Decree No. 65/2023/ND-CP

DECREE

DETAILING A NUMBER OF ARTICLES AND MEASURES FOR IMPLEMENTING THE LAW ON INTELLECTUAL PROPERTY WITH RESPECT TO INDUSTRIAL PROPERTY, PROTECTION OF INDUSTRIAL PROPERTY RIGHTS, PLANT VARIETY RIGHTS, AND STATE MANAGEMENT OF INTELLECTUAL PROPERTY

Pursuant to the Law on Organisation of the Government dated 19 June 2015; the Law Amending and Supplementing a Number of Articles of the Law on Organisation of the Government and the Law on Organisation of Local Government dated 22 November 2019;

Pursuant to the Law on Intellectual Property dated 29 November 2005; the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property dated 19 June 2009; the Law Amending and Supplementing a Number of Articles of the Law on Insurance Business and the Law on Intellectual Property dated 14 June 2019; and the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property dated 16 June 2022;

At the proposal of the Minister of Science and Technology;

The Government promulgates a Decree detailing a number of articles and measures for implementing the Law on Intellectual Property with respect to industrial property, protection of industrial property rights, plant variety rights, and state management of intellectual property.

Part One

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details, and provides measures for implementing, provisions of the Law on Intellectual Property on:

1. The establishment, subjects, content and limits of industrial property rights, the transfer of industrial property rights, industrial property representation, and measures to promote industrial property activities.

2. The determination of infringing acts and of the nature and extent of infringement of industrial property rights and plant variety rights, the determination of damage, the request for and settlement of requests for handling infringement, the handling of infringement of industrial property rights and plant variety rights, the control of exported and imported goods relating to industrial property and plant variety rights, appraisal of industrial property and plant variety rights, and state management of intellectual property.

Article 2. Subjects of application

1. Vietnamese organisations and individuals, and foreign organisations and individuals meeting the conditions for enjoying protection of industrial property rights in Vietnam under international treaties to which Vietnam is a member.

2. Organisations and individuals holding protected industrial property rights or plant variety rights, or committing acts infringing industrial property rights or plant variety rights as prescribed by the Law on Intellectual Property.

3. Other relevant organisations and individuals.

Article 3. Interpretation of terms

In this Decree, the following terms are construed as follows:

1. “Vietnamese organisations and individuals” means individuals, legal entities and other subjects of civil law.

2. “Applicant” means an organisation or individual filing an application to establish industrial property rights, or an organisation or individual filing a request for handling of infringement of industrial property rights or plant variety rights.

3. “Paris Convention” means the Paris Convention for the Protection of Industrial Property of 1883, as revised in 1967 and 1979.

4. “PCT Treaty” means the Patent Cooperation Treaty of 1970, as amended in 1984 and 2001.

5. “Madrid Agreement” means the Madrid Agreement Concerning the International Registration of Marks of 1891, as revised in 1979.

6. “Madrid Protocol” means the Protocol Relating to the Madrid Agreement of 1989, as amended in 2006 and 2007.

7. “Hague Agreement” means the Hague Agreement Concerning the International Registration of Industrial Designs, Act of 1999.

8. “PCT application” means a patent application filed under the PCT Treaty.

9. “PCT application designating or electing Vietnam” means a PCT application filed at any member of the PCT Treaty, including Vietnam, in which Vietnam is a designated or elected state.

10. “PCT application entering the national phase” means a PCT application designating or electing Vietnam that is filed with the state management agency for industrial property rights.

11. “PCT application of Vietnamese origin” means a PCT application filed from Vietnam that requests protection at any member of the PCT Treaty, including Vietnam.

12. “Madrid application” means an international trademark registration application filed under the Madrid Agreement or the Madrid Protocol.

13. “Madrid application of Vietnamese origin” means a Madrid application filed from Vietnam requesting trademark protection at other members of the Madrid Agreement or the Madrid Protocol.

14. “Madrid application designating Vietnam” means a Madrid application requesting trademark protection in Vietnam, originating from other members of the Madrid Agreement or the Madrid Protocol.

15. “Hague application” means an international industrial design registration application filed under the Hague Agreement.

16. “Hague application designating Vietnam” means a Hague application requesting industrial design protection in Vietnam, originating from any member of the Hague Agreement, including Vietnam.

17. “Hague application of Vietnamese origin” means a Hague application filed from Vietnam that requests industrial design protection at any member of the Hague Agreement, including Vietnam.

18. “International Bureau” means the International Bureau of the World Intellectual Property Organization.

19. “Infringing act” means an act infringing industrial property rights or plant variety rights.

20. “Handling of infringing acts” means the handling of acts infringing industrial property rights or plant variety rights.

21. “Infringer” means an organisation or individual committing an act infringing industrial property rights or plant variety rights.

22. “Infringing element” means an element created by an act infringing industrial property rights or plant variety rights.

23. “Act under consideration” means an act that is suspected and considered in order to conclude whether or not it is an infringing act.

24. “Subject matter under consideration” means a subject matter that is suspected and considered in order to conclude whether or not it infringes industrial property rights or plant variety rights.

25. “Request for handling of infringement” means a request to apply measures to handle an infringing act.

26. “Law on Intellectual Property” means the Law on Intellectual Property dated 29 November 2005, as amended and supplemented by the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property dated 19 June 2009, the Law Amending and Supplementing a Number of Articles of the Law on Insurance Business and the Law on Intellectual Property dated 14 June 2019, and the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property dated 16 June 2022.

Part Two

STATE MANAGEMENT OF INTELLECTUAL PROPERTY

Article 4. Principle of unified state management of intellectual property

The organisation of state management of intellectual property specified in Articles 10 and 11 of the Law on Intellectual Property is based on the principle of unity in objectives, content and measures under the general direction of the Government, with clear assignment of responsibilities and close coordination among ministries, ministerial-level agencies, agencies attached to the Government, and People's Committees at all levels.

Article 5. Responsibility for presiding over and coordinating state management of intellectual property

1. The Ministry of Science and Technology is responsible for presiding over, and coordinating with the Ministry of Culture, Sports and Tourism, the Ministry of Agriculture and Rural Development, other ministries, ministerial-level agencies, agencies attached to the Government, People's Committees at all levels and relevant agencies in, carrying out the following general activities to ensure unified state management of intellectual property:

a) Developing, promulgating or submitting to competent authorities for promulgation, and organising the implementation of, general strategies, policies and legal documents on protection of intellectual property rights;

b) Monitoring, urging and inspecting the performance of general intellectual property tasks assigned by the National Assembly and the Government to ministries, ministerial-level agencies, agencies attached to the Government, and People's Committees at all levels under Articles 10 and 11 of the Law on Intellectual Property and this Decree;

c) Summarising, assessing and reporting to the Government on the state of intellectual property rights protection, and proposing specific policies and measures to improve the effectiveness of the intellectual property system and ensure unified state management of intellectual property;

d) Developing and directing the implementation of general programmes and schemes on protection of intellectual property rights, and measures for coordination among competent state agencies in the field of protection of intellectual property rights;

dd) Negotiating, signing accession to, and organising the implementation of, general international treaties on intellectual property; proposing the handling of national disputes relating to intellectual property in international relations;

e) Building databases and establishing a national information network for state management of intellectual property and protection of intellectual property rights.

2. The Ministry of Culture, Sports and Tourism is responsible for coordinating with the Ministry of Science and Technology in performing the tasks specified in Clause 1 of this Article; ensuring the performance of the state management function for copyright and related rights, and ensuring that policies, strategies and legal documents on copyright and related rights are consistent with general policies, strategies and legal documents on intellectual property; and periodically or ad hoc providing information to the Ministry of Science and Technology on state management and protection of intellectual property rights, to coordinate in handling arising issues and to summarise reports to the Prime Minister.

3. The Ministry of Agriculture and Rural Development is responsible for coordinating with the Ministry of Science and Technology in performing the tasks specified in Clause 1 of this Article; ensuring the performance of the state management function for plant variety rights, and ensuring that policies, strategies and legal documents on protection of plant variety rights are consistent with general policies, strategies and legal documents on intellectual property; and periodically or ad hoc providing information to the Ministry of Science and Technology on state management and protection of intellectual property rights, to coordinate in handling arising issues and to summarise reports to the Prime Minister.

Article 6. Responsibilities of the Ministry of Science and Technology for industrial property

The Ministry of Science and Technology has the following responsibilities in state management of industrial property:

1. Developing and organising the implementation of strategies and policies for protection of industrial property rights.

2. Promulgating, submitting to competent authorities for promulgation, and organising the implementation of legal documents on industrial property.

3. Organising the system of agencies performing the function of state management of industrial property.

4. Providing professional guidance, and organising training and professional development in industrial property.

5. Organising the establishment of industrial property rights, registration of contracts on transfer of industrial property rights, and other procedures relating to industrial property protection titles.

6. Exercising the right to compulsorily transfer the right to use inventions under Article 147 of the Law on Intellectual Property.

7. Presiding over or coordinating in implementing measures to protect the lawful rights and interests of organisations, individuals, the State and society in industrial property.

8. Managing industrial property appraisal activities; issuing industrial property appraiser cards.

9. Inspecting and examining compliance with the law on industrial property; settling complaints and denunciations and handling violations of the law on industrial property.

10. Organising industrial property information and statistics activities; managing and organising activities relating to the national industrial property database.

11. Organising education, communication and dissemination of knowledge, policies and laws on industrial property.

12. Managing industrial property representation activities; issuing practising certificates for industrial property representation services.

13. International cooperation in industrial property; proposing the handling of disputes between Vietnam and other countries on industrial property.

14. Performing other tasks assigned by the Government.

Article 7. Coordination mechanism in state management of intellectual property

1. The Ministry of Science and Technology is responsible for presiding over, and coordinating with the Ministry of Culture, Sports and Tourism, the Ministry of Agriculture and Rural Development and relevant agencies in, the protection, inspection, examination and handling of infringement of intellectual property rights.

2. The state management agency for intellectual property is responsible for fully and promptly responding to requests from agencies competent to handle infringement of intellectual property rights.

3. The state management agency for intellectual property is responsible for participating in inspection or examination teams when requested, to serve inspection and examination work.

Article 8. Responsibilities of ministries, ministerial-level agencies, agencies attached to the Government, and People's Committees of provinces and centrally run cities for intellectual property

Ministries, ministerial-level agencies, agencies attached to the Government, and People's Committees of provinces and centrally run cities, within the scope of their functions and duties, are responsible for coordinating with the Ministry of Science and Technology, the Ministry of Culture, Sports and Tourism and the Ministry of Agriculture and Rural Development in performing the following specific tasks:

1. Performing the tasks specified in Clause 1, Article 5 of this Decree and directly performing specific tasks assigned by the Government.

2. Ensuring that intellectual property policies and laws are implemented in localities in a manner consistent with and complying with the Law on Intellectual Property and documents guiding its implementation.

3. Periodically or ad hoc providing information to the Ministry of Science and Technology on state management and protection of intellectual property rights, to coordinate in handling arising issues and to summarise reports to the Prime Minister.

Article 9. Responsibilities of People's Committees of provinces and centrally run cities, ministries, ministerial-level agencies and agencies attached to the Government for industrial property

1. People's Committees of provinces and centrally run cities have the following responsibilities in state management of industrial property in their localities:

a) Organising the implementation of industrial property policies and laws;

b) Developing, promulgating and organising the implementation of local regulations on industrial property;

c) Organising the system for managing industrial property activities in the locality and implementing measures to enhance the effectiveness of that system;

d) Organising communication and dissemination of knowledge, policies and laws on industrial property, and implementing measures to promote industrial property activities;

dd) Guiding and supporting organisations and individuals in carrying out industrial property procedures;

e) Coordinating with relevant agencies in protecting industrial property rights and handling violations of the law on industrial property;

g) Inspecting and examining compliance with the law on industrial property, and settling complaints and denunciations on industrial property in the locality;

h) Managing geographical indications of the locality, including place names and other signs indicating the geographical origin of local specialty products;

i) International cooperation in industrial property in the locality.

2. Ministries, ministerial-level agencies and agencies attached to the Government are responsible for organising and directing the implementation of the law on industrial property and managing industrial property subject matter under their management.

Part Three

INDUSTRIAL PROPERTY RIGHTS

Chapter I

ESTABLISHMENT OF INDUSTRIAL PROPERTY RIGHTS

Section 1. GENERAL PROVISIONS ON ESTABLISHMENT OF INDUSTRIAL PROPERTY RIGHTS

Article 10. Grounds and procedures for establishing industrial property rights

1. Industrial property rights in inventions, layout designs, industrial designs, marks and geographical indications are established on the basis of a decision of the state management agency for industrial property rights granting a protection title to the applicant registering those subject matters under Chapters VII, VIII and IX of the Law on Intellectual Property and Appendix I of this Decree.

Industrial property rights in marks registered internationally under the Madrid Agreement and the Madrid Protocol are established on the basis of acceptance of protection by the state management agency for industrial property rights of that international registration.

Industrial property rights in industrial designs registered internationally under the Hague Agreement are established on the basis of acceptance of protection by the state management agency for industrial property rights of that international registration.

2. Industrial property rights in well-known marks are established on the basis of widespread use in practice of the mark under Article 75 of the Law on Intellectual Property, without the need to carry out registration procedures. When exercising rights and settling disputes over rights in a well-known mark, the owner of the mark must prove its rights with evidence as prescribed at Point c, Clause 5, Article 91 of this Decree.

3. Industrial property rights in trade names are established on the basis of lawful use in practice of the trade name in the corresponding area (territory) and business field, without the need to carry out registration procedures. When exercising rights and settling disputes over rights in a trade name, the subject having the trade name must prove its rights with evidence as prescribed at Point b, Clause 5, Article 91 of this Decree.

4. Industrial property rights in business secrets are established on the basis of financial or intellectual investment or any lawful means of finding, creating or obtaining the information, and keeping confidential the information constituting the business secret, without the need to carry out registration procedures. When exercising rights and settling disputes over rights in a business secret, the subject having the business secret must prove its rights with evidence as prescribed at Point a, Clause 5, Article 91 of this Decree.

5. The right to protection against unfair competition is established on the basis of competition activities in practice, without the need to carry out registration procedures at the state management agency for industrial property rights. When exercising the right to protection against unfair competition, the subject must prove its rights with evidence showing the subject matter, field, territory and time of business relating to the competition activity.

Article 11. Industrial property rights under international treaties

1. Where an international treaty relating to industrial property to which Vietnam is a member provides for recognition and protection of the industrial property rights of organisations and individuals of members under Article 6 of the Law on Intellectual Property, the industrial property rights of organisations and individuals of other members are recognised and protected in Vietnam.

Industrial property rights are protected within the scope and term consistent with the provisions of the international treaty, and without the need to carry out registration procedures under the Law on Intellectual Property.

2. The Ministry of Science and Technology publishes all necessary information relating to industrial property rights recognised and protected in Vietnam under international treaties.

Article 12. Priority right of applications for inventions, industrial designs and marks

The priority right for applications for inventions, industrial designs and marks specified in Article 91 of the Law on Intellectual Property applies as follows:

1. Where an applicant for an invention, industrial design or mark wishes to enjoy the priority right under the Paris Convention, the applicant's request for priority right is accepted if the following conditions are met:

a) The applicant is a Vietnamese citizen, a citizen of a member country of the Paris Convention, or a citizen of another country residing or having a production or business establishment in Vietnam or in a member country of the Paris Convention;

b) The first application has been filed in Vietnam or in a member country of the Paris Convention and contains a part corresponding to the priority claim of the application for the invention, industrial design or mark;

c) The application is filed within the following period from the filing date of the first application: 06 months for an industrial design application or a mark application, and 12 months for an invention application;

d) In the application for the invention, industrial design or mark, the applicant clearly states the request to enjoy the priority right and, where the first application referred to at Point b of this Clause was filed abroad, submits a copy of the first application certified by the Office receiving the first application. The copy of the first application may be submitted within 03 months from the filing date;

dd) The fee for claiming the priority right is fully paid.

2. The first application filed in Vietnam or in a member country of the Paris Convention as specified at Point b, Clause 1 of this Article is an application eligible for confirming the date on which it was filed in the relevant member country, regardless of the result of processing that application.

3. Where an applicant for an invention, industrial design or mark wishes to enjoy the priority right under another international treaty, the priority claim is accepted if the conditions on priority right prescribed in that international treaty are met.

Article 13. Right to register industrial property under international treaties

1. Foreign organisations and individuals meeting the conditions for protection of industrial property rights in Vietnam specified in Article 2 of this Decree may file industrial property applications in Vietnam under international treaties on or relating to international filing procedures.

2. Vietnamese organisations and individuals may file international industrial property applications to request protection of their rights in Vietnam if an international treaty so provides.

Article 14. Security control procedures for inventions

1. For an invention in a technical field affecting security and national defence listed in Appendix VII of this Decree, created in Vietnam and belonging to the right of registration of an individual who is a Vietnamese citizen permanently residing in Vietnam or of an organisation established under Vietnamese law, in order to meet the condition for filing an invention application abroad under Clause 1, Article 89a of the Law on Intellectual Property, security control procedures must be carried out before the state management agency for industrial property rights publishes that invention application.

2. The Ministry of National Defence and the Ministry of Public Security shall designate agencies to receive and process requests for determining inventions in applications for inventions in technical fields affecting national defence and security under Clause 3 of this Article.

3. Within 01 month from the date of receiving the written notice from an applicant for an invention under the national procedure of the intention to file abroad, in order to carry out security control of the invention under Clause 1 of this Article, or from the date a PCT application of Vietnamese origin is filed through the state management agency for industrial property rights, if there are grounds to suspect that the invention in the application falls within the case specified in Clause 1 of this Article, the state management agency for industrial property rights shall suspend the application examination process and send a written request to the designated agency of the Ministry of National Defence or the Ministry of Public Security to determine whether the invention is in a technical field affecting national defence and security. The designated agency of the Ministry of National Defence or the Ministry of Public Security shall issue a document determining whether the invention stated in the application is an invention in a technical field affecting national defence and security within 03 months from the date the state management agency for industrial property rights sends the request.

4. For invention applications specified in Clause 3 of this Article, the state management agency for industrial property rights shall notify the applicant of the suspension of the application examination process to carry out the security control process under Article 89a of the Law on Intellectual Property within 07 working days from the date the request is sent to the designated agency of the Ministry of National Defence or the Ministry of Public Security.

