Chapter II

HOLDERS, CONTENTS, AND LIMITATIONS OF INDUSTRIAL PROPERTY RIGHTS

Article 33. Holders of industrial property rights

1. Holders of industrial property rights include organizations and individuals owning subject matters of industrial property prescribed in Article 121 of the Law on Intellectual Property or organizations and individuals authorized by industrial property owners.

2. In case a protection title of an invention, industrial design, layout design, or mark is issued to many organizations and individuals according to Clause 2 Article 86, Clause 5 Article 87, and Clause 3 Article 90 of the Law on Intellectual Property, the industrial property rights shall be jointly owned by such organizations and individuals. Co-owners shall exercise their ownership rights under civil laws.

Article 34. Scope of industrial property rights

1. The scope of the industrial property rights to an invention, industrial design, layout design, mark, or geographical indication is determined based on the scope of protection recorded in the National Industrial Design Register, International Register of Marks, and International Register of Industrial Designs or the protection title, certificate of international registration of the mark, or decision on the protection acceptance of the internationally registered industrial design.

2. The scope of rights to a trade name is determined based on the scope of protection of the trade name, including the trade name, business field, and business territory where the trade name is used by the holder legally. The registration of the name of a business organization or individual in business procedures is not considered as using such the name but a condition for its use to be legal.

3. The scope of rights to a business secret is determined based on the scope of protection of the business secret, including the collection of information forming the state secret arranged in an accurate and adequate order for extraction.

4. Holders of industrial property rights shall receive rights and perform obligations under the protection scope with conditions prescribed in Articles 132, 133, 133a, 134, 135, 136, 136a, and 137 of the Law on Intellectual Property.

Article 35. Rights of authors of inventions, industrial designs, and layout designs

1. The moral rights of authors prescribed in Clause 2 Article 122 of the Law on Intellectual Property shall be protected indefinitely.

2. Rights to receive remuneration of authors prescribed in Clause 3 Article 122 of the Law on Intellectual Property shall be protected throughout the protection period of inventions, industrial designs, and layout designs.

3. If there is no other agreement between the owner and the author, the settlement of remuneration shall be performed within 30 days from the date the owner receives the payment of the transfer of use rights or within 90 days from the end date of the fiscal year if the remuneration of the author is determined according to Point a Clause 1 Article 135 of the Law on Intellectual Property.

Article 36. State management responsibilities for signs of geographical origins

1. People’s Committees of provinces and centrally affiliated cities shall take charge and cooperate with the Ministry of Agriculture and Rural Development of Vietnam and the Ministry of Industry and Trade of Vietnam in identifying types of specialties, characteristics of products, production processes of specialties with geographical indications under the management of ministries and central and local authorities based on the local planning.

2. People’s Committees of provinces and centrally affiliated cities shall permit the use of other location names and signs indicating the geographical origins of local specialties for the registration of collective marks and certification marks; submit the applications for registration of geographical indications used for local specialties or authorize People's Committees of districts, district-level towns, district-level cities, and centrally affiliated cities or professional agencies of People’s Committees of provinces and centrally affiliated cities to carry out the submission.

3. The Minister of Science and Technology of Vietnam shall provide guidelines on the criteria for identifying other location names and signs indicating the geographical origins of products.

Article 37. Exercising rights to ownership of geographical indications

1. Regarding geographical indications of Vietnam, agencies and organizations that may manage geographical indications (hereinafter referred to as "geographical indication management organizations") prescribed in Clause 4 Article 121 of the Law on Intellectual Property include:

a) The People’s Committee of a province or centrally affiliated city where there are geographical areas corresponding to the geographical indications in case the geographical indications belong to one province;

b) People’s Committees of provinces or centrally affiliated cities that are authorized representatives of other People’s Committees of provinces or centrally affiliated cities where there are geographical areas corresponding to the geographical indications in case the geographical indications belong to multiple provinces;

c) People’s Committees of districts, district-level town, district-level cities, or centrally affiliated cities or professional agencies of People's Committees of provinces or centrally affiliated cities authorized to manage the geographical indications by People's Committees of provinces or centrally affiliated cities;

d) Agencies or organizations granted rights to manage geographical indications by People's Committees of provinces or centrally affiliated cities, providing that such entities represent the benefits of all the organizations and individuals granted rights to use geographical indications according to Clause 4 Article 121 of the Law on Intellectual Property.

2. Geographical indication management organizations prescribed in Point d Clause 1 of this Article may exercise the rights of owners to geographical indications prescribed in Clause 2 Article 123 and Article 198 of the Law on Intellectual Property.

3. Regarding foreign geographical indications, owners and organizations may exercise the rights of owners to geographical indications. Geographical indication management organizations shall be identified under the laws of the country of origin of such geographical indications.

Article 38. Exercising rights to geographical indication management of geographical indication management organizations

1. Geographical indication management organizations prescribed in Clause 1 Article 37 of this Decree shall:

a) Develop and issue regulations on geographical indication management;

b) Manage geographical indications according to their issued regulations;

c) Prepare and disclose lists of organizations and individuals using geographical indications based on notifications of such organizations and individuals. The mentioned lists shall be updated upon any change;

d) Adopt measures to manage the use of geographical indications of organizations and individuals producing products with geographical indications to ensure that such products meet the standards of the nature, specific quality, and reputation in conformity with the descriptions of the specific natures of products with geographical indications;

dd) Monitor and perform measures to prevent and forbid acts of infringement on rights to geographical indications; request competent authorities to handle any violation under laws;

e) Report on the management of geographical indications to industrial property right authorities once every two years.