5. Within 20 days from the date of receiving the notice of the designated agency of the Ministry of National Defence or the Ministry of Public Security that the subject matter in the invention application is in a technical field affecting national defence and security under Clause 3 of this Article, the state management agency for industrial property rights shall notify the applicant of that information and, at the same time, require the applicant to register the invention under procedures consistent with the law on protection of state secrets within 01 month from the date of notification and carry out the following procedures:

a) For an invention application filed under the national procedure: where the applicant files the invention application under procedures consistent with the law on protection of state secrets, the application continues to be processed under law. Where the applicant does not register the invention under procedures consistent with the law on protection of state secrets within the prescribed time limit, the application is deemed withdrawn and is destroyed by the state management agency for industrial property rights under the law on protection of state secrets, unless the applicant has grounds to prove that the invention is not a state secret.

b) For a PCT application of Vietnamese origin filed through the state management agency for industrial property rights: the application is destroyed under the law on protection of state secrets and the provision at Point e, Clause 1, Article 20 of this Decree is implemented, unless the applicant has grounds to prove that the invention is not a state secret.

6. The state management agency for industrial property rights continues the application examination process as prescribed in the following cases:

a) At the end of the 03-month period specified in Clause 3 of this Article, the state management agency for industrial property rights has not received a notice from the designated agency of the Ministry of National Defence or the Ministry of Public Security.

b) The designated agency of the Ministry of National Defence or the Ministry of Public Security notifies that the invention in the application is not an invention in a technical field affecting national defence and security.

The state management agency for industrial property rights shall notify the applicant of the continued processing of the application within 01 month from the time stated at Point a of this Clause or from the date of receiving the notice stated at Point b of this Clause.

7. For an application in the case specified in Clause 6 of this Article, the applicant has the right to file that invention application abroad.

Article 15. Calculation of time limits

1. Time limits in industrial property activities are calculated in accordance with the provisions on time limits of the Civil Code.

2. A time limit given to the applicant and related parties for submitting, amending or supplementing documents or giving opinions may be extended once by exactly the period fixed in the notice of the state management agency for industrial property rights, provided that the person requesting the extension submits a written extension request before the end of the fixed time limit and pays the prescribed extension fee.

3. The period during which a force majeure event or objective obstacle occurs, making it impossible for an organisation or individual with rights and obligations to exercise its rights and obligations within the time limit, is excluded from the time limit if that organisation or individual so requests and has sound evidence proving that situation. Where the request is accepted, the state management agency for industrial property rights shall issue a decision or notice revoking the decision or notice already issued on the ground that the organisation or individual did not exercise its rights and obligations on time, and shall restore the application processing to the status as if the time limit had not ended.

4. A force majeure event is an event that occurs objectively, cannot be foreseen (for example natural disasters, enemy action, etc.) and cannot be remedied despite the application of all necessary measures within one's capacity.

An objective obstacle is an obstacle caused by objective circumstances (for example illness, business trips, studying far away, etc.) that makes the person with rights and obligations unable to know that their lawful rights and interests have been infringed, or unable to exercise their rights and obligations.

Article 16. Amendment and supplementation of industrial property applications

1. Before the state management agency for industrial property rights issues a decision refusing to accept the application or a decision granting or refusing to grant a protection title, the applicant may:

a) Amend or supplement documents in the application provided that the amendment or supplementation does not expand the scope (volume) of protection disclosed in the description for an invention application, in the set of photographs, drawings and description of the industrial design as shown in the set of photographs and drawings for an industrial design application, or in the mark sample and list of goods and services for a mark application, and does not change the nature of the subject matter stated in the application;

b) Amend the name, address and country code of the applicant, the name, nationality and address of the author of the invention, layout design or industrial design; amend the industrial property representative.

2. The amendment or supplementation of an application is carried out as follows:

a) Where the applicant voluntarily amends or supplements the application after the state management agency for industrial property rights accepts the application as valid, including a change of legal representative in Vietnam, the request for amendment or supplementation must be made using Form No. 04 in Appendix II of this Decree;

b) Where the application is amended or supplemented before the state management agency for industrial property rights accepts or refuses to accept the application as valid, or is amended or supplemented on the basis of a notice of the state management agency for industrial property rights relating to that application, the request for amendment or supplementation must be made in writing clearly stating the content of the requested amendment or supplementation;

c) The applicant may request amendment or supplementation with the same content relating to multiple applications for the same type of industrial property subject matter in one Declaration or one written request for amendment or supplementation;

d) The person requesting amendment or supplementation of the application must pay the following fees:

d1) The fee for examining the request for amendment or supplementation for each amended content as prescribed, and a copy of the fee payment document (where the fee is paid via postal services or directly into the account of the state management agency for industrial property rights);

d2) The fee for publishing the information on amendment or supplementation of the application as prescribed, if the amended or supplemented content must be published under Point a, Clause 3 of this Article. Where the amendment or supplementation must be made to correct errors attributable to the state management agency for industrial property rights, the applicant does not have to pay the publication fee;

dd) For a request to amend or supplement the following documents, the applicant must submit the corresponding amended or supplemented documents:

dd1) Part or all of the description and abstract of the invention, for an invention application;

dd2) 04 sets of photographs or drawings and a description of the integrated circuit manufactured according to the layout design, for a layout design application;

dd3) 04 sets of drawings or 04 sets of photographs and a description, for an industrial design application;

dd4) 05 samples of the mark and a list of goods and services bearing the mark, for a mark application;

dd5) A description of the specific characteristics of the product bearing the geographical indication and a map of the geographical area corresponding to the geographical indication, for a geographical indication application.

The documents amending or supplementing the application must meet the requirements for such documents in Appendix I of this Decree. For requests for amendment or supplementation at Points dd1, dd2 and dd3 of this Clause, the applicant must also submit a detailed explanation of the amended or supplemented content compared with the original documents submitted.

e) Where the name, address or country code of the applicant, or the name or nationality of the author, is amended, the applicant must submit a confirming document (original or certified copy) or a legal document (certified copy) proving the change (a decision on change of name or address; an enterprise registration certificate recording the change of name or address, etc.). Where the industrial property representative is amended, the applicant must submit a declaration of change of industrial property representative.

3. The state management agency for industrial property rights processes requests to amend or supplement applications as follows:

a) Publish the amended or supplemented content where the request concerns information relating to a formally valid application stated in the decision accepting the valid application; the name and nationality of the author of the invention, industrial design or layout design; the abstract of the invention with drawings (if any); the set of photographs or drawings of the industrial design; the mark sample and accompanying list of goods and services; the description of the specific characteristics of the product bearing the geographical indication; and the name of the product bearing the geographical indication;

b) Where the applicant requests amendment or supplementation of the application under Point a, Clause 2 of this Article, the amended or supplemented content is examined under Article 109 of the Law on Intellectual Property and relevant legal provisions;

c) Where a request for amendment or supplementation of the application is filed after a notice of intention to grant a protection title in the cases below, the application must be re-examined and the applicant must pay the prescribed fee:

c1) Amending information relating to the nature of the subject matter stated in the application: the description of the invention; the description, set of photographs and drawings of the industrial design; the mark sample, the list of goods and services bearing the mark, the regulation on use of the collective mark, the regulation on use of the certification mark; the description of the specific characteristics of the product bearing the geographical indication, and the geographical area corresponding to the geographical indication;

c2) Changing the applicant of a mark;

d) Notify acceptance or refusal of the request for amendment or supplementation within the time limit prescribed in Clause 4, Article 119 of the Law on Intellectual Property;

dd) Notify acceptance or refusal of the request for amendment or supplementation in the documents sent to the applicant in the course of processing the relevant industrial property application, for the case specified at Point b, Clause 2 of this Article.

Article 17. Division and withdrawal of industrial property applications; request for substantive examination and conversion of invention applications

1. Division of industrial property applications is carried out as follows:

a) Before the state management agency for industrial property rights issues a decision refusing to accept the application or a decision granting or refusing to grant a protection title, the applicant may divide the application (separating one or some technical solutions in an invention application, one or some industrial designs in an industrial design application, or part of the list of goods and services in a mark application into one or more new applications, called divisional applications);

b) A divisional application bears a new application number and takes the filing date of the original application or the priority date(s) of the original application (if any). For each divisional application, the applicant must pay the filing fee and all fees and charges for procedures carried out independently of the original application (apart from procedures already carried out for the original application that need not be repeated for the divisional application), but does not have to pay the fee for examining the priority claim (except where an industrial design application is divided because unity is not ensured). The divisional application is formally examined and continues to be processed under the procedures not yet completed for the original application. The divisional application must be published as prescribed;

c) The applicant must submit an explanation of the subject matter claimed for protection and of the changes compared with the original application when filing the divisional application;

d) The original application (after division) continues to be processed under application processing procedures or application amendment procedures.

2. Withdrawal of industrial property applications under Article 116 of the Law on Intellectual Property is carried out as follows:

a) Withdrawal must be made by the applicant or by a representative authorised by the applicant through a written declaration. For an application filed through a representative, the power of attorney must clearly state the authorisation to withdraw the application or be accompanied by an instruction letter specifying the application number to be withdrawn;

b) Within 02 months from the date of receiving the request, the state management agency for industrial property rights shall:

b1) Issue a notice accepting withdrawal of the application where the withdrawal request meets the provisions at Point a of this Clause, terminate processing of the application, and record the withdrawal in the application file. A withdrawn industrial property application cannot be restored and may only serve as the basis for claiming priority under Clause 3, Article 116 of the Law on Intellectual Property;

b2) Issue a notice of intention to refuse to accept withdrawal where the withdrawal request does not meet the provisions at Point a of this Clause, and fix a period of 02 months from the date of the notice for the applicant to remedy the deficiencies;

b3) Issue a notice refusing to accept withdrawal if the applicant does not remedy the deficiencies within the period prescribed at Point b2 of this Clause or remedies them unsatisfactorily.

3. Conversion of invention applications under Point dd, Clause 1, Article 115 of the Law on Intellectual Property is carried out as follows:

a) Before the state management agency for industrial property rights issues a decision refusing to accept the application or a decision granting or refusing to grant a protection title, the applicant for an invention may convert the request for a Patent into a request for a Utility Solution Patent, or vice versa, for all or part of the application, provided that the applicant pays the prescribed filing fee for the converted application. In the case of partial conversion of an application, the applicant must carry out the procedure for dividing the application before requesting conversion;

b) After receiving a valid request for conversion, the state management agency for industrial property rights continues to carry out the procedures for processing the converted application under the corresponding provisions, but does not repeat procedures already carried out for the application before the conversion request.

4. A third party requesting the state management agency for industrial property rights to conduct substantive examination of an invention application under Article 113 of the Law on Intellectual Property shall comply with the following:

a) The request for substantive examination of an invention application must be made using Form No. 05 in Appendix I of this Decree;

b) The time limit for filing the request for substantive examination of an invention application is as prescribed in Clauses 1 and 2, Article 113 of the Law on Intellectual Property;

c) The person requesting substantive examination of the invention application must pay the prescribed search fee and substantive examination fee;

d) The request for substantive examination of an invention application is notified to the applicant for that invention within 03 months from the date of receiving the request;

dd) Where the request for substantive examination is invalid, within 01 month from the date of receiving it, the state management agency for industrial property rights shall notify and fix a period of 02 months from the date of the notice for the requester to remedy the deficiencies. Where the requester does not remedy the deficiencies within the fixed period or remedies them unsatisfactorily, the state management agency for industrial property rights shall notify refusal to conduct substantive examination of the application;

e) Where the request for substantive examination is valid, the state management agency for industrial property rights shall conduct substantive examination of the application under Article 114 of the Law on Intellectual Property and relevant legal provisions and notify the requester of the result.

Article 18. Recording a change of applicant for an industrial property application

1. Before the state management agency for industrial property rights issues a decision refusing to accept the application or a decision granting or refusing to grant a protection title, the applicant may request the state management agency for industrial property rights to record a change of applicant on the basis of assignment, inheritance, succession or a decision of a competent authority.

2. Recording a change of applicant due to assignment of an application is carried out as follows:

a) The dossier requesting recording of a change due to assignment of an application comprises:

a1) The request to record the assignment of the application, made using Form No. 05 in Appendix II of this Decree;

a2) The document assigning the industrial property application (original or certified copy), which must contain the main contents including the names and addresses of the assignor and assignee; and the number of the assigned application or information sufficient to identify it;

a3) A copy of the document proving payment of the prescribed fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights);

b) A request to record a change due to assignment of multiple applications of the same applicant may be made in a single declaration, provided that the prescribed examination fee is paid corresponding to the number of applications for which recording of assignment is requested;

c) A request to record a change due to assignment of an application is processed like a request to amend or supplement an application under Article 16 of this Decree. Where a request to record a change due to assignment of a mark application is filed after a notice of intention to grant a protection title, the mark application must be re-examined and the assignment content published. The requester must pay the prescribed application examination fee and publication fee.

3. Recording a change of applicant due to inheritance, succession or a decision of a competent authority is carried out upon request on the basis of inheritance or succession of assets upon consolidation, merger, division or split of a legal entity, joint venture, association, establishment of a new legal entity by the same owner, conversion of business form, or a decision of a Court or another competent authority. The procedure for requesting recording of a change of applicant in these cases is carried out like the procedure for amending or supplementing an application under Article 16 of this Decree.

Section 2. PCT APPLICATIONS AND THEIR PROCESSING

Article 19. PCT applications

1. PCT applications include PCT applications of Vietnamese origin and PCT applications entering the national phase.

2. For a PCT application of Vietnamese origin, the applicant may file through the state management agency for industrial property rights or directly with the International Bureau. An application filed directly with the International Bureau must be made in a language prescribed in the PCT Treaty and meet the formal and content requirements prescribed in the PCT Treaty. An application filed through the state management agency for industrial property rights must be made in English, each application in 01 copy, and meet the formal and content requirements prescribed in the PCT Treaty, and the applicant must pay the preliminary formality check fee and the fees and charges prescribed in the Regulations under the PCT Treaty and in the law on fees and charges of the member countries designated in the PCT application.

3. For a PCT application designating or electing Vietnam, in order to enter the national phase, the applicant must submit to the state management agency for industrial property rights, within 31 months from the priority date (if the application claims priority) or from the international filing date, the following documents:

a) The invention registration declaration, made using Form No. 01 in Appendix I of this Decree;

b) A copy of the international application (where the applicant requests entry into the national phase before the date of international publication);

c) A Vietnamese translation of the description and abstract in the international application (the published version, or the originally filed version if the application has not been published, and the amended version and an explanation of the amendments, if the international application was amended under Article 19 and/or Article 34.2(b) of the PCT Treaty);

d) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights);

dd) A power of attorney (where the request is filed through a representative).

Article 20. Processing PCT applications of Vietnamese origin filed through the state management agency for industrial property rights

1. After receiving a PCT application of Vietnamese origin, the state management agency for industrial property rights is responsible for carrying out the following procedures:

a) Collecting the preliminary formality check fee;

b) Determining whether the subject matter claimed for protection in the application is a state secret;

c) Notifying the prescribed fees for the applicant to transfer to the International Bureau and the International Searching Authority under the PCT Treaty;

d) Checking and processing the application under the PCT Treaty;

dd) Forwarding the application to the International Bureau and the International Searching Authority where the application meets preliminary formal requirements, the fees under national law are paid in full and on time, and the subject matter claimed for protection in the application is not a state secret;

e) Not carrying out further work where the subject matter claimed for protection in the application is a state secret.

2. After a PCT application of Vietnamese origin has been forwarded by the state management agency for industrial property rights to the International Bureau, all transactions relating to the application are carried out by the applicant directly with the International Bureau or with the competent agencies of the PCT member countries designated in the application, under the PCT Treaty.

Article 21. Processing PCT applications entering the national phase

A PCT application entering the national phase is processed as follows:

1. A priority claim in a PCT application entering the national phase is processed in accordance with the PCT Treaty and the Regulations under the PCT Treaty. To enjoy the priority right, the applicant must:

a) Reaffirm the priority claim in the declaration;

b) Pay the fee for examining the priority claim;

c) Submit a Vietnamese translation of documents submitted to the International Bureau at the request of the state management agency for industrial property rights and the necessary documents under Rule 17.1(a) of the Regulations under the PCT Treaty.

2. The applicant may amend or supplement documents in the application. The amendment or supplementation of documents in the application must comply with the following:

a) Articles 28 and 41 of the PCT Treaty, Rules 52.1(b) and 78.1(b) of the Regulations under the PCT Treaty, and Article 115 of the Law on Intellectual Property;

b) The power of attorney and the document assigning the right to file in the international phase (if any) must be submitted within 34 months from the priority date (if the application claims priority) or from the international filing date;

c) Documents amending or supplementing the application submitted by the applicant to the state management agency for industrial property rights must be in Vietnamese.

3. The time at which processing of a PCT application in the national phase begins is the first day of the thirty-second month from the priority date (if the application claims priority) or from the international filing date. If the applicant makes a written request for early processing of the PCT application in the national phase, the PCT application will be processed before the time limit prescribed in this Clause, in accordance with Article 23.2 of the PCT Treaty.

4. A PCT application entering the national phase undergoes formality examination and substantive examination under the procedures prescribed for invention applications filed under the national procedure, and is published within 02 months from the date of accepting the application as valid.

Section 3. HAGUE APPLICATIONS AND THEIR PROCESSING

Article 22. Hague applications

1. Hague applications include Hague applications designating Vietnam and Hague applications of Vietnamese origin.

2. For a Hague application of Vietnamese origin, the applicant may file through the state management agency for industrial property rights or directly with the International Bureau. An application filed with the International Bureau must be made in a language prescribed in the Hague Agreement and meet the formal and content requirements prescribed in the Hague Agreement.

3. A Hague application filed through the state management agency for industrial property rights must be made in English, each application in 02 copies, and meet the formal and content requirements prescribed in the Hague Agreement, and the applicant must pay the international application transmission fee and the fees and charges prescribed in the Hague Agreement and in the law on fees and charges of the designated member countries.

Article 23. Processing Hague applications of Vietnamese origin filed through the state management agency for industrial property rights

1. Where a Hague application of Vietnamese origin is filed through the state management agency for industrial property rights, that agency is responsible for carrying out the following procedures:

a) Collecting the international application transmission fee;

b) Notifying, within 20 days from the date of receiving the application, the fees that the applicant must pay directly to the International Bureau under the Hague Agreement;

c) Preliminarily checking the application form within 15 days from the date of receiving the application;

d) Where the application has deficiencies, notifying the applicant of the deficiencies and fixing a period of 12 days from the date of the notice for the applicant to remedy them;

dd) Forwarding the Hague application of Vietnamese origin to the International Bureau within 01 month from the date of receiving the application.

2. The date on which the state management agency for industrial property rights receives a Hague application of Vietnamese origin is regarded as the filing date of the international industrial design registration application if the International Bureau receives that application within 01 month from the date on the receipt stamp of the state management agency for industrial property rights.

3. After a Hague application of Vietnamese origin has been filed with the International Bureau, all transactions relating to the application are carried out by the applicant directly with the International Bureau or with the competent agencies of the Hague Agreement member countries designated in the application, under the Hague Agreement.

Article 24. Processing Hague applications designating Vietnam

After receiving a notice from the International Bureau, the state management agency for industrial property rights processes a Hague application designating Vietnam as follows:

1. The state management agency for industrial property rights conducts substantive examination of the application as for an industrial design application filed under the national procedure, except in the cases specified in Clauses 2, 3, 4, 5, 6, 7 and 9 of this Article. Within 06 months from the date the International Bureau issues its notice, the state management agency for industrial property rights shall conclude on the protectability of the industrial design in the application.

2. Where the industrial design in the application meets the protection conditions under Vietnamese law and the application has no deficiencies, the state management agency for industrial property rights carries out the following procedures:

a) Before the end of the 06-month period stated in Clause 1 of this Article, the state management agency for industrial property rights issues a decision accepting protection of the internationally registered industrial design in the application, records it in the National Register of Industrial Property (Part on Internationally Registered Industrial Designs), and sends the International Bureau a statement of acceptance of protection for the internationally registered industrial design in the International Bureau's form;

b) Publishes the decision in the Industrial Property Gazette within 02 months from the date of the decision.

3. Where the industrial design does not meet the protection conditions or the application still has deficiencies (missing photographs/drawings so that the set of photographs/drawings does not fully disclose the design features of the industrial design, or the international registration does not meet Vietnam's declarations, or there is information to be verified, etc.), before the end of the 06-month period stated in Clause 1 of this Article, the state management agency for industrial property rights issues a notice of refusal in the International Bureau's form, clearly stating the content and reasons for refusal, and sends that notice to the International Bureau.

4. Where some of the registered industrial designs do not meet the protection conditions or the application still has deficiencies in respect of some industrial designs (missing photographs/drawings so that the set of photographs/drawings does not fully disclose the design features of the industrial design, or the international registration does not meet Vietnam's declarations, or there is information to be verified, etc.), before the end of the 06-month period stated in Clause 1 of this Article, the state management agency for industrial property rights carries out the following procedures:

a) Issues a notice of refusal, in the International Bureau's form, for the industrial designs that do not meet the protection conditions or still have deficiencies, clearly stating the content and reasons for refusal, and sends that notice to the International Bureau;

b) Issues a decision accepting protection for the industrial designs that meet the protection conditions and have no deficiencies, records it in the National Register of Industrial Property (Part on Internationally Registered Industrial Designs), and sends the International Bureau a Statement of acceptance of protection for the internationally registered industrial designs in the International Bureau's form, clearly indicating the industrial designs accepted for protection;

c) Publishes the decision in the Industrial Property Gazette within 02 months from the date of the decision.

5. Within 03 months from the date the state management agency for industrial property rights issues a notice of refusal under Clauses 3 and 4 of this Article, the applicant has the right to remedy the deficiencies or object to the refusal of the state management agency for industrial property rights. The remedying of deficiencies or objection to the refusal stated in the notice is carried out under the same procedure as for an industrial design application filed under the national procedure, including the provisions on how to file the application.

Where a Hague application is subject to an intended refusal for failing to meet the requirement of unity of the application under Article 101 of the Law on Intellectual Property, the applicant may remedy the above deficiency by requesting that one or some industrial designs in the above international registration be divided into one or more new applications. The state management agency for industrial property rights carries out the division of the application and issues decisions and notices for the new application independently of the original application.

6. Where the applicant satisfactorily remedies the deficiencies and/or has well-founded objections within the 03-month period specified in Clause 5 of this Article, the state management agency for industrial property rights carries out the following procedures:

a) Issues a decision accepting protection of the internationally registered industrial designs that meet the protection conditions, records it in the National Register of Industrial Property (Part on Internationally Registered Industrial Designs), and sends the International Bureau a statement of acceptance of protection of the internationally registered industrial design after refusal in the International Bureau's form, clearly indicating the industrial designs accepted for protection;

b) Publishes the decision in the Industrial Property Gazette within 02 months from the date of the decision.

7. Where, at the end of the 03-month period stated in Clause 5 of this Article, the applicant has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded in respect of the industrial designs subject to the notice of refusal, the state management agency for industrial property rights shall issue a decision refusing protection of the internationally registered industrial designs concerned.

8. Where, at the end of 03 months from the date the International Bureau notifies a Hague application designating Vietnam, the applicant has not submitted documents proving the priority right, or has submitted documents proving the priority right that are not accepted by the state management agency for industrial property rights, the application is deemed not to claim priority.

9. Procedures for complaints and settlement of complaints against the decisions stated in Clauses 2, 3, 4, 6 and 7 of this Article are carried out as for an industrial design application filed under the national procedure. Where, after the result of settling the complaint, some or all industrial designs refused in the refusal decisions are accepted for protection, the state management agency for industrial property rights shall send the International Bureau a statement of acceptance of protection after refusal in the International Bureau's form, clearly indicating the industrial designs accepted for protection.

10. Where a third party gives opinions on a Hague application designating Vietnam before the date of the decision accepting protection, the third party's opinions are regarded as a source of reference information for processing the Hague application designating Vietnam.

Section 4. MADRID APPLICATIONS AND THEIR PROCESSING

Article 25. Madrid applications

1. Madrid applications include Madrid applications of Vietnamese origin and Madrid applications designating Vietnam.

2. For a Madrid application of Vietnamese origin, the applicant must file through the state management agency for industrial property rights.

3. A Madrid application of Vietnamese origin comprises the following documents:

a) The declaration requesting international registration of a mark of Vietnamese origin, made using Form No. 01 in Vietnamese in Appendix II of this Decree;

b) 02 MM2 declarations in the International Bureau's form in English or French;

c) 02 samples of the mark exactly as the mark in the application filed in Vietnam (basic application) or the mark registration certificate (basic registration);

d) 02 MM18 declarations in English (if the application designates the United States);

dd) A power of attorney in Vietnamese (where the application is filed through a representative);

e) A document proving payment of the fee for carrying out procedures for international registration of a mark of Vietnamese origin;

g) Other relevant documents (if necessary).

4. A Madrid application of Vietnamese origin must meet the prescribed formal and content requirements. The applicant must fill in the information in the declaration fully, accurately and as prescribed, consistent with the information stated in the basic application or basic registration.

Article 26. Processing Madrid applications of Vietnamese origin and related requests

1. After receiving a Madrid application of Vietnamese origin, the state management agency for industrial property rights is responsible for examining it to determine whether it meets the requirements in Clauses 3 and 4, Article 25 of this Decree, and for carrying out the following procedures:

a) Where the application has deficiencies, the state management agency for industrial property rights shall notify the applicant to remedy them. Where the applicant does not remedy the deficiencies within 03 months from the date of the notice of the state management agency for industrial property rights, the application is deemed withdrawn;

b) Where the application has no deficiencies, or has deficiencies but the applicant has satisfactorily remedied them, the state management agency for industrial property rights shall issue a notice of the fees and charges that the applicant must pay directly to the International Bureau, sign to certify the application and forward it to the International Bureau within 15 days from the date of the notice of fees and charges;

c) The date on which the state management agency for industrial property rights receives a Madrid application of Vietnamese origin is regarded as the international registration date of that application if the International Bureau receives the application within 02 months from the date on the receipt stamp of the state management agency for industrial property rights. Where the application is not completed for sending to the International Bureau within that time limit, the date the International Bureau receives the application is regarded as the international registration date.

2. After a Madrid application of Vietnamese origin has been filed with the International Bureau, the state management agency for industrial property rights shall notify the applicant so that the applicant is aware, and shall continue to handle (coordinating with the applicant where necessary) notices and requests from the International Bureau or other matters relating to the application (if any).

3. Requests made after a Madrid application of Vietnamese origin has been assigned an international registration number, such as subsequent designation (extension of territorial protection), amendment of the name or address of the owner of the international registration, limitation of the list of goods and services, renewal of the international registration, appointment of a representative, change of representative, recording of assignment of the international registration, etc., may be made directly with the International Bureau or through the state management agency for industrial property rights. Where filed through the state management agency for industrial property rights, the applicant must submit the following documents:

a) The request declaration made using Form No. 02 in Vietnamese in Appendix II of this Decree;

b) 02 corresponding declarations in the International Bureau's form;

c) A power of attorney in Vietnamese (where the request is filed through a representative);

d) A document proving payment of the fee for examining amendment, assignment, renewal, territorial extension, limitation of the list of goods and services, termination or cancellation of validity of a mark internationally registered of Vietnamese origin, etc.;

dd) Other relevant documents (if necessary).

4. After receiving the requests specified in Clause 3 of this Article, the state management agency for industrial property rights carries out the following procedures:

a) Where the request dossier has deficiencies, the state management agency for industrial property rights shall notify the applicant to remedy them. Where the applicant does not remedy the deficiencies within 03 months from the date of the notice of the state management agency for industrial property rights, the request is deemed withdrawn.

b) Where the request dossier has no deficiencies, or has deficiencies but the applicant has satisfactorily remedied them, the state management agency for industrial property rights shall issue a notice of fees for the applicant to pay directly to the International Bureau, sign to certify the request and forward it to the International Bureau within 10 days from the date of the notice of fees.

5. Where a request for renewal of an international registration is filed through the state management agency for industrial property rights, the applicant must file it no earlier than 06 months and no later than 01 month before the date that international registration expires. If renewal of the international registration is requested during the grace period, the request dossier must be filed with the state management agency for industrial property rights no later than 01 month before the end of the grace period.

Article 27. Processing Madrid applications designating Vietnam

1. After receiving a notice from the International Bureau on a Madrid application designating Vietnam, the state management agency for industrial property rights conducts substantive examination of the application as for a mark application filed under the national procedure, except in the cases specified in Clauses 3 and 10 of this Article. Within 12 months from the date the International Bureau issues its notice, the state management agency for industrial property rights shall conclude on the protectability of the mark.

2. For a mark meeting the protection conditions under Vietnamese law, the state management agency for industrial property rights carries out the following procedures:

a) Before the end of the 12-month period stated in Clause 1 of this Article, the state management agency for industrial property rights issues a decision accepting protection of the internationally registered mark in Vietnam, records it in the National Register of Industrial Property (Part on Internationally Registered Marks), and sends the International Bureau a statement of protection;

b) Publishes the decision in the Industrial Property Gazette within 02 months from the date of the decision.

The scope (volume) of protection is determined according to the content requested in the international registration of the mark as recorded by the International Bureau and accepted by the state management agency for industrial property rights.

3. For a mark for which part or all of the goods and services do not meet the protection conditions, or a mark meeting the protection conditions but whose international registration still has deficiencies (missing regulation on use of a collective mark or certification mark, missing photographs or drawings showing the perspective view of a three-dimensional mark, etc.), before the end of the 12-month period stated in Clause 1 of this Article, the state management agency for industrial property rights issues a notice of provisional refusal, clearly stating the content of and reasons for the intended refusal, and sends that notice to the International Bureau.

4. Within 03 months from the date the state management agency for industrial property rights sends the notice of provisional refusal for part or all of the goods and services, the applicant has the right to remedy the deficiencies or object to the intended refusal of the state management agency for industrial property rights.

Remedying deficiencies or objecting to the intended refusal is carried out under the same procedure as for a mark application filed under the national procedure, including the provisions on how to file the application.

5. Where the state management agency for industrial property rights intends to refuse part or all of the list of goods and services (stated in the notice of provisional refusal), if within the 03-month period stated in Clause 4 of this Article the applicant satisfactorily remedies the deficiencies and/or has well-founded objections to the intended refusal of that part or all of the goods and services, the state management agency for industrial property rights carries out the following procedures:

a) Issues a decision accepting protection of the internationally registered mark in Vietnam with a scope (volume) of protection corresponding to the goods and services meeting the protection conditions; records it in the National Register of Industrial Property (Part on Internationally Registered Marks); and sends the International Bureau a statement of protection after the notice of provisional refusal;

b) Publishes the decision in the Industrial Property Gazette within 02 months from the date of the decision.

6. Where the state management agency for industrial property rights intends to refuse part of the list of goods and services (stated in the notice of provisional refusal), if at the end of the 03-month period stated in Clause 4 of this Article the applicant has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded against that intended refusal, the state management agency for industrial property rights applies, mutatis mutandis, the procedures prescribed in Clause 5 of this Article solely to the goods and services meeting the protection conditions (goods and services not stated in the notice of provisional refusal).

7. Where the state management agency for industrial property rights intends to refuse the entire list of goods and services (stated in the notice of provisional refusal), if at the end of the 03-month period stated in Clause 4 of this Article the applicant has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded against the intended refusal of the entire list of goods and services, the state management agency for industrial property rights shall issue a decision refusing protection of the internationally registered mark in Vietnam and send the International Bureau a notice confirming total refusal.

8. Procedures for complaints and settlement of complaints against the decisions stated at Point a, Clause 2 and Clauses 5, 6 and 7 of this Article are carried out as for a mark application filed under the national procedure if there are grounds to believe that the decision was issued inconsistently with legal provisions on content and order of issuance. The result of settling the complaint is notified by the state management agency for industrial property rights to the applicant. Where, after the result of settling the complaint, part or all of the list of goods and services refused in the refusal decisions is accepted for protection, or there is a change in excluded elements (not protected separately), the state management agency for industrial property rights shall send the International Bureau the subsequent decision affecting the protection of the mark in the International Bureau's form on the corresponding contents.

9. From the date an international mark registration is accepted for protection in Vietnam, at the request of the mark owner, the state management agency for industrial property rights shall issue a certificate of protection in Vietnam of the internationally registered mark, provided that the requester pays the prescribed fees and charges.

10. From the date a Madrid application is published in the Gazette by the International Bureau until before the date of the decision accepting protection, or until the end of 12 months from the date the International Bureau notifies the application designating Vietnam, whichever is earlier, if a third party gives opinions on the Madrid application designating Vietnam, those opinions are regarded as a source of reference information in processing the application.

Article 28. Conversion of an international mark registration into an application filed under the national procedure

1. Where the international registration of a mark in Vietnam of a mark owner that is an individual or organisation of a member of the Madrid Protocol ceases to be valid under Article 6 of the Madrid Protocol, that person has the right to file a conversion application with the state management agency for industrial property rights to register protection for the same mark for part or all of the goods and services in the list recorded in the international mark registration but which ceased to be valid under Article 9quinquies of the Madrid Protocol. A converted mark application is accepted as valid if the following conditions are met:

a) The application is filed within 03 months from the date the International Register records that the corresponding international registration has ceased to be valid;

b) The international registration has never been the subject of total refusal, termination or cancellation in Vietnam;

c) The application is made using Form No. 03 in Appendix II of this Decree (in which the list of goods and services in Vietnamese in the conversion application must be less than or equal to the list of goods and services that ceased to be valid in the corresponding international registration);

d) The application meets all other formal requirements for mark applications under Vietnamese law;

dd) The applicant pays in full the prescribed fees and charges as for a mark application filed under the national procedure, except in the case prescribed at Point b, Clause 2 of this Article.

The converted mark application is recorded with a filing date being the international registration date or the date of subsequent designation (in the case of subsequent designation of Vietnam). Where the international registration enjoys a priority right under an international treaty, the converted mark application is recorded with the corresponding priority right, unless there are grounds for rejecting it.

2. The state management agency for industrial property rights examines the converted mark application under the conversion conditions stated in Clause 1 of this Article and according to the following principles:

a) For formal elements already accepted by the International Bureau in the corresponding international registration, the state management agency for industrial property rights does not re-examine them, except where the application has deficiencies (missing regulation on use of a collective mark or certification mark, missing photographs or drawings showing the perspective view of a three-dimensional mark, etc.). The state management agency for industrial property rights shall issue a decision refusing to accept the application where it does not meet the conditions prescribed in Clause 1 of this Article.

b) For a converted mark application from an international registration already accepted for protection in Vietnam, the state management agency for industrial property rights does not re-examine the substance. Where the application meets the conversion conditions prescribed in Clause 1 of this Article, the state management agency for industrial property rights carries out the procedures for notifying the intention to grant a protection title, deciding to grant the protection title, recording in the National Register of Industrial Property, and publishing the decision in the Industrial Property Gazette, as for an application filed under the national procedure.

c) For a valid converted mark application not falling under Point b of this Clause, the state management agency for industrial property rights carries out the procedures of accepting the application as valid, publishing the application, substantive examination and subsequent procedures, as for a mark application filed under the national procedure.

Section 5. PROTECTION TITLES

Article 29. Amending information on protection titles and changing information in the National Register of Industrial Property

1. A protection title records the information prescribed in Clause 1, Article 92 of the Law on Intellectual Property and in the form prescribed in Appendix II of this Decree. A protection title is issued in electronic form and in paper form (where the applicant requests a paper copy). The holder of a protection title, and an organisation or individual permitted by the State to exercise the right to register a geographical indication, has the right to request the state management agency for industrial property rights to record changes to information on the protection title in the following cases:

a) A change in the name or address of the holder of the protection title; the organisation managing the geographical indication; the name or nationality of the author of the invention, industrial design or layout design;

b) A change of holder of the protection title (transfer of ownership due to inheritance, succession, merger, division, split, consolidation, joint venture, association, establishment of a new legal entity by the same owner, conversion of business form, or by decision of a Court or another competent authority);

c) Amendment of the description of the specific characteristics of the product bearing the geographical indication, the geographical area corresponding to the geographical indication, the regulation on use of the collective mark, or the regulation on use of the certification mark.

The person requesting recording of changes to information on the protection title must pay the fee for examining the request for amendment of the protection title, the registration fee and the fee for publishing the decision recording the amendment of the protection title.

2. The holder of a protection title, and an organisation or individual permitted by the State to exercise the right to register a geographical indication, has the right to request the state management agency for industrial property rights to record a change of the industrial property representative organisation of the holder of the protection title in the National Register of Industrial Property. The person requesting recording of a change of industrial property representative organisation must submit the power of attorney of the holder of the protection title and pay the prescribed fee for examining the recording request, registration fee and fee for publishing the decision recording the change of industrial property representation information.

3. The holder of a protection title has the right to request the state management agency for industrial property rights to narrow the scope of protection under Clause 3, Article 97 of the Law on Intellectual Property in the following cases:

a) Requesting removal of one or some goods or services, or groups of goods or services, from the list of goods and services stated in the Mark Registration Certificate, or removal of minor details that are excluded elements (not protected separately) without changing the distinctiveness of the mark stated in the Mark Registration Certificate;

b) Requesting removal of one or some independent or dependent points within the scope (claims) of protection stated in the Patent or Utility Solution Patent;

c) Requesting removal of one or some variants of an industrial design, or one or some products in a set of products, in the Industrial Design Patent.