2. Geographical indication management regulations prescribed in Point a Clause 1 of this Article shall meet the following requirements:

a) Geographical indication management regulations include:

a1) Products with geographical indications: names, descriptions (characteristics, specific quality, production process, production area, etc.) corresponding to the content in the descriptions of specific characteristics of the products;

a2) Recognition of organizations and individuals using geographical indications: applications for recognition of organizations and individuals using geographical indications include recognition requests, documents proving that organizations and individuals engage in the production of products with geographical indications at the geographical areas corresponding to the geographical indications and other documents (if necessary); the assessment of applications, inspection and assessment of the authentication of documents, including compliance with descriptions of specific characteristics of products with geographical indications (if necessary) and recording of information of organizations and individuals into the list of organizations and individuals using geographical indications;

a3) Inspection and control mechanisms of the use of geographical indications: inspection and control contents (geographical origins, characteristics, specific quality of products, production processes, etc.); inspection and control plans; inspection and control tools and measures; inspection and control authorities and organizations, etc.;

a4) Rights and responsibilities of organizations and individuals using geographical indications: organizations and individuals shall ensure the maintenance of the characteristics, specific quality, and reputation of the products with geographical indications; provide notifications for geographical indication management organizations to be recorded in the lists of organizations and individuals using geographical indications before using geographical indications; report on the use of geographical indications to geographical indication management organizations annually, etc.;

a5) Rights and responsibilities of geographical indication management organizations in the management of geographical indications;

a6) Funding for geographical indication management;

a7) Measure to handle violations of Regulations.

b) Suggestions or opinions on geographical indication management regulations of organizations and individuals engaging in the production of products with geographical indications shall be collected before the issuance.

c) Geographical indication management regulations shall not include unreasonable limitations of legal rights to use geographical indications of organizations and individuals engaging in the production of products with geographical indications.

Article 39. Protecting agrochemical product test data

1. Agrochemical products are chemical products used in agriculture and rural development.

2. Agrochemical product test data shall be protected if such data meets the conditions prescribed in Clause 1 Article 128 of the Law on Intellectual Property and is requested for protection by the applicant when applying for marketing authorization.

3. Authorities competent to issue marketing authorization for agrochemical products shall protect the test data prescribed in Clause 2 of this Article.

Article 40. Using subject matters of industrial property

1. Acts of circulating products are prescribed in Point d Clause 1, Point b Clause 2, and Point b Clause 7 of Article 124 of the Law on Intellectual Property, including selling, displaying for sale, and transporting products.

2. The use of mark samples practically different from the protected mark samples by the owners or persons authorized by the owners is considered as the use of marks according to Clause 5 Article 124 of the Law on Intellectual Property if the difference is insignificant and does not change the distinctiveness of marks.

Article 41. Using inventions on behalf of the State

1. The use of inventions on behalf of the State for public interests, non-commercial purposes, national defense and security, disease prevention and treatment, and nutrition for the people or the satisfaction of other essential needs of society according to Clause 1 Article 133 of the Law on Intellectual Property shall be performed by ministries, ministerial agencies, or designated organizations and individuals based on the issuance of decisions on compulsory transfer of rights to use inventions prescribed in Point a Clause 1 Article 145 and Paragraph 2 Clause 1 Article 147 of the Law on Intellectual Property. If the imported products or products with use rights transferred by the receiving party under a production contract meet the requirements for national defense and security, disease prevention and treatment, and nutrition for the people or other essential needs of society, the right holder shall be considered to have fulfilled the use obligations according to Article 136 of the Law on Intellectual Property.

2. Procedures for issuing decisions on compulsory transfer of rights to use inventions in case of using inventions on behalf of the State shall comply with Article 55 and Article 56 of this Decree.

Article 42. Compensating owners of inventions for late issuance of marketing authorization of pharmaceutical products

1. In case the procedure for first-time registration of marketing authorization of pharmaceutical products falls behind schedule according to Article 131a of the Law on Intellectual Property, after the marketing authorization is issued, within 2 months from the date the applicant submits the written request following Form No. 02 Appendix I of this Decree, authorities competent to issue marketing authorization of pharmaceutical products shall issue confirmation of the late issuance of marketing authorization, specifying the time delayed.

2. If the owner of the invention patent has a written document following Form No. 03 Appendix I of this Decree enclosed with confirming documents of the authority competent to issue marketing authorization of pharmaceutical products on the late issuance of marketing authorization as prescribed in Clause 1 of this Article, the industrial property right authority shall notify the owner of compensation schemes and shall:

a) Exempt the owner from paying fees for the use of the invention patent during the time the procedure for registering marketing authorization of pharmaceutical products produced under such a patent is delayed during the processing of the request for validity maintenance;

b) Deduct the paid fees for the next processing of validity maintenance request if the fees for the use of the invention patent are paid during the delay;

c) Refund use fees to the owner of the invention patent within 3 months after receiving the valid application according to regulations in case the owner decides not to maintain the validity or the invention patent expires.

3. Regarding pharmaceutical products produced under many invention patents, the owner shall be exempted from the use fees of every concerned invention patent.

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