The person requesting narrowing of the scope of protection must pay the fee for examining the request to narrow the scope of protection, the registration fee and the fee for publishing the decision amending the protection title.

4. Depending on the content to be amended as specified in Clauses 1, 2 and 3 of this Article, the dossier requesting amendment comprises 01 set of the following documents:

a) The request declaration for amendment, made using Form No. 06 in Appendix II of this Decree, clearly stating the request to record the change. One amendment request declaration may request amendment of multiple protection titles if they have the same amendment content, provided that the requester pays the prescribed fee for each protection title;

b) The original protection title, where the protection title was issued in paper form;

c) A document confirming the change of name or address (original or certified copy); a decision on change of name or address; a business registration licence recording the change of name or address; or other legal documents proving the change of name or address (original or certified copies), if the amendment requested concerns name or address;

d) A document proving the transfer of ownership under Point b, Clause 1 of this Article (a document proving inheritance, succession, merger, division, split, consolidation, joint venture, association, establishment of a new legal entity by the same owner, conversion of business form, or a decision of a Court or another competent authority), if a change of holder of the protection title is requested;

dd) A document explaining in detail the amended content;

e) 05 sets of amended photographs or drawings of the industrial design (if amendment of an industrial design is requested); 02 amended descriptions of the specific characteristics of the product bearing the geographical indication and maps of the geographical area corresponding to the geographical indication (if amendment of a geographical indication is requested); 02 amended regulations on use of the collective mark and 02 amended regulations on use of the certification mark (if amendment of a collective mark or certification mark is requested); 05 mark samples (if amendment of the mark sample is requested under Point a, Clause 3 of this Article);

g) A power of attorney (where the request is filed through a representative);

h) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

5. A request to amend a protection title or record a change of industrial property representative organisation in the National Register of Industrial Property is processed as follows:

a) Within 02 months from the date of receiving the request, the state management agency for industrial property rights must consider the request to amend the protection title under Points a and b, Clause 1 of this Article. If the request is found valid, the state management agency for industrial property rights shall issue a decision amending the protection title, record it on the protection title, register it, and publish the decision amending the protection title in the Industrial Property Gazette within 60 days from the date of the decision. Where the request to amend the protection title has deficiencies or is invalid, the state management agency for industrial property rights shall issue a notice of intention to refuse the request for amendment, clearly stating the reasons and fixing a period of 02 months from the date of the notice for the requester to remedy the deficiencies or object. If at the end of the fixed period the requester has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the state management agency for industrial property rights shall issue a decision refusing the request to amend the protection title;

b) For requests to amend a protection title under Point c, Clause 1 and Clause 3 of this Article, the procedure for re-examining the corresponding application is carried out under Article 114 of the Law on Intellectual Property and other relevant legal provisions. The re-examination period is not counted in the time limit for processing the request to amend the protection title;

c) Within 02 months from the date of receiving the request, the state management agency for industrial property rights considers the request to record a change of industrial property representative organisation in the National Register of Industrial Property under Clause 2 of this Article. If the request dossier is found valid, the state management agency for industrial property rights shall issue a decision recording the change of industrial property representative organisation in the National Register of Industrial Property, register it and publish it in the Industrial Property Gazette within 60 days from the date of the decision. Where the request to record a change of industrial property representative organisation has deficiencies or is invalid, the state management agency for industrial property rights shall issue a notice of intention to refuse the recording request, clearly stating the reasons and fixing a period of 02 months from the date of the notice for the requester to remedy the deficiencies or object. If at the end of the fixed period the requester has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the state management agency for industrial property rights shall issue a decision refusing to record the change of industrial property representative organisation.

6. Where deficiencies are discovered in a protection title, the state management agency for industrial property rights, on its own initiative or at the request of the person discovering the deficiencies, shall revoke the defective protection title and reissue the protection title with the amended information. The holder of the protection title must pay the fee for examining the request to amend the protection title under Clause 1, Article 97 of the Law on Intellectual Property and the fee for publishing the amendment information, where a defective protection title has been published and the deficiency is attributable to the holder of the protection title. If the deficiency is attributable to the state management agency for industrial property rights, the holder of the protection title does not have to pay that fee.

7. The state management agency for industrial property rights issues duplicates of protection titles and reissues protection titles/duplicates in the following cases:

a) Where industrial property rights are jointly owned, the protection title is issued only to the first person in the list of joint applicants. The other co-owners may request the state management agency for industrial property rights to issue a duplicate of the protection title, provided that they pay the duplicate issuance fee;

b) Where a protection title/duplicate is lost or damaged, torn, soiled or faded to the point of being unusable, or is detached so that the seal cannot be retained, the owner of the industrial property rights who was issued the protection title/duplicate may request the state management agency for industrial property rights to reissue the protection title/duplicate, provided that they pay the corresponding fee;

c) A request for issuance of a duplicate protection title, or reissuance of a protection title/duplicate, must be made in writing, except where it was already stated in the registration declaration for the industrial property subject matter. The request dossier comprises 01 set of the following documents:

c1) The request declaration for issuance of a duplicate protection title or reissuance of a protection title/duplicate, made using Form No. 09 in Appendix II of this Decree;

c2) 02 mark samples, 02 sets of photographs or 02 sets of drawings of the industrial design identical to the mark sample, set of photographs or drawings of the industrial design in the original protection title;

c3) A power of attorney (where the request is filed through a representative);

c4) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights);

d) Processing a request for issuance of a duplicate protection title or reissuance of a protection title/duplicate:

d1) Within 01 month from the date of receiving the request, the state management agency for industrial property rights must consider the request for issuance of a duplicate protection title or reissuance of a protection title/duplicate. Where the request meets the provisions at Points a, b and c of this Clause, the state management agency for industrial property rights shall issue a decision issuing the duplicate protection title or a decision reissuing the protection title/duplicate and record it in the registration entry of the corresponding protection title in the National Register of Industrial Property;

d2) The content of a duplicate protection title fully reflects the information of the corresponding protection title and must bear the notation “Duplicate”. The content of a reissued protection title/duplicate fully reflects the information of the originally issued protection title/duplicate and must bear the notation “Reissued copy”. The state management agency for industrial property rights shall publish the reissuance of the protection title/duplicate in the Industrial Property Gazette within 60 days from the date of the decision;

d3) Where a request for issuance of a duplicate protection title or reissuance of a protection title/duplicate does not meet the provisions at Point c of this Clause, the state management agency for industrial property rights shall issue a notice and fix a period of 02 months from the date of the notice for the requester to remedy the deficiencies or object. If at the end of that period the requester has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the state management agency for industrial property rights shall issue a decision refusing to issue the duplicate protection title or refusing to reissue the protection title/duplicate, clearly stating the reasons.

8. The procedure for issuing a duplicate/reissuing the Certificate of Registration of a Contract on Transfer of the Right to Use Industrial Property Subject Matter applies mutatis mutandis to the procedure in Clause 7 of this Article.

Article 30. Maintaining the validity of protection titles for inventions/utility solutions

1. The dossier requesting maintenance of the validity of a protection title for an invention/utility solution comprises the following documents:

a) A declaration made using Form No. 07 in Appendix II of this Decree;

b) A power of attorney (where the request is filed through a representative);

c) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

2. The request to maintain the validity of the protection title, the fee for examining the request to maintain validity, the validity maintenance fee, the protection title use fee, the registration fee and the publication fee must be submitted to the state management agency for industrial property rights no later than 06 months before the end of the validity term. The request may be submitted after the above time limit, but not more than 06 months after the end of the preceding validity term, and the holder of the protection title must pay a fee for each month of delay in accordance with the law on fees and charges.

3. Within 01 month from the date of receiving the dossier requesting maintenance of validity of the protection title and the fees and charges specified in Clauses 1 and 2 of this Article, the state management agency for industrial property rights considers the request dossier and carries out the following procedures:

a) Where the request dossier is valid, issues a notice of maintenance of validity of the protection title, records it in the National Register of Industrial Property and publishes it in the Industrial Property Gazette within 60 days from the date of the notice;

b) Where the dossier has deficiencies or is invalid, issues a notice of intention to refuse maintenance, clearly stating the reasons and fixing a period of 02 months from the date of the notice for the requester to remedy the deficiencies or object. If at the end of the fixed period the requester has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the state management agency for industrial property rights shall issue a decision refusing to maintain the validity of the protection title.

Article 31. Renewal of Industrial Design Patents and Mark Registration Certificates

1. An Industrial Design Patent may be renewed at most 02 consecutive times, each time for 05 years. Where a protected industrial design has multiple variants, the Patent may be renewed for all or some variants, which must include the basic variant. A Mark Registration Certificate may be renewed an unlimited number of consecutive times, each time for 10 years, for all or part of the list of goods and services.

2. The dossier requesting renewal of an Industrial Design Patent or Mark Registration Certificate comprises the following documents:

a) The renewal request declaration, made using Form No. 07 in Appendix II of this Decree;

b) The original Industrial Design Patent or Mark Registration Certificate (where the protection title was issued in paper form and recording of the renewal on the protection title is requested);

c) A power of attorney (where the request is filed through a representative);

d) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

One dossier may request renewal of validity for one or more protection titles if they are of the same type of subject matter and have the same owner.

3. The renewal request dossier and the fee for examining the renewal request, the fee for renewing validity of the protection title, the protection title use fee, the registration fee and the fee for publishing the decision renewing validity of the protection title must be submitted by the holder of the Industrial Design Patent or Mark Registration Certificate to the state management agency for industrial property rights within 06 months up to the date the Industrial Design Patent or Mark Registration Certificate expires. The renewal request may be submitted after the above time limit but not more than 06 months after the protection title expires, and the holder of the protection title must pay a fee for each month of delay in accordance with the law on fees and charges.

4. Within 01 month from the date of receiving the renewal request dossier, the state management agency for industrial property rights considers the dossier and carries out the following procedures:

a) Where the dossier is valid, issues a decision renewing validity of the protection title, records it on the protection title (if requested), registers it, and publishes the decision renewing validity of the Industrial Design Patent or Mark Registration Certificate in the Industrial Property Gazette within 60 days from the date of the decision;

b) Issues a notice of intention to refuse renewal, clearly stating the reasons and fixing a period of 02 months from the date of the notice for the requester to remedy the deficiencies or object, if in one of the following cases:

b1) The renewal request dossier is invalid or was not filed in accordance with the prescribed procedure;

b2) The person requesting renewal is not the holder of the corresponding Industrial Design Patent or Mark Registration Certificate.

If at the end of the fixed period the requester has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the state management agency for industrial property rights shall issue a decision refusing to renew the validity of the Industrial Design Patent or Mark Registration Certificate.

c) After the renewal procedure is completed, where the holder of the Industrial Design Patent or Mark Registration Certificate requests the state management agency for industrial property rights to record the renewal decision on the protection title, the holder must carry out the procedure for amending the protection title and pay the prescribed fees and charges.

Article 32. Termination and invalidation of protection titles

1. An organisation or individual requesting termination or invalidation of a protection title under Clause 4, Article 95 and Clause 4, Article 96 of the Law on Intellectual Property must pay the request fee, the fee for examining the request for termination or invalidation of the protection title, the registration fee and the fee for publishing the decision terminating or invalidating the protection title.

2. The request for termination or invalidation of a protection title must comply with the following:

a) One request may seek termination or invalidation of one or more protection titles if they share the same arguments, provided that the requester pays the prescribed fees and charges for each protection title;

b) The request for termination or invalidation of a protection title comprises 01 set of the following documents:

b1) The declaration requesting termination or invalidation of the protection title, made using Form No. 08 in Appendix II of this Decree;

b2) Evidence (if any);

b3) A power of attorney (where the request is filed through a representative);

b4) A statement explaining the grounds for the request (clearly stating the title number, reasons, legal basis, and the content of the request for termination or invalidation of part or all of the validity of the protection title) and related documents;

b5) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

3. The request for termination or invalidation of a protection title is processed as follows:

a) A request for termination or invalidation of a protection title is processed under Articles 95 and 96 and Clause 3, Article 220 of the Law on Intellectual Property and under this Article. For a request for invalidation of a protection title, the state management agency for industrial property rights re-examines the substance of the corresponding application under Article 114 of the Law on Intellectual Property and relevant legal provisions;

b) Where a third party requests termination or invalidation of a protection title, within 01 month from the date of receiving the request, the state management agency for industrial property rights shall notify the holder of the protection title in writing of the third party's opinions, fixing a period of 02 months from the date of the notice for the holder of the protection title to give opinions. The state management agency for industrial property rights may organise direct exchange of opinions between the third party and the relevant holder of the protection title;

c) On the basis of considering the opinions of the parties, the state management agency for industrial property rights shall issue a decision terminating/invalidating part or all of the validity of the protection title, or a notice refusing to terminate/invalidate part or all of the validity of the protection title, under Clause 5, Article 95 and Clause 5, Article 96 of the Law on Intellectual Property;

The time limit for issuing the decision and notice stated at this Point is 03 months from the end of the 02-month period stated at Point b of this Clause, or from the end of the 03-month period prescribed at Point a, Clause 4 and Point a, Clause 5 of this Article where the holder of the protection title gives no opinion, or from the date of receiving the opinion of the holder of the protection title. This time limit may be extended by up to 03 months if the holder of the protection title gives opinions differing from the requester for termination or invalidation of the protection title.

Where the holder of the protection title declares renunciation of industrial property rights under Clause 3, Article 95 of the Law on Intellectual Property, the above time limit is 15 days from the date of receiving the request.

The time spent on other related procedures necessary to settle the request for termination or invalidation of the protection title is not counted in the above time limit.

d) If the requester, or the organisation or individual specified at Point b of this Clause, disagrees with the content of the decision or notice of the state management agency for industrial property rights on handling the request for termination or invalidation of the protection title stated at Point c of this Clause, they have the right to file a complaint about that decision or notice under the law on complaints relating to industrial property procedures;

dd) The decision terminating or invalidating the protection title is recorded in the National Register of Industrial Property and published in the Industrial Property Gazette within 60 days from the date of the decision.

4. A request for termination or invalidation of the validity of an international mark registration is processed as follows:

a) For a request for termination or invalidation of the validity of an international mark registration under the Madrid Agreement or the Madrid Protocol filed by a third party, the state management agency for industrial property rights shall notify the mark owner of the content of the request through the International Bureau, fixing a period of 03 months from the date of the notice for the mark owner to give opinions;

b) An international mark registration may be terminated or invalidated for part or all of the list of goods and services;

c) Where the state management agency for industrial property rights issues a decision terminating or invalidating the international mark registration for part or all of the list of goods and services and that decision is no longer the subject of a complaint or administrative lawsuit, the state management agency for industrial property rights shall issue a notice of termination or invalidation of the international mark registration in the International Bureau's form, clearly indicating the list of goods and services terminated or invalidated, and send this notice to the International Bureau;

d) Other related provisions on processing requests for termination or invalidation of the validity of mark protection titles on the basis of mark applications filed under the national procedure apply to processing requests for termination or invalidation of the validity of international mark registrations.

5. A request for termination or invalidation of the validity of an international industrial design registration is processed as follows:

a) For a request for termination or invalidation of the validity of an international industrial design registration under the Hague Agreement filed by a third party, the state management agency for industrial property rights shall notify the industrial design owner of the content of the request through the International Bureau, fixing a period of 03 months from the date of the notice for the industrial design owner to give opinions;

b) An international industrial design registration may be invalidated for some or all industrial designs in that registration;

c) Where the state management agency for industrial property rights issues a decision invalidating the international registration for some or all industrial designs and that decision is no longer the subject of a complaint or administrative lawsuit, the state management agency for industrial property rights shall issue a notice of invalidation of the international industrial design registration in the International Bureau's form, clearly indicating the industrial designs invalidated, and send this notice to the International Bureau;

d) Other related provisions on processing requests for termination or invalidation of the validity of protection titles for industrial designs granted on the basis of industrial design applications filed under the national procedure apply to requests for termination or invalidation of the validity of international industrial design registrations.

Chapter II

SUBJECTS, CONTENT AND LIMITS OF INDUSTRIAL PROPERTY RIGHTS

Article 33. Subjects of industrial property rights

1. Subjects of industrial property rights include organisations and individuals owning the industrial property subject matter specified in Article 121 of the Law on Intellectual Property, or organisations and individuals to whom the owner has transferred industrial property rights.

2. Where a protection title for an invention, industrial design, layout design or mark is granted jointly to multiple organisations and individuals under Clause 2, Article 86, Clause 5, Article 87 and Clause 3, Article 90 of the Law on Intellectual Property, the industrial property rights are jointly owned by those organisations and individuals. The co-owners exercise ownership rights under the civil law.

Article 34. Scope of industrial property rights

1. The scope of industrial property rights in inventions, industrial designs, layout designs, marks and geographical indications is determined according to the scope of protection recorded in the National Register of Industrial Property, the International Register of Marks and the International Register of Industrial Designs, or in the protection title, the certificate of international mark registration, or the decision accepting protection of an internationally registered industrial design.

2. The scope of rights in trade names is determined according to the scope of protection of the trade name, including the trade name, the business field and the business territory in which the trade name is lawfully used by the subject bearing the trade name. The registration of the name of an organisation or individual engaged in business in business procedures is not regarded as use of that name but is merely a condition for the use of that name to be regarded as lawful.

3. The scope of rights in business secrets is determined according to the scope of protection of the business secret, including the set of information constituting the business secret, arranged in an order accurate and complete enough to be exploitable.

4. Subjects of industrial property rights enjoy rights and perform obligations within the scope of protection, under the 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 author's moral rights specified in Clause 2, Article 122 of the Law on Intellectual Property are protected indefinitely.

2. The author's right to receive remuneration specified in Clause 3, Article 122 of the Law on Intellectual Property is protected throughout the term of protection of the invention, industrial design or layout design.

3. Unless otherwise agreed between the owner and the author, payment of remuneration must be made no later than 30 days from the date the owner receives payment for the transfer of the right to use, or no later than 90 days from the end of the financial year if the remuneration paid to the author is calculated under Point a, Clause 1, Article 135 of the Law on Intellectual Property.

Article 36. State management responsibility for signs indicating geographical origin

1. People's Committees of provinces and centrally run cities shall preside over, and coordinate with the Ministry of Agriculture and Rural Development and the Ministry of Industry and Trade in, determining the types of specialty products, product characteristics, and production processes of specialty products bearing geographical indications within the management scope of ministries, sectors and localities, on the basis of local planning.

2. People's Committees of provinces and centrally run cities permit the use of place names and other signs indicating the geographical origin of local specialty products to register collective marks and certification marks; and directly, or by decentralisation or authorisation to People's Committees of districts, urban districts, towns and cities under provinces or centrally run cities, or to specialised agencies under People's Committees of provinces and centrally run cities, file applications to register geographical indications for local specialty products.

3. The Minister of Science and Technology shall guide criteria for determining place names and other signs indicating the geographical origin of products.

Article 37. Exercise of ownership rights in geographical indications

1. For geographical indications of Vietnam, the agencies and organisations having the right to manage geographical indications (hereinafter referred to as geographical indication management organisations) specified in Clause 4, Article 121 of the Law on Intellectual Property include:

a) The People's Committee of the province or centrally run city in which the geographical area corresponding to the geographical indication is located, where the geographical indication belongs to one locality;

b) The People's Committee of a province or centrally run city acting as authorised representative of the other People's Committees of provinces and centrally run cities in which the geographical area corresponding to the geographical indication is located, where the geographical indication belongs to multiple localities;

c) The People's Committee of a district, urban district, town or city under a province or centrally run city, or a specialised agency under the People's Committee of a province or centrally run city, that is delegated or authorised by the People's Committee of the province or centrally run city to manage the geographical indication;

d) An agency or organisation vested with the right to manage the geographical indication by the People's Committee of a province or centrally run city, provided that the agency or organisation represents the interests of all organisations and individuals granted the right to use the geographical indication under Clause 4, Article 121 of the Law on Intellectual Property.

2. An agency or organisation having the right to manage a geographical indication under Point d, Clause 1 of this Article is permitted to exercise the owner's rights in the geographical indication specified in Clause 2, Article 123 and Article 198 of the Law on Intellectual Property.

3. For foreign geographical indications, the owner, the organisation permitted to exercise the owner's rights in the geographical indication, and the geographical indication management organisation are determined under the law of the country of origin of that geographical indication.

Article 38. Exercise of geographical indication management rights by the geographical indication management organisation

1. The geographical indication management organisation specified in Clause 1, Article 37 of this Decree is responsible for:

a) Developing and promulgating a regulation on managing the geographical indication;

b) Managing the geographical indication under the regulation it promulgates;

c) Preparing and publicising a list of organisations and individuals using the geographical indication on the basis of notices from those organisations and individuals. The list of organisations and individuals using the geographical indication must be updated upon any change;

d) Organising measures to manage the use of the geographical indication by organisations and individuals producing products bearing the geographical indication, to ensure that products meet standards of specific characteristics, quality and reputation consistent with the description of the specific characteristics of the product bearing the geographical indication;

dd) Monitoring and taking measures to prevent and prohibit acts infringing rights in the geographical indication; requesting competent agencies to handle them under law;

e) Reporting to the state management agency for industrial property rights on the management of the geographical indication every two years.

2. The regulation on managing the geographical indication under Point a, Clause 1 of this Article must meet the following conditions:

a) The regulation on managing the geographical indication includes the following main contents:

a1) The product bearing the geographical indication: product name and description of the product (specific characteristics, quality, production process, production area, etc.) corresponding to the content of the description of the specific characteristics of the product;

a2) Recording of organisations and individuals using the geographical indication: the dossier requesting recording of organisations and individuals using the geographical indication includes the request for recording, documents proving that the organisation or individual carries out production of the product bearing the geographical indication in the geographical area corresponding to the geographical indication, and other documents if necessary; consideration of the dossier, inspection and assessment of the authenticity of the documents, including compliance with the description of the specific characteristics of the product bearing the geographical indication (if necessary), and recording of the information of the organisation or individual in the list of organisations and individuals using the geographical indication;

a3) The mechanism for inspecting and controlling the use of the geographical indication: the content of inspection and control (geographical origin, specific characteristics and quality of the product, production process, etc.); the inspection and control plan; tools and methods of inspection and control; the agency or organisation carrying out inspection and control, etc.;

a4) Rights and responsibilities of organisations and individuals using the geographical indication: ensuring the maintenance of the specific characteristics, quality and reputation of the product bearing the geographical indication; notifying the geographical indication management organisation for recording in the list of organisations and individuals using the geographical indication before using the geographical indication; reporting to the geographical indication management organisation on the use of the geographical indication annually, etc.;

a5) Rights and responsibilities of the geographical indication management organisation in managing the geographical indication;

a6) Funding for geographical indication management activities;

a7) Measures for handling violations of the Regulation.

b) The regulation on managing the geographical indication must be put to organisations and individuals producing products bearing the geographical indication for opinions before being promulgated.

c) The regulation on managing the geographical indication must not include contents that unreasonably restrict the lawful right to use the geographical indication of organisations and individuals producing products bearing the geographical indication.

Article 39. Confidentiality of agrochemical test data

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

2. Agrochemical test data is kept confidential if it meets the conditions in Clause 1, Article 128 of the Law on Intellectual Property and the applicant requests confidentiality when filing the application for a licence to circulate the agrochemical.

3. The agency competent to license the circulation of agrochemicals keeps the test data stated in Clause 2 of this Article confidential.

Article 40. Use of industrial property subject matter

1. The act of circulating products specified at Point d, Clause 1, Point b, Clause 2 and Point b, Clause 7, Article 124 of the Law on Intellectual Property includes the acts of selling, displaying for sale and transporting products.

2. The use in practice of a mark sample that differs from the protected mark sample by the mark owner or a person permitted by the mark owner is also regarded as use of the mark under Clause 5, Article 124 of the Law on Intellectual Property if the difference is insignificant and does not change the distinctiveness of the mark.

Article 41. Use of inventions in the name of the State

1. The use of an invention in the name of the State for public non-commercial purposes, national defence and security, disease prevention and treatment, nutrition for the people, or to meet other urgent social needs under Clause 1, Article 133 of the Law on Intellectual Property is carried out by ministries and ministerial-level agencies or by other organisations and individuals designated by them, on the basis of issuing a decision on compulsory transfer of the right to use the invention under Point a, Clause 1, Article 145 and the second paragraph of Clause 1, Article 147 of the Law on Intellectual Property. Where imported products, or products manufactured by the licensee of the right to use the invention under a contract, have met the needs of national defence and security, disease prevention and treatment, nutrition for the people or other urgent social needs, the holder of the exclusive right to use the invention is deemed to have performed the obligation to use under Article 136 of the Law on Intellectual Property.

2. The procedure for issuing a decision on compulsory transfer of the right to use an invention in the case of use of the invention in the name of the State complies with Articles 55 and 56 of this Decree.

Article 42. Compensation to patent owners for delays in licensing the circulation of pharmaceuticals

1. Where the procedure for the first registration of a pharmaceutical for circulation is delayed under Article 131a of the Law on Intellectual Property, after the pharmaceutical is licensed for circulation, within 02 months from the applicant's written request made using Form No. 02 in Appendix I of this Decree, the agency competent to license the circulation of pharmaceuticals shall issue a confirmation that the procedure for registering the pharmaceutical for circulation was delayed, clearly stating the length of the delay.

2. Where the holder of a Patent makes a written request using Form No. 03 in Appendix I of this Decree, accompanied by a confirmation document of the agency competent to license the circulation of pharmaceuticals that the procedure for registering for circulation a pharmaceutical manufactured under that Patent was delayed under Clause 1 of this Article, the state management agency for industrial property rights shall notify the holder of the Patent of the compensation scheme and carry out the following procedures:

a) Not collecting the Patent use fee for the period in which the procedure for registering for circulation the pharmaceutical manufactured under that Patent was delayed, in the course of processing the request to maintain validity;

b) Where the Patent use fee for that period has already been paid, deducting the amount paid in the course of processing the request to maintain validity for the next term;

c) Where the holder of the Patent does not continue to maintain validity or the Patent expires, refunding the use fee to the holder of the Patent within 03 months from the date of receiving a complete request dossier as prescribed.

3. For a pharmaceutical manufactured under multiple different Patents, exemption from the use fee applies to all the relevant Patents.

Chapter III

INVENTIONS, INDUSTRIAL DESIGNS AND LAYOUT DESIGNS RESULTING FROM SCIENCE AND TECHNOLOGY TASKS USING STATE BUDGET FUNDS

Article 43. Right to register inventions, industrial designs and layout designs resulting from science and technology tasks using state budget funds

1. Automatic assignment of the right to register inventions, industrial designs and layout designs resulting from science and technology tasks using state budget funds under Clauses 1 and 2, Article 86a of the Law on Intellectual Property means that the lead organisation has the right to register inventions, industrial designs and layout designs when these subject matters are created in the course of performing the science and technology task, without going through the procedure of assignment of the right to register by the representative of the state owner.

2. The right to register inventions, industrial designs and layout designs resulting from science and technology tasks funded from multiple sources, including a portion of state budget funds, under Clause 2 and Point b, Clause 3, Article 86a of the Law on Intellectual Property is determined as follows:

a) The lead organisation of the task has the portion of the right to register inventions, industrial designs and layout designs corresponding to the portion of state budget invested. Where an invention, industrial design or layout design results from a science and technology task in the field of national defence and security, the portion of the right to register belongs to the State and is registered by the representative of the state owner under Clause 3 of this Article;

b) Other organisations and individuals have the portion of the right to register inventions, industrial designs and layout designs corresponding to their capital contribution.

3. The representative of the state owner specified at Point c, Clause 3, Article 86a of the Law on Intellectual Property is:

a) The Minister of Science and Technology, for national-level science and technology tasks, except national-level science and technology tasks specified at Point b of this Clause;

b) Ministers, heads of ministerial-level agencies, agencies attached to the Government and other central agencies, and Chairpersons of provincial People's Committees, for: national-level science and technology tasks assigned for their management; and science and technology tasks they approve;

c) The head of the agency or organisation, for science and technology tasks he or she approves.

Article 44. Obligation to notify and register inventions, industrial designs and layout designs resulting from science and technology tasks using state budget funds

1. The date on which an invention, industrial design or layout design is created under Clause 1, Article 136a of the Law on Intellectual Property is the date on which the lead organisation receives the author's written report or becomes aware that the invention, industrial design or layout design was created from the science and technology task, whichever is earlier.

2. Within 01 month from the date the invention, industrial design or layout design is created under Clause 1 of this Article, the lead organisation shall notify the representative of the state owner in writing, clearly stating information on the invention, industrial design or layout design, the need for registration, and the countries in which it intends to file applications (if any). Where the procedure for registering to establish rights in these subject matters will not be carried out, the lead organisation is responsible for notifying the representative of the state owner in writing within 10 days before the end of the time limit specified in Clause 2, Article 136a of the Law on Intellectual Property.

3. The author of the invention, industrial design or layout design and the lead organisation are obliged to keep information on the invention, industrial design or layout design confidential until the application for the invention, industrial design or layout design is filed or the representative of the state owner publicly discloses the content of the invention, industrial design or layout design under Clause 2, Article 133a of the Law on Intellectual Property.

4. An application for an invention, industrial design or layout design resulting from a science and technology task using state budget funds may only be assigned to an organisation established under Vietnamese law or an individual who is a Vietnamese citizen permanently residing in Vietnam. The organisation or individual receiving the assignment of the application must perform the corresponding obligations of the lead organisation under the Law on Intellectual Property and this Decree.

5. In the course of carrying out procedures to establish industrial property rights under the law on intellectual property for an invention, industrial design or layout design resulting from a science and technology task using state budget funds, the lead organisation has the following obligations:

a) To notify the science and technology task management agency in writing of the result of processing the application for the invention, industrial design or layout design within 07 working days from the date the state management agency for industrial property rights issues the decision or notice on the result of processing that application;

b) Within 07 working days from the end of the time limit prescribed in Clauses 1 and 2, Article 113 of the Law on Intellectual Property, to notify the science and technology task management agency in writing that the invention application is deemed withdrawn under Clause 3, Article 113 of the Law on Intellectual Property, stating the reasons.

c) To notify the science and technology task management agency to carry out the procedure for assigning the right to register the invention, industrial design or layout design resulting from a science and technology task using state budget funds to other organisations and individuals under Article 45 of this Decree in the following cases:

c1) The application for the invention, industrial design or layout design is refused acceptance as valid, except where the application is refused acceptance as valid because the subject matter stated in the application is not protectable as an invention, industrial design or layout design under Articles 59, 64 and 69 of the Law on Intellectual Property;

c2) The application for the invention, industrial design or layout design is withdrawn before the application is published as prescribed.

Article 45. Assigning the right to register inventions, industrial designs and layout designs resulting from science and technology tasks using state budget funds to other organisations and individuals

1. The representative of the state owner assigns the science and technology task management agency to publicly announce on its website or web portal, so that organisations and individuals in need may submit dossiers requesting assignment of the right to register inventions, industrial designs and layout designs in the cases specified in Clause 1, Article 133a of the Law on Intellectual Property and the cases stated at Point c, Clause 5, Article 44 of this Decree.

2. The information publicly disclosed under Clause 1 of this Article includes the name and technical field of the invention, industrial design or layout design resulting from the science and technology task; the method of assignment; and how to access the information.

3. An organisation or individual in need as stated in Clause 1 of this Article may access detailed information on the invention, industrial design or layout design resulting from the science and technology task as specified in Clause 2 of this Article if it submits a written request to the science and technology task management agency and undertakes to keep the information confidential and not use it for commercial purposes.

4. An organisation or individual in need under Clause 1 of this Article shall submit a request for assignment of the right to register the invention, industrial design or layout design, made using Form No. 01 in Appendix III, to the science and technology task management agency.

5. The science and technology task management agency is responsible for processing the request for assignment of the right to register according to the following provisions:

a) Checking the validity of the request. Where the request is invalid, within 05 working days at the latest from the date of receiving the request, the science and technology task management agency must notify the organisation or individual in writing and fix a period of 10 days from the date of the notice for the organisation or individual to remedy the deficiencies;

b) Within 07 working days from the end of the public announcement period under Clause 1, Article 133a of the Law on Intellectual Property, the science and technology task management agency shall report to the representative of the state owner for issuing a decision assigning the right to register the invention, industrial design or layout design to an organisation or individual meeting the conditions for assignment;

c) Where multiple organisations and individuals request assignment of the right to register the invention, industrial design or layout design and all have valid requests, the representative of the state owner shall notify the intention to assign to those organisations and individuals to jointly exercise the right to register, jointly named as applicants for the application for the invention, industrial design or layout design, and fix a period of 07 working days from the date of the notice for the organisations and individuals to give opinions on the content of the notice. If at the end of that period an organisation or individual that submitted a request for assignment responds in writing that it does not agree to be named jointly as applicant, or does not respond in writing, then within 05 working days from the end of that period the representative of the state owner shall issue a decision assigning the right to register the invention, industrial design or layout design to the organisation or individual that has agreed in writing to the notice of intention to assign.

6. An organisation or individual receiving the assignment of the right to register is obliged to file an application to establish rights in the invention, industrial design or layout design within 06 months from the date of receiving the assignment decision under Clause 5 of this Article and to perform the other corresponding obligations of the lead organisation under the Law on Intellectual Property and this Decree.

7. At the end of 90 days from the date of posting the announcement under Clause 1 of this Article, if the right to register cannot be assigned to an organisation or individual in need, the representative of the state owner shall assign the science and technology task management agency to publicly disclose on its website or web portal the content of the invention, industrial design or layout design resulting from the science and technology task, for organisations and individuals to exploit and use under law.

Article 46. Exercise of industrial property rights and protective measures for inventions, industrial designs and layout designs resulting from science and technology tasks using state budget funds

1. To ensure the exercise of industrial property rights and effective exploitation of inventions, industrial designs and layout designs resulting from science and technology tasks using state budget funds, the lead organisation granted a protection title for these subject matters is responsible for:

a) Applying appropriate measures to protect industrial property rights in those subject matters, including carrying out the procedures necessary to maintain and renew the validity of protection titles for those subject matters;

b) Identifying and implementing appropriate commercial exploitation measures.

2. Annually, the lead organisation granted a protection title for an invention, industrial design or layout design resulting from a science and technology task using state budget funds is obliged to submit a report to the science and technology task management agency with the following contents:

a) The status of commercial exploitation and an assessment of the effectiveness of exploiting the invention, industrial design or layout design;

b) The total amount of money and profit the lead organisation has received from use, transfer of the right to use, assignment of rights, and capital contribution by means of the invention, industrial design or layout design, and the payment of remuneration to authors and distribution of profit, accompanied by the independently audited financial statements of the lead organisation;

c) The right-protection measures being implemented.

Article 47. Procedure for permitting other organisations and individuals to use inventions, industrial designs and layout designs resulting from science and technology tasks using state budget funds

1. The reasonable period under Point a, Clause 3, Article 133a of the Law on Intellectual Property is determined as the end of 04 years from the filing date of the invention application or the end of 03 years from the date of grant of the Patent; or the end of 03 years from the filing date of the industrial design or layout design application or the end of 02 years from the date of grant of the Industrial Design Patent or the Certificate of Registration of the Layout Design of Semiconductor Integrated Circuits, whichever ends later.

2. The agency competent to approve science and technology tasks under the law on science and technology shall, on its own initiative or at the request of other organisations and individuals, issue a decision permitting the use of an invention, industrial design or layout design resulting from a science and technology task using state budget funds when the cases specified in Clause 3, Article 133a of the Law on Intellectual Property occur, after consulting the Ministry of Science and Technology.

3. The decision under Clause 2 of this Article must clearly state the scope and conditions for other organisations and individuals to use, including:

a) The right to use the invention, industrial design or layout design is exclusive or non-exclusive;

b) The right to use is exercised only within the scope and term sufficient to meet the objective of permitting use;

c) The organisation or individual permitted to use by the competent agency must not assign that right to others.

The decision permitting use shall be sent by the agency competent to approve the science and technology task to the person permitted to use the invention, industrial design or layout design, the holder of the exclusive right to use, and the state management agency for industrial property rights.

4. An organisation or individual requesting permission to use an invention, industrial design or layout design resulting from a science and technology task using state budget funds under Clause 2 of this Article shall submit a dossier to the agency competent to approve the science and technology task, comprising the following documents:

a) The request for permission to use the invention, industrial design or layout design resulting from a science and technology task using state budget funds, made using Form No. 02 in Appendix III of this Decree;

b) Documents proving that the request for permission to use the invention, industrial design or layout design resulting from a science and technology task using state budget funds is well-founded.

5. The agency competent to approve science and technology tasks is responsible for processing the dossier according to the following provisions:

a) Checking the validity of the dossier: where the dossier is invalid, within 05 working days at the latest from the date of receiving the dossier, the agency competent to approve the science and technology task must notify the organisation or individual in writing and fix a period of 20 days from the date of the notice for the organisation or individual to remedy the deficiencies.

b) Within 07 working days from the date of receiving a valid dossier, the agency competent to approve the science and technology task shall notify the holder of the exclusive right to use of the request for permission to use the invention, industrial design or layout design and fix a maximum period of 01 month from the date of the notice for the holder of the exclusive right to use to reply in writing, except where the request falls within the case specified at Point b, Clause 3, Article 133a of the Law on Intellectual Property, in which case the agency competent to approve the science and technology task need not notify the holder of the exclusive right to use.

c) After the above time limit, the agency competent to approve the science and technology task shall process the request for permission to use and the opinions of the holder of the exclusive right to use on the basis of the dossier and opinions provided by the parties. Where the request for permission to use the invention, industrial design or layout design is not well-founded under Clause 3, Article 133a of the Law on Intellectual Property, the agency competent to approve the science and technology task shall issue a decision of refusal, clearly stating the reasons for refusal. Where the request for permission to use the invention, industrial design or layout design is found well-founded, the agency competent to approve the science and technology task shall issue a decision permitting use.

6. The holder of the exclusive right to use has the right to request termination of the permission to use when the grounds for permission to use specified in Clause 3, Article 133a of the Law on Intellectual Property no longer exist and are not likely to recur. The request for termination of the permission to use must be made in writing and sent to the agency competent to approve the science and technology task together with supporting documents.

Chapter IV

SECRET INVENTIONS

Article 48. Applications for secret inventions

1. An application for a secret invention must be filed in paper form with the state management agency for industrial property rights in accordance with Clauses 1 and 2, Article 89 of the Law on Intellectual Property.

2. An application for a secret invention comprises the following documents:

a) The documents prescribed in Article 100 of the Law on Intellectual Property, stamped as secret under the law on protection of state secrets (except documents proving payment of fees and charges);

b) A document confirming that the subject matter registered in the application is a state secret under the law on protection of state secrets.

3. An application for a secret invention is received if it contains the minimum information and documents prescribed in Clause 1, Article 108 of the Law on Intellectual Property and the document specified at Point b, Clause 2 of this Article.

Article 49. Procedures relating to secret inventions

1. The procedures for processing applications for secret inventions and granting, maintaining, amending, terminating and invalidating protection titles for secret inventions comply with the corresponding provisions of the Law on Intellectual Property and documents guiding its implementation for invention applications, except in the cases specified in Clauses 2, 3, 4 and 5 of this Article.

2. An application for a secret invention undergoes substantive examination within no more than 18 months from the date the application is accepted as valid, if the request for substantive examination is filed before the date the application is accepted as valid, or from the date of receiving the request for substantive examination if it is filed after the date the application is accepted as valid.

3. A document stating a third party's opinion or objection is regarded as a source of information for processing the application for a secret invention. Where it cannot be determined whether the information, or the disclosure of information, in documents under this Clause complies with regulations on protection of state secrets, the state management agency for industrial property rights shall coordinate with the Ministry of Public Security to determine whether the disclosure of information in the documents under this Clause complies with the law on protection of state secrets.

4. The complaint procedure under Article 119a of the Law on Intellectual Property does not apply to decisions and notices on applications for secret inventions and other types of applications relating to secret inventions.

5. Applications for secret inventions and protection titles for secret inventions are not published in the Industrial Property Gazette.

Article 50. Handling declassified applications for secret inventions and protection titles for secret inventions

1. Applications for secret inventions and protection titles for secret inventions are declassified under Article 22 of the Law on Protection of State Secrets.

2. Where there are clear grounds to believe that the invention in an application for a secret invention, or the invention protected under a protection title for a secret invention, does not comply with Clause 1, Article 2 of the Law on Protection of State Secrets, the state management agency for industrial property rights shall issue a notice requesting the applicant to re-determine whether the invention is a state secret under the law on protection of state secrets and fix a period of 03 months from the date of the notice for the applicant to respond.

3. For cases of declassification under Clause 1 of this Article, the agency or organisation competent to declassify under the law on protection of state secrets shall notify the state management agency for industrial property rights and the applicant or holder of the protection title for the invention of the declassification.

4. An invention application declassified under Clause 1 of this Article, or determined by the applicant not to be a state secret under Clause 2 of this Article, has as its filing date the filing date of the application for the secret invention and continues to be processed under the Law on Intellectual Property for invention applications.

5. A protection title for an invention declassified under Clause 1 of this Article, or determined by the applicant not to be a state secret under Clause 2 of this Article, has as its grant date the grant date of the protection title for the secret invention, and related procedures are carried out under the Law on Intellectual Property for protection titles for inventions.

6. In the case of declassification, the application for the secret invention and the declassified Patent/Utility Solution Patent for the secret invention are published in the Industrial Property Gazette within 03 months from the date of declassification.

Article 51. Registration of secret inventions abroad

Filing an application for a secret invention abroad is carried out in accordance with the law on protection of state secrets.

Article 52. Management of the use of secret inventions

The use of a protected secret invention under Article 123 of the Law on Intellectual Property must comply with the law on protection of state secrets.

Chapter V

TRANSFER OF INDUSTRIAL PROPERTY RIGHTS

Article 53. Compensation for the right to use an invention transferred under a compulsory decision

1. Compensation for the right to use an invention transferred under a compulsory decision, specified at Point d, Clause 1, Article 146 of the Law on Intellectual Property, is determined according to the economic value of the right to use transferred, on the basis of considering the following factors:

a) The price for transferring the right to use the invention under a contract;

b) The funds invested to create the invention, taking into account the portion of funds supported from the state budget (if any);

c) The profit obtained from using the invention;

d) The remaining validity period of the protection title;

dd) The degree of necessity of transferring the right to use the invention;

e) The scope and term of transfer;

g) Other factors directly determining the economic value of the right to use transferred.

2. Compensation for the right to use an invention transferred under a compulsory decision, where the transferee of the right to use the invention and the holder of the exclusive right to use the invention cannot agree, shall not exceed 5% of the net selling price of products manufactured under the invention, provided that the principle in Clause 1 of this Article is ensured.

3. If necessary, the agency competent to issue the decision on compulsory transfer of the right to use the invention may establish a council to determine the compensation under law.

Article 54. Right to request a decision on compulsory transfer of the right to use an invention

An organisation or individual with the capability, duty or need to use an invention as specified at Points a, b, c and dd, or whose competition is obstructed as specified at Point d, Clause 1, Article 145 of the Law on Intellectual Property, has the right to request the person with competence specified in Clause 1, Article 147 of the Law on Intellectual Property to issue a decision on compulsory transfer of the right to use the invention to it, as specifically prescribed in Articles 55 and 56 of this Decree.

Article 55. Dossier requesting a decision on compulsory transfer of the right to use an invention

1. The dossier requesting a decision on compulsory transfer of the right to use an invention comprises the following documents:

a) The declaration requesting compulsory transfer of the right to use the invention, made using Form No. 04 in Appendix I of this Decree;

b) Documents proving that the request for a decision on compulsory transfer of the right to use the invention is well-founded under law, as specified in Clauses 2, 3, 4, 5, 6 and 7 of this Article;

c) A power of attorney (where the request is filed through a representative);

d) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the agency competent to settle this procedure).

2. Where the request for a decision on compulsory transfer of the right to use an invention is based on Point a, Clause 1, Article 145 of the Law on Intellectual Property, the dossier must include documents proving that, at the time of filing, there is an actual need to use the invention for public non-commercial purposes, national defence and security, disease prevention and treatment, nutrition for the people, or to meet other urgent social needs, but the holder of the exclusive right in the invention has not used the invention and this non-use would affect the attainment of those purposes.

3. Where the request for a decision on compulsory transfer of the right to use an invention is based on Point b, Clause 1, Article 145 of the Law on Intellectual Property, the dossier must include documents proving that the holder of the exclusive right in the invention has failed to perform the obligation to use the invention prescribed in Clause 1, Article 136 and Clause 5, Article 142 of the Law on Intellectual Property, and that at the time of filing the dossier, the period of 04 years from the filing date of the invention application and the period of 03 years from the date the invention was granted a patent have ended.

4. Where the request for a decision on compulsory transfer of the right to use an invention is based on Point c, Clause 1, Article 145 of the Law on Intellectual Property, the dossier must include documents proving that the person needing to use the invention has failed to reach agreement with the holder of the exclusive right to use the invention on concluding a contract to use the invention although, within a reasonable time, it has tried to negotiate at a reasonable price and on reasonable commercial conditions, clearly stating the need to use the invention, the negotiation period, and the specific price and commercial conditions proposed by the person needing to use the invention.

5. Where the request for a decision on compulsory transfer of the right to use an invention is based on Point d, Clause 1, Article 145 of the Law on Intellectual Property, the dossier must include documents proving that the holder of the exclusive right to use the invention has committed an act regarded as prohibited restriction of competition under the law on competition.

6. Where the request for a decision on compulsory transfer of the right to use an invention in the field of semiconductor technology is based on Points a and d, Clause 1, Article 145 and Point b, Clause 1, Article 146 of the Law on Intellectual Property, the dossier must include documents proving that the use of that invention is solely for public non-commercial purposes, or produce documents proving that the holder of the exclusive right to use the invention has committed an act regarded as prohibited restriction of competition under the law on competition.

7. Where the request for a decision on compulsory transfer of the right to use an invention is based on Point dd, Clause 1, Article 145 of the Law on Intellectual Property, the dossier must include documents proving that the use of the invention is to meet the need for pharmaceuticals for disease prevention and treatment of another country eligible to import under Article 31bis of the Agreement on Trade-Related Aspects of Intellectual Property Rights.

Article 56. Procedure for processing a dossier requesting a decision on compulsory transfer of the right to use an invention

1. A dossier requesting a decision on compulsory transfer of the right to use an invention is filed as follows:

a) Dossiers in the cases specified at Points b, c and d, Clause 1, Article 145 of the Law on Intellectual Property are filed with the Ministry of Science and Technology;

b) Dossiers in the cases specified at Points a and dd, Clause 1, Article 145 of the Law on Intellectual Property are filed with ministries and ministerial-level agencies managing the field of the invention;

c) The Ministry of Science and Technology, ministries and ministerial-level agencies shall designate an agency to receive and appraise dossiers in the cases specified in this Clause (hereinafter referred to as the “dossier appraisal agency”).

2. A dossier requesting a decision on compulsory transfer of the right to use an invention is appraised as follows:

Within 02 months from the date of receiving the dossier, the dossier appraisal agency shall consider the dossier in accordance with the following:

a) Where the dossier is valid, within 20 days from the date of receiving it, the dossier appraisal agency must issue a notice of the request for transfer of the right to use the invention under a compulsory decision to the holder of the exclusive right to use the invention and require that person to give written opinions within 01 month from the date of the notice; require the relevant parties to renegotiate in order to resolve disagreements and conclude a contract for transfer of the right to use the invention, if it finds it necessary; where the parties fail to reach agreement and it finds that the rights holder's refusal to conclude a contract for transfer of the right to use the invention is unreasonable, report the result of considering the dossier and propose that the Minister of Science and Technology or the Minister or head of the ministerial-level agency issue a decision on compulsory transfer of the right to use the invention.

If the request falls within the case specified at Point a, Clause 1, Article 145 of the Law on Intellectual Property and the use of the invention is for public non-commercial purposes, ministries and ministerial-level agencies have the right to issue a decision on compulsory transfer of the right to use the invention without requiring the holder of the exclusive right to use the invention to give opinions and without requiring the parties to negotiate.

b) Where the request for a decision on transfer of the right to use the invention is not well-founded under Article 145 of the Law on Intellectual Property, the dossier appraisal agency shall report the result of considering the dossier and propose that the Minister of Science and Technology or the Minister or head of the ministerial-level agency issue a notice of intention to refuse, clearly stating the reasons for refusal and fixing a period of 01 month from the date of the notice for the dossier submitter to give opinions on the intended refusal.

The time given to the dossier submitter to remedy deficiencies in the dossier or to object is not counted in the time limit for considering the dossier.

c) For dossiers in the cases specified at Points a and dd, Clause 1, Article 145 of the Law on Intellectual Property, the dossier appraisal agency of ministries and ministerial-level agencies shall send a copy of the dossier to the Ministry of Science and Technology (through the dossier appraisal agency of the Ministry of Science and Technology) for opinions before submitting to the Minister or head of the ministerial-level agency for decision under Points a and b of this Clause. Within 20 days from the date of receiving the dossier, the dossier appraisal agency of the Ministry of Science and Technology shall consider the dossier and report so that the Minister of Science and Technology sends a written opinion proposing that the Minister or head of the ministerial-level agency issue a decision on compulsory transfer of the right to use the invention or issue a notice of refusal.

3. Within 20 days from the date of receiving the report on the result of considering the dossier from the dossier appraisal agency of the Ministry of Science and Technology, the Minister of Science and Technology shall consider and issue a decision on compulsory transfer of the right to use the invention, or send the dossier submitter a notice refusing compulsory transfer of the right to use the invention, clearly stating the reasons for refusal.

Within 20 days from the date of receiving the written proposal of the Minister of Science and Technology, the Minister or head of the ministerial-level agency shall consider and issue a decision on compulsory transfer of the right to use the invention, or send the dossier submitter a notice refusing compulsory transfer of the right to use the invention, clearly stating the reasons for refusal.

Where the Minister or head of the ministerial-level agency does not agree with the proposal of the Minister of Science and Technology, he or she shall notify in writing, clearly stating the reasons.

4. The decision on compulsory transfer of the right to use an invention is sent by the Minister or head of the ministerial-level agency to the transferee of the right to use the invention, the holder of the exclusive right to use the invention, and the dossier appraisal agency of the Ministry of Science and Technology.

The dossier appraisal agency of the Ministry of Science and Technology must record the decision in the National Register of Industrial Property within 01 month and publish it in the Industrial Property Gazette within 02 months from the date of the decision.

Article 57. Request for termination of the right to use an invention under a compulsory decision

1. Termination of the right to use an invention under a compulsory decision must be decided by the Minister or head of the ministerial-level agency who issued the decision on compulsory transfer.

2. The request for termination of the right to use an invention under a compulsory decision comprises the following documents:

a) A written request for termination of the right to use the invention under the compulsory decision;

b) Documents proving that the grounds leading to the transfer of the right to use the invention under the compulsory decision no longer exist and are not likely to recur, and that termination of the use of the invention will not cause damage to the transferee of the right to use the invention under the compulsory decision;

c) A power of attorney (where the request is filed through a representative);

d) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the dossier appraisal agency of the Ministry of Science and Technology).

3. The procedure for receiving and processing a request to terminate the right to use an invention under a compulsory decision, and for issuing the termination decision, is carried out like the procedure for receiving and processing a dossier requesting transfer of the right to use an invention under a compulsory decision specified in Article 55 of this Decree.

Article 58. Dossier for registering a contract on transfer of industrial property rights

1. The dossier for registering a contract on assignment of industrial property rights comprises 01 set of the following documents:

a) The declaration for registering the contract on assignment of industrial property rights, made using Form No. 01 in Appendix IV of this Decree;

b) 01 copy of the contract (original or a copy certified as prescribed); if the contract is made in a language other than Vietnamese, it must be accompanied by a Vietnamese translation of the contract; if the contract has multiple pages, each page must bear the confirming signatures of the parties or be stamped across the joins;

c) The original protection title, where the protection title was issued in paper form;

d) A document of consent of the co-owners to the assignment of industrial property rights, if the corresponding industrial property rights are jointly owned;

dd) A power of attorney (where the request is filed through a representative);

e) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights);

g) For a dossier registering a contract on assignment of a collective mark or certification mark, in addition to the above documents, the following documents are required:

g1) The regulation on use of the collective mark or certification mark of the assignee under Article 105 of the Law on Intellectual Property;

g2) Documents proving the assignee's right to file for the certification mark or collective mark under Clauses 3 and 4, Article 87 of the Law on Intellectual Property.

In this case, the state management agency for industrial property rights re-examines the right to file and the regulation on use of the mark. The applicant must pay the application examination fee in addition to the fees and charges for the dossier registering a contract on assignment of industrial property rights as prescribed.

2. The dossier for registering a contract on transfer of the right to use industrial property subject matter must comprise the following documents:

a) The declaration for registering the contract on transfer of the right to use industrial property subject matter, made using Form No. 02 in Appendix IV of this Decree;

b) 02 copies of the contract (originals, or copies accompanied by the originals for comparison, except where the copy has been certified as prescribed); if the contract is made in a language other than Vietnamese, it must be accompanied by a Vietnamese translation of the contract; if the contract has multiple pages, each page must bear the confirming signatures of the parties or be stamped across the joins;

c) A document of consent of the co-owners to the transfer of the right to use the industrial property subject matter, if the corresponding industrial property rights are jointly owned;

d) A power of attorney (where the request is filed through a representative);

dd) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

3. Each dossier for registering a contract on transfer of industrial property rights records only one step of transfer. Where industrial property subject matter is transferred in multiple steps, a separate dossier for registering a contract on transfer of industrial property rights must be filed for each step.

Article 59. Procedure for processing a dossier for registering a contract on transfer of industrial property rights

1. Where the dossier for registering a contract on transfer of industrial property rights has none of the deficiencies stated in Clause 3 of this Article, the state management agency for industrial property rights carries out the following work:

a) Issues a decision recording the assignment of industrial property rights (for a contract on assignment of industrial property rights) and a decision granting the Certificate of Registration of a Contract on Transfer of the Right to Use Industrial Property Subject Matter (for a contract on transfer of the right to use industrial property subject matter);

b) For a contract on assignment of industrial property rights: records the new owner on the protection title; in the case of assignment of part of the list of goods and services bearing a protected mark, grants a Mark Registration Certificate to the assignee and determines the limit of the list of goods and services in the original protection title for the assigned part;

c) For a contract on transfer of the right to use industrial property subject matter: grants the Certificate of Registration of the Contract on Transfer of the Right to Use Industrial Property Subject Matter to the dossier submitter; stamps the registration on 02 copies of the contract, hands 01 copy to the dossier submitter and retains 01 copy;

d) Records the transfer of industrial property rights in the National Register of Industrial Property;

dd) Publishes the decision recording the assignment of industrial property rights and the decision granting the Certificate of Registration of the Contract on Transfer of the Right to Use Industrial Property Subject Matter in the Industrial Property Gazette within 02 months from the date of the decision.

2. Where the dossier for registering a contract on transfer of industrial property rights has deficiencies under Clause 3 of this Article, the state management agency for industrial property rights carries out the following procedures:

a) Issues a notice of intention to refuse to register the contract, clearly stating the deficiencies of the dossier and fixing a period of 02 months from the date of signing the notice for the dossier submitter to remedy the deficiencies or object to the intended refusal to register the contract;

b) Issues a decision refusing to register the contract if the dossier submitter has not remedied the deficiencies, or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded to the intended refusal to register the contract within the fixed period.

3. A dossier for registering a contract on transfer of industrial property rights is regarded as deficient if it falls within one of the following cases:

a) The declaration is invalid;

b) One of the documents on the list of required documents is missing;

c) The power of attorney is invalid;

d) The copy of the contract is not validly certified;

dd) The name or address of the transferor in the contract does not match the corresponding information in the protection title or in the contract constituting the basis of the right to transfer, the power of attorney, or the declaration; the name or address of the transferee in the contract does not match the name or address in the power of attorney or the declaration;

e) The contract lacks the full signatures (and seals, if any) of the transferor and the transferee;

g) The assignor is not the holder of the protection title;

h) The relevant industrial property subject matter is no longer within its term of protection or is under dispute;

i) The transfer contract lacks the contents required under Article 140 or Clause 1, Article 144 of the Law on Intellectual Property, as applicable;

k) The contract contains content inconsistent with the provisions on conditions restricting the assignment of industrial property rights in Article 139 of the Law on Intellectual Property, or contains terms unreasonably restricting the rights of the transferee of the right to use industrial property subject matter specified in Clause 2, Article 144 of the Law on Intellectual Property;

l) There are grounds to affirm that the assignment of industrial property rights infringes the industrial property rights of a third party.

4. The time limit for processing a dossier for registering a contract on transfer of industrial property rights is 02 months. The time given to the dossier submitter to remedy deficiencies is not counted in the dossier processing time.

5. After the dossier for registering a contract on transfer of industrial property rights is filed with the state management agency for industrial property rights, if the parties have a dispute relating to the contract, the state management agency for industrial property rights shall suspend consideration of the dossier until the parties resolve the dispute and submit documents proving that the dispute has been resolved, whereupon the state management agency for industrial property rights shall continue considering the dossier as prescribed.

6. Before the state management agency for industrial property rights issues a decision recording or refusing to record the registration of a contract on transfer of industrial property rights, if one of the parties wishes to withdraw the dossier for registering the contract on transfer of industrial property rights, the consent of both parties to withdrawing the filed dossier is required, except for withdrawal due to inability to remedy deficiencies as requested by the state management agency for industrial property rights.

Article 60. Conditions restricting the assignment of rights in marks

1. An assignment of rights in a mark under Clause 4, Article 139 of the Law on Intellectual Property is regarded as causing confusion about the characteristics or origin of goods and services bearing the mark in the following cases:

a) The assigned mark is identical or similar to the point of causing confusion with another mark protected under a Mark Registration Certificate or international mark registration owned by the assignor;

b) Part of the goods and services bearing the assigned mark is similar to the remaining part of the List of goods and services owned by the assignor, and the use of the mark with that part of the goods and services by the assignee is likely to cause confusion as to the commercial origin of the goods and services (in the case where the scope of assignment is part of the list of goods and services);

c) The assigned mark contains an element that is a sign causing consumers to be confused or misled about the origin, quality, value, etc. of the goods and services within the scope of assignment.

2. Rights in a collective mark or certification mark may only be assigned to an organisation meeting the conditions for an organisation having the right to register that collective mark or certification mark.

Article 61. Recording amendments to the content, extension, and early termination of the validity of a contract on transfer of the right to use industrial property subject matter

1. Amendments to the content, extension, and early termination of the validity of a registered contract on transfer of the right to use industrial property subject matter must all be recorded at the state management agency for industrial property rights under this Article.

2. The dossier requesting recording of amendments to the content, extension or early termination of the validity of the contract is handled as follows:

a) The dossier requesting recording of amendments to the content, extension or early termination of the validity of a contract on transfer of the right to use industrial property subject matter must be made in writing and comprise the following documents:

a1) The declaration requesting recording of amendments to the content, extension or early termination of the validity of the contract on transfer of the right to use industrial property subject matter, made using Form No. 03 in Appendix IV of this Decree;

a2) The original Certificate of Registration of the Contract on Transfer of the Right to Use Industrial Property Subject Matter (where registration of an amendment to the content or an extension of the validity of the contract is sought);

a3) Documents proving the amendment of the names or addresses of the parties to the contract;

a4) The agreement or document recording the specific terms to be amended or supplemented in the contract, including extension or early termination of the contract's validity;

a5) A power of attorney (where the request is filed through a representative);

a6) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

b) The dossier requesting extension of the contract must be filed within 01 month up to the end of the contract term stated in the Certificate of Registration of the Contract on Transfer of the Right to Use Industrial Property Subject Matter.

3. Within 01 month from the date of receiving the dossier requesting recording of amendments to the content, extension or early termination of the validity of the contract, the state management agency for industrial property rights is responsible for considering the dossier as follows:

a) Where the dossier is valid, the state management agency for industrial property rights issues a decision recording the amendment to the content, extension or early termination of the validity of the contract on transfer of the right to use industrial property subject matter; records the amended content and extension of validity of the contract on the Certificate of Registration of the Contract on Transfer of the Right to Use Industrial Property Subject Matter; records the amendments, extension or early termination of validity of the contract in the National Register of Industrial Property; and publishes the decisions recording the amendments to the content, extension or early termination of validity of the contract on transfer of the right to use industrial property subject matter in the Industrial Property Gazette within 02 months from the date of the decision;

b) Where the dossier has deficiencies, the state management agency for industrial property rights issues a notice of intention to refuse to record the amendment to the content, extension or early termination of validity of the contract on transfer of the right to use industrial property subject matter, clearly stating the deficiencies of the dossier and fixing a period of 02 months from the date of the notice of intended refusal for the dossier submitter to remedy the deficiencies or object to the intended refusal to register the contract.

If the dossier submitter has not remedied the deficiencies, or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded within the fixed period, the state management agency for industrial property rights shall issue a decision refusing to record the amendment to the content, extension or early termination of validity of the contract on transfer of the right to use industrial property subject matter.

Chapter VI

INDUSTRIAL PROPERTY REPRESENTATION

Article 62. Industrial property law training programme

1. The industrial property law training programme must ensure that learners are provided with the knowledge and skills for applying industrial property law necessary to resolve specific issues relating to protection of industrial property rights, with a minimum duration of 20 credit units or 18 credits (of which at least 40% of the training time is practice, professional internship or graduation internship).

2. The Ministry of Science and Technology shall develop a framework programme for training in industrial property law according to the criteria in Clause 1 of this Article.

3. A training course in industrial property law specified at Point d, Clause 2 and Clause 2a, Article 155 of the Law on Intellectual Property that is taught under the framework programme specified in Clause 2 of this Article is recognised by the Ministry of Science and Technology.

4. An individual is regarded as having graduated from the training course in industrial property law specified at Point d, Clause 2 and Clause 2a, Article 155 of the Law on Intellectual Property if he or she has graduated from an industrial property training course meeting the requirements in Clause 2 of this Article and recognised by the Ministry of Science and Technology under Clause 3 of this Article.

Article 63. Industrial property representation professional examination

1. The industrial property representation professional examination is conducted to assess the ability to apply industrial property law to resolve specific issues relating to establishing and protecting industrial property rights.

2. The state management agency for industrial property rights organises the industrial property representation professional examination periodically every 02 years. The plan for organising the industrial property representation professional examination must be published on the web portal of the state management agency for industrial property rights.

3. The examination result is notified by the state management agency for industrial property rights to the examinee. The examinee has the right to request the state management agency for industrial property rights to re-check the examination result.

4. The examination result of an individual meeting Point e, Clause 2, Article 155 of the Law on Intellectual Property is valid for 05 years (from the date of the notice of examination results) for the purpose of requesting the state management agency for industrial property rights to issue a Practising Certificate for industrial property representation services.

5. The industrial property representation professional examination council is established by the state management agency for industrial property rights and has the task of organising the industrial property representation professional examination under the Regulation on the industrial property representation professional examination promulgated by that agency.

6. An individual meeting all the conditions in Points a to dd, Clause 2, Article 155 of the Law on Intellectual Property may register to sit the industrial property representation professional examination under Clause 7 of this Article.

7. The dossier for registering to sit the examination is submitted to the state management agency for industrial property rights and comprises 01 set of the following documents:

a) The declaration for registering to sit the examination, made using Form No. 01 in Appendix V of this Decree;

b) A copy of the bachelor's degree or equivalent qualification specified at Point c, Clause 2, Article 155 of the Law on Intellectual Property (produce the original for comparison, except where the copy has been certified);

c) A copy of the certificate of graduation from the industrial property law training course recognised by the Ministry of Science and Technology specified in Article 62 of this Decree (produce the original for comparison, except where the copy has been certified); or a copy of the recruitment decision or labour contract and other documents (certified by the agency or organisation where the individual works) proving at least 05 years of direct work in examining industrial property applications at a national or international industrial property agency, or in industrial property legal work specified at Point d, Clause 2, Article 155 of the Law on Intellectual Property, including work in inspection, examination, procuracy, adjudication, legal affairs, legal consultancy, state management of industrial property, scientific research (with the title of researcher) and teaching on industrial property (produce the original for comparison, except where the copy has been certified);

d) 02 photos of 3 x 4 (cm);

dd) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

8. The dossier for registering to sit the examination is processed by the state management agency for industrial property rights within 20 days from the date of receiving the dossier, in the following order:

a) Where the dossier is valid, the state management agency for industrial property rights notifies the dossier submitter that he or she is eligible to sit the examination and, at the same time, notifies the expected time, venue and schedule of the examination;

b) Where the dossier is invalid, the state management agency for industrial property rights notifies the deficiencies of the dossier and fixes a period of 01 month from the date of the notice for the dossier submitter to remedy them;

c) Where the dossier submitter does not remedy the deficiencies or remedies them unsatisfactorily, the state management agency for industrial property rights shall issue a decision refusing to accept the application for registration to sit the examination, clearly stating the reasons for refusal.

Article 64. Issuance, reissuance and revocation of the Practising Certificate for industrial property representation services

1. The issuance of the Practising Certificate for industrial property representation services is carried out as follows:

a) The Practising Certificate for industrial property representation services is issued by the state management agency for industrial property rights to an individual meeting the conditions in Clauses 2 and 2a, Article 155 of the Law on Intellectual Property, if he or she so requests and pays the fees and charges prescribed by law;

b) The dossier requesting issuance of the Practising Certificate for industrial property representation services comprises 01 set of documents as follows:

b1) The declaration requesting issuance of the Practising Certificate for industrial property representation services, made using Form No. 02 in Appendix V of this Decree;

b2) A copy of the certificate of graduation from the industrial property law training course and a copy of the lawyer's card, for the case of requesting issuance of a practising certificate under Clause 2a, Article 155 of the Law on Intellectual Property (produce the originals for comparison, except where the copies have been certified);

b3) 02 photos of 3 x 4 (cm);

b4) A copy of the identity card (produce the original for comparison, except where the copy has been certified), except where the declaration requesting issuance of the Practising Certificate for industrial property representation services already contains the citizen identity card number;

b5) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

c) The dossier requesting issuance of the Practising Certificate for industrial property representation services is processed by the state management agency for industrial property rights within 01 month from the date of receiving the dossier, in the following order:

c1) Where the dossier is valid, the state management agency for industrial property rights decides to issue the Practising Certificate for industrial property representation services, clearly stating the full name, date of birth, permanent residence address, identity card/citizen identity card number, Certificate number and practising field of the certificate holder; records the issuance of the Practising Certificate in the National Register of Industrial Property Representation and publishes it in the Industrial Property Gazette and on the web portal of that agency within 02 months from the date of the decision;

c2) Where the dossier is invalid, the state management agency for industrial property rights notifies the deficiencies of the dossier and fixes a period of 01 month from the date of the notice for the dossier submitter to remedy them;

c3) Where the dossier submitter does not remedy the deficiencies or remedies them unsatisfactorily, the state management agency for industrial property rights issues a decision refusing to issue the Practising Certificate for industrial property representation services, clearly stating the reasons for refusal;

d) The Practising Certificate for industrial property representation services is made using Form No. 03 in Appendix V of this Decree.

2. The reissuance of the Practising Certificate for industrial property representation services is carried out as follows:

a) In the following cases, the state management agency for industrial property rights reissues the Practising Certificate for industrial property representation services if the industrial property representative so requests and pays the fees and charges as prescribed:

a1) The information in the Practising Certificate for industrial property representation services specified at Point c1, Clause 1 of this Article has changed;

a2) The Practising Certificate for industrial property representation services is lost, erroneous or damaged (torn, soiled, faded, etc.) to the point of being unusable;

a3) The conditions for issuance of the Practising Certificate for industrial property representation services have been fully restored, in the case where the Practising Certificate was revoked for no longer meeting the conditions in Clauses 2 and 2a, Article 155 of the Law on Intellectual Property.

b) The dossier requesting reissuance of the Practising Certificate for industrial property representation services is submitted to the state management agency for industrial property rights and comprises 01 set of documents as follows:

b1) The declaration requesting reissuance of the Practising Certificate for industrial property representation services, made using Form No. 04 in Appendix V of this Decree;

b2) 02 photos of 3 x 4 (cm);

b3) A copy of the identity card (produce the original for comparison, except where the copy has been certified), except where the declaration requesting reissuance of the Practising Certificate for industrial property representation services already contains the citizen identity card number, for the case specified at Point a1 of this Clause;

b4) Documents proving that the conditions for issuance of the Practising Certificate for industrial property representation services have been restored, for the case specified at Point a3 of this Clause;

b5) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

c) The dossier requesting reissuance of the Practising Certificate for industrial property representation services is processed by the state management agency for industrial property rights within 20 days from the date of receiving the dossier, in the same order as the procedure for issuing a practising certificate for industrial property representation services specified at Point c, Clause 1 of this Article.

d) Where the Practising Certificate for industrial property representation services is erroneous due to the fault of the state management agency for industrial property rights, that agency is responsible for reissuing the Practising Certificate for industrial property representation within 05 working days from the date of receiving the request of the certificate holder, without collecting a fee for reissuance.

3. Revocation of the practising certificate for industrial property representation services is carried out as follows:

a) The Practising Certificate for industrial property representation services is revoked by the state management agency for industrial property rights in the following cases:

a1) The holder of the Practising Certificate for industrial property representation services no longer meets the conditions in Clauses 2 and 2a, Article 155 of the Law on Intellectual Property;

a2) The holder of the Practising Certificate for industrial property representation services has the Practising Certificate revoked by decision of a competent state agency under Clause 4, Article 156 of the Law on Intellectual Property;

b) The state management agency for industrial property rights, on its own initiative or at the request of an organisation or individual, revokes the Practising Certificate for industrial property representation services if there are grounds to affirm that the holder falls within one of the cases specified at Point a of this Clause;

c) An organisation or individual requesting revocation of the Practising Certificate for industrial property representation services must submit 01 set of documents as follows:

c1) A request for revocation of the Practising Certificate for industrial property representation services;

c2) Documents proving the grounds for revoking the Practising Certificate for industrial property representation services.

d) The order of revoking the Practising Certificate for industrial property representation services is as follows:

d1) Where an organisation or individual requests revocation of the Practising Certificate for industrial property representation services under Point c of this Clause, within 01 month from the date of receiving the request, the state management agency for industrial property rights shall notify the holder of the Practising Certificate of the request in writing and fix a period of 01 month from the date of the notice for that person to give opinions. On the basis of considering the opinions of the parties, the state management agency for industrial property rights shall issue a decision revoking the Practising Certificate or a decision refusing to revoke the Practising Certificate and send it to the parties;

d2) Where there are grounds to affirm that the holder of the Practising Certificate for industrial property representation services no longer meets the conditions in Clauses 2 and 2a, Article 155 of the Law on Intellectual Property, the state management agency for industrial property rights shall notify the holder of the Practising Certificate in writing of the intention to revoke the Practising Certificate and fix a period of 01 month from the date of the notice for that person to give opinions. On the basis of considering the opinions of the holder of the Practising Certificate for industrial property representation services, the state management agency for industrial property rights shall issue a decision revoking the Practising Certificate or notify the holder that the Practising Certificate is not revoked;

d3) Where a competent state agency has issued a decision revoking the Practising Certificate for industrial property representation services, within 01 month from the date of receiving that decision, the state management agency for industrial property rights shall issue a decision revoking the Practising Certificate;

d4) The decision revoking the Practising Certificate for industrial property representation services is recorded by the state management agency for industrial property rights in the National Register of Industrial Property Representation and published in the Industrial Property Gazette within 02 months from the date of the decision.

Article 65. Recording and removing names of industrial property representatives

1. Recording an organisation meeting the conditions for providing industrial property representation services is carried out as follows:

a) An organisation meeting all the conditions in Article 154 of the Law on Intellectual Property is recorded by the state management agency for industrial property rights as an organisation providing industrial property representation services in the National Register of Industrial Property Representation and published in the Industrial Property Gazette if it so requests and pays the fees and charges prescribed by law.

Branches and other dependent units of organisations meeting the conditions in Article 154 of the Law on Intellectual Property may provide industrial property representation services only in the name of the organisation on which they depend.

b) The dossier requesting recording of an industrial property representation service organisation in the National Register of Industrial Property Representation is submitted to the state management agency for industrial property rights in the name of the organisation meeting the conditions in Article 154 of the Law on Intellectual Property, and comprises 01 set of documents as follows:

b1) The declaration requesting recording of the industrial property representation service organisation, made using Form No. 05 in Appendix V of this Decree, fully stating information on the organisation and on the authorised industrial property representative of the organisation;

b2) A copy of the organisation's recruitment decision or labour contract for the person holding the Practising Certificate for industrial property representation services (produce the original for comparison, except where the copy has been certified);

b3) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

c) Within 20 days from the date of receiving the dossier requesting recording of the industrial property representation service organisation, the state management agency for industrial property rights considers the dossier in the same order as the procedure for issuing a Practising Certificate for industrial property representation services specified at Point c, Clause 1, Article 64 of this Decree.

2. Recording an industrial property representative is carried out as follows:

a) An individual eligible to practise industrial property representation services may request the state management agency for industrial property rights to record him or her as an industrial property representative in the National Register of Industrial Property Representation and publish it in the Industrial Property Gazette under Clause 1, Article 156 of the Law on Intellectual Property and this Clause, and must pay the fees and charges as prescribed.

b) The dossier requesting recording of an industrial property representative in the National Register of Industrial Property Representation is submitted to the state management agency for industrial property rights in the name of the individual meeting the conditions in Article 155 of the Law on Intellectual Property, and comprises 01 set of documents as follows:

b1) The declaration requesting recording of the industrial property representative, made using Form No. 06 in Appendix V of this Decree, fully stating information on the individual and on the industrial property representation organisation where the individual practises;

b2) A copy of the recruitment decision or labour contract of the industrial property representation service organisation for the individual (produce the original for comparison, except where the copy has been certified);

b3) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

c) Within 20 days from the date of receiving the dossier requesting recording of the industrial property representative, the state management agency for industrial property rights considers the dossier in the same order as the procedure for issuing a Practising Certificate for industrial property representation services specified at Point c, Clause 1, Article 64 of this Decree.

3. Recording changes to the information of an industrial property representation service organisation is carried out as follows:

a) An industrial property representation service organisation may request the state management agency for industrial property rights to record changes to information already recorded in the National Register of Industrial Property Representation (including the full name, trading name, abbreviated name and address of the organisation, the field of business in industrial property representation services, and the full name and Certificate number of the industrial property representatives practising in the organisation) under this Point, and must pay the fees and charges as prescribed.

b) The dossier requesting recording of changes to the information of the industrial property representation service organisation is submitted to the state management agency for industrial property rights and comprises the following documents:

b1) The declaration requesting recording of changes to the information of the industrial property representation service organisation, made using Form No. 07 in Appendix V of this Decree;

b2) A copy of the amended business registration certificate or operation registration certificate of the industrial property representation service organisation, in the case of a change of name or address (produce the original for comparison, except where the copy has been certified), except where the Enterprise code has been stated in the Declaration requesting recording of changes to the industrial property representation service organisation;

b3) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

c) Within 20 days from the date of receiving the dossier requesting recording of changes to the information of the industrial property representation service organisation, the state management agency for industrial property rights considers the dossier in the same order as the procedure for issuing a Practising Certificate for industrial property representation services specified at Point c, Clause 1, Article 64 of this Decree.

4. Removing the name of an industrial property representation service organisation is carried out as follows:

a) An industrial property representation service organisation must carry out the procedure for removing its name from the National Register of Industrial Property Representation at the state management agency for industrial property rights in the following cases:

a1) The industrial property representation service organisation renounces or terminates business in industrial property representation services;

a2) The industrial property representation service organisation no longer fully meets the conditions in Article 154 of the Law on Intellectual Property;

b) The dossier requesting removal of the name of the industrial property representation service organisation is submitted to the state management agency for industrial property rights and comprises the following documents:

b1) The declaration requesting removal of the name of the industrial property representation service organisation, made using Form No. 08 in Appendix V of this Decree;

b2) Documents proving that the organisation no longer meets the conditions for providing industrial property representation services;

b3) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

c) Within 20 days from the date of receiving the dossier requesting removal of the name of the industrial property representation service organisation, the state management agency for industrial property rights considers the dossier in the same order as the procedure for issuing a Practising Certificate for industrial property representation services specified at Point c, Clause 1, Article 64 of this Decree.

5. Removing the name of an industrial property representative is carried out as follows:

a) An industrial property representative must carry out the procedure for removing his or her name from the National Register of Industrial Property Representation at the state management agency for industrial property rights when he or she no longer meets the conditions for practising under Point b, Clause 1, Article 155 of the Law on Intellectual Property.

b) The dossier requesting removal of the name of an industrial property representative is submitted to the state management agency for industrial property rights and comprises the following documents:

b1) The declaration requesting removal of the name of the industrial property representative, made using Form No. 09 in Appendix V of this Decree;

b2) Documents proving that the holder of the Practising Certificate for industrial property representation services does not meet the conditions for practising industrial property representation services under Point b, Clause 1, Article 155 of the Law on Intellectual Property (a decision terminating the labour contract or other documents);

b3) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights);

c) Within 20 days from the date of receiving the dossier requesting removal of the name of the industrial property representative, the state management agency for industrial property rights considers the dossier in the same order as the procedure for issuing a Practising Certificate for industrial property representation services specified at Point c, Clause 1, Article 64 of this Decree.

Chapter VII

MEASURES TO PROMOTE INDUSTRIAL PROPERTY ACTIVITIES

Article 66. Training and development of human resources for industrial property activities

1. The Ministry of Science and Technology shall detail the content and programmes for training and development in industrial property.

2. The Ministry of Science and Technology shall preside over, and coordinate with relevant ministries and sectors in, organising development courses in industrial property for persons engaged in state management, examination, appraisal, and handling of violations and infringements of industrial property.

Article 67. Ensuring industrial property information

1. The industrial property information system comprises the collection of information relating to all industrial property subject matter protected in Vietnam, and information selected by purpose or by topic on foreign industrial property subject matter, classified and arranged appropriately and conveniently for searching (look-up), distribution and use.

2. The Ministry of Science and Technology is responsible for organising the building and management of industrial property information repositories; building tools for classification and look-up and guidance on how to search for and use domestic and foreign industrial property information; organising the provision of complete, timely and accurate information, ensuring access to the information repositories for subjects needing information to serve activities of establishing and protecting industrial property rights, research, development and business; and managing and organising the sharing, connection, exploitation and international cooperation and other activities relating to the national industrial property database.

Article 68. Expanding the scope of use of inventions, industrial designs and layout designs of the State

1. For inventions, industrial designs and layout designs owned by the State, where the holder of the protection title's ability to use them does not meet the needs of society, other state organisations have the right to request the holder of the protection title to transfer the right to use those inventions, industrial designs and layout designs under the following conditions:

a) The transferred right to use the invention, industrial design or layout design is non-exclusive and may not be transferred to others;

b) The scope of use of the invention, industrial design or layout design by the transferee does not affect use of the invention, industrial design or layout design up to the capacity of the holder of the protection title;

c) Where the invention, industrial design or layout design is used for non-commercial purposes, the price for transferring the right to use that the transferee must pay to the holder of the protection title is 50% of the amount that a transferee that is not a state organisation would pay to receive the right to use that invention, industrial design or layout design under otherwise equivalent conditions.

2. The transfer of the right to use inventions, industrial designs and layout designs of the State to state organisations specified in Clause 1 of this Article does not affect the holder of the protection title's right to transfer the right to use those subject matters to other non-state organisations.

Article 69. Encouraging social organisations and socio-professional organisations to engage in industrial property activities

Social organisations and socio-professional organisations operating in the field of industrial property shall be facilitated in performing the functions of consulting and social critique on industrial property and promoting non-public social service activities, so as to fully promote a supporting role for the activities of state agencies and to support subjects of industrial property rights.

Article 70. Other measures to encourage creative activities

The State encourages and sponsors technological creative activities through the following measures:

1. Sponsoring technical creativity contests.

2. Commending, and disseminating experience, creative methods and advanced models of creative labour.

3. Supporting activities to establish and protect industrial property rights in creative achievements.

Part Four

PROTECTION OF INDUSTRIAL PROPERTY RIGHTS AND PLANT VARIETY RIGHTS

Chapter I

DETERMINING INFRINGING ACTS, AND THE NATURE AND EXTENT OF INFRINGEMENT; DETERMINING DAMAGE

Section 1. GROUNDS FOR DETERMINING INFRINGING ACTS AND THE NATURE AND EXTENT OF INFRINGEMENT

Article 71. Application of civil, administrative and criminal measures to protect industrial property rights and plant variety rights

Depending on their nature and extent, infringing acts may be handled by civil, administrative or criminal measures under Part Five (Protection of intellectual property rights) of the Law on Intellectual Property and the following provisions:

1. Civil measures are applied to handle infringing acts at the request of the subject of industrial property rights or plant variety rights, or of an organisation or individual damaged by the infringing act, even where that act has been or is being handled by administrative or criminal measures.

The procedure for requesting application of civil measures, and the competence, order and procedures for applying civil measures, comply with the law on civil procedure.

2. Administrative measures are applied to handle infringing acts falling within one of the cases specified in Article 211 of the Law on Intellectual Property, at the request of the subject of industrial property rights or plant variety rights, an organisation or individual damaged by the infringing act, an organisation or individual discovering the infringing act, or upon the proactive discovery of a competent authority.

The forms, levels of fines, competence and procedures for penalising infringing acts and the measures to remedy consequences comply with the Law on Intellectual Property and the law on penalties for administrative violations in the field of industrial property rights and plant variety rights.

3. Criminal measures are applied to handle infringing acts where the act has sufficient elements constituting a crime under the Penal Code.

The competence, order and procedures for applying criminal measures comply with the law on criminal procedure.

Article 72. Determining infringing acts

An act under consideration is regarded as an act infringing industrial property rights or plant variety rights specified in Articles 126, 127, 129 and 188 of the Law on Intellectual Property when the following grounds are all present:

1. The subject matter under consideration falls within the scope of protected subject matter;

2. There is an infringing element in the subject matter under consideration;

3. The person performing the act under consideration is not a subject of industrial property rights or plant variety rights and is not a person permitted by law or by a competent authority under Clauses 2 and 3, Article 125, Article 133, Clause 3, Article 133a, Article 134, Clause 2, Article 137, and Articles 145, 190 and 195 of the Law on Intellectual Property;

4. The act under consideration occurs in Vietnam. An act is also regarded as occurring in Vietnam if it occurs on the Internet and is carried out on a website with a Vietnamese domain name or a Vietnamese display language, or targeted at consumers or information users in Vietnam.

Article 73. Grounds for determining protected subject matter

1. Protected subject matter is determined by considering documents and evidence proving the grounds for arising and establishing rights under Article 6 of the Law on Intellectual Property.

2. For types of industrial property rights registered at a competent authority, the protected subject matter is determined according to the registration certificate, the protection title and the documents accompanying that registration certificate or protection title.

3. For trade names, the protected subject matter is determined on the basis of the process, field and territory of use of the trade name.

4. For business secrets, the protected subject matter is determined on the basis of documents showing the content and nature of the business secret and the explanation and description of the corresponding confidentiality measures.

5. For well-known marks, the protected subject matter is determined on the basis of documents and evidence of widespread use to achieve the mark's fame according to the criteria in Article 75 of the Law on Intellectual Property.

6. For geographical indications protected under international treaties, the protected subject matter is determined under the international treaty or the National Register of Industrial Property.

7. Plant variety rights are determined according to the Plant Variety Protection Certificate issued by a competent state agency.

Article 74. Elements infringing rights in inventions

1. An element infringing rights in an invention may take one of the following forms:

a) A product or part of a product identical or equivalent to a product or part of a product within the scope of protection of the invention;

b) A process identical or equivalent to a process within the scope of protection of the invention;

c) A product or part of a product manufactured by a process identical or equivalent to a process within the scope of protection of the invention.

2. The basis for determining an element infringing rights in an invention is the scope of protection of the invention determined according to the Patent, the Utility Solution Patent or an extract of the National Register of Industrial Property.

Article 75. Elements infringing rights in layout designs

1. An element infringing rights in a layout design may take one of the following forms:

a) A layout design created by unauthorised copying of a protected layout design;

b) A semiconductor integrated circuit created without authorisation according to a protected layout design;

c) A product or part of a product incorporating the semiconductor integrated circuit specified at Point b of this Clause.

2. The basis for determining an element infringing rights in a layout design is the scope of protection of rights in the layout design determined according to the Certificate of Registration of the Layout Design of Semiconductor Integrated Circuits or an extract of the National Register of Industrial Property.

Article 76. Elements infringing rights in industrial designs

1. An element infringing rights in an industrial design is a product, or a part to be assembled into a complex product, whose external appearance is not substantially different from the protected industrial design.

2. The basis for determining an element infringing rights in an industrial design is the scope of protection of the industrial design determined according to the Industrial Design Patent, the decision accepting protection of an internationally registered industrial design, or an extract of the National Register of Industrial Property.

3. A product, or a part to be assembled into a complex product, whose external appearance is regarded as not substantially different from the protected industrial design falls within one of the following cases:

a) The product or part to be assembled into a complex product under consideration, including where an Industrial Design Patent has been granted, has an external appearance that is a set of design features forming a whole that is a copy, or in essence a copy (differences being almost indistinguishable), of another person's protected industrial design;

b) The product or part to be assembled into a complex product under consideration has an external appearance that is a set of design features forming a whole that is a copy, or in essence a copy, of the industrial design of at least one product in another person's protected set of products.

Article 77. Elements infringing rights in marks

1. An element infringing rights in a mark is a sign attached to goods, goods packaging, service facilities, transaction papers, signboards, advertising media and other business media, that is identical or similar to the point of causing confusion with the protected mark.

2. The basis for considering an element infringing rights in a mark is the scope of protection of the mark, comprising the mark sample and the list of goods and services determined in the Mark Registration Certificate or the Certificate of an internationally registered mark protected in Vietnam, or an extract of the National Register of Industrial Property, or through evaluating evidence proving a well-known mark under Article 75 of the Law on Intellectual Property.

3. To determine whether a suspected sign is an element infringing rights in a mark, that sign must be compared with the mark, and the goods and services bearing that sign must be compared with the goods and services within the scope of protection. An infringing element can be affirmed only when both of the following conditions are met:

a) The suspected sign is identical or similar to the point of causing confusion with the mark within the scope of protection; in which a sign is regarded as identical to a mark within the scope of protection if it has the same composition and manner of presentation; and a sign is regarded as similar to the point of causing confusion with a mark within the scope of protection if some components are completely identical or so similar that they cannot easily be distinguished in composition, pronunciation, transcription, meaning, presentation, or colour for a visible sign, melody or tone for a sound sign, and use of the sign is likely to cause consumers to be confused about goods or services bearing the mark;

b) The goods and services bearing the suspected sign are identical or similar in nature or in function and use and share the same distribution channels as the goods and services within the scope of protection; or are related to each other in nature, function or manner of performance.

4. For a well-known mark, a suspected sign is regarded as an infringing element if:

a) The suspected sign meets the condition specified at Point a, Clause 3 of this Article;

b) The goods and services bearing the suspected sign meet the condition specified at Point b, Clause 3 of this Article, or the goods and services are neither identical, similar nor related to the goods and services bearing the well-known mark but are likely to cause consumers to be confused about the origin of the goods and services or to create a false impression of a relationship between the producer or trader of those products or services and the owner of the well-known mark.

Article 78. Elements infringing rights in geographical indications

1. An element infringing rights in a geographical indication takes the form of a sign attached to goods, goods packaging, service facilities, transaction papers, signboards, advertising media and other business media, that is identical or similar to the point of causing confusion with the protected geographical indication.

2. The basis for considering an element infringing rights in a geographical indication is the scope of protection of the geographical indication determined in the Geographical Indication Registration Certificate or in an international treaty recognising and protecting the geographical indication, or an extract of the National Register of Industrial Property.

3. To determine whether a suspected sign is an element infringing rights in a protected geographical indication, that sign must be compared with the geographical indication, and the product bearing the suspected sign must be compared with the product bearing the protected geographical indication, on the following bases:

a) The suspected sign is identical or similar to the point of causing confusion with the geographical indication, in which a sign is regarded as identical to the geographical indication if it is the same as the protected geographical indication in wording, including pronunciation and transcription of letters, meaning, or in images and symbols within the scope of protection of the geographical indication; and a sign is regarded as similar to the point of causing confusion with the geographical indication if it is so similar to that geographical indication in wording, including pronunciation and transcription of letters, meaning, or in images and symbols within the scope of protection of the geographical indication that it leads consumers to wrongly understand that the product bearing that sign originates from the protected geographical area;

b) The product bearing the suspected sign is identical or similar to the product bearing the protected geographical indication, in which products are regarded as identical or similar if they are the same or similar in nature, function, use and distribution channels;

c) For wines and spirits, in addition to the provisions at Points a and b of this Clause, a sign identical to the protected geographical indication, including in translated or transcribed form or accompanied by words such as kind, type, style, imitation or similar words, used for products not originating from the geographical area bearing the protected geographical indication, is also regarded as an element infringing rights in the geographical indication.

Article 79. Elements infringing rights in trade names

1. An element infringing rights in a trade name takes the form of a commercial indication attached to goods, goods packaging, service facilities, transaction papers, signboards, advertising media and other business media, that is identical or similar to the point of causing confusion with the protected trade name.

2. The basis for considering an element infringing rights in a trade name is the scope of protection of the trade name determined on the basis of evidence of lawful use of that trade name provided by the owner of the trade name, which specifically identifies the business entity, business establishment, business activities, business field and business area, and the process of use of the trade name.

3. To determine whether a suspected sign is an element infringing rights in a trade name, that sign must be compared with the protected trade name, the business entity, business establishment and business activities relating to the suspected sign must be compared, and the goods and services bearing that sign must be compared with the goods and services of the protected trade name, on the following bases:

a) The suspected sign is identical or similar to the point of causing confusion with the protected trade name; in which a sign is regarded as identical to the protected trade name if it is the same as the trade name in wording, including pronunciation and transcription of the trade name; and a sign is regarded as similar to the protected trade name if it is similar in composition, pronunciation and transcription of the trade name, causing consumers to be confused about the business entity, business establishment and business activities under the protected trade name;

b) The goods and services bearing the suspected sign are regarded as identical or similar to the goods and services bearing the protected trade name if they are identical or similar in nature or in function and use and share the same distribution channels; or are related to each other in nature, function or manner of performance.

Article 80. Elements infringing rights in plant varieties

1. An element infringing rights in a plant variety regarded as constituting an infringing act is manifested as follows:

a) Propagating material, intact seedlings, harvested products or any material capable of growing into a complete plant of a protected plant variety;

b) The name of a plant variety, or characters similar to the point of causing confusion, shown on goods, goods packaging, service facilities, transaction papers, signboards, advertising media and other business media, that is identical or similar to the point of causing confusion with the name of a protected plant variety;

c) Machinery, equipment, storage and preservation facilities, means of transport or other equipment serving the purpose of processing, storing seeds, propagating material, or harvested material to be used as seed of the plant variety.

2. The basis for determining an element infringing rights in a plant variety is the scope of the Plant Variety Protection Certificate that remains valid.

Article 81. Grounds for determining the nature and extent of infringement of industrial property rights and plant variety rights

1. The nature of infringement specified in Clause 1, Article 199 of the Law on Intellectual Property is determined on the following grounds:

a) Circumstances and motive of infringement: unintentional infringement, intentional infringement, infringement under coercion or dependence, first-time infringement, repeat infringement;

b) Manner of committing the infringing act: individual infringement, organised infringement, committing the infringing act oneself, bribing, deceiving or coercing others to commit the infringing act.

2. The extent of infringement specified in Clause 1, Article 199 of the Law on Intellectual Property is determined on the following grounds:

a) Territorial scope, duration, volume and scale of the infringing act;

b) Impact and consequences of the infringing act.

Section 2. DETERMINING DAMAGE

Article 82. Principles for determining damage to industrial property rights and plant variety rights

1. Damage caused by infringement of industrial property rights and plant variety rights specified in Article 204 of the Law on Intellectual Property is actual material and moral loss directly caused by the infringing act to the subject of the rights.

2. There is regarded as being actual loss if the following grounds are all present:

a) The material or moral interest is real and belongs to the damaged person;

b) The damaged person was able to attain the interest specified at Point a of this Clause;

c) There is a decrease or loss of the interest of the damaged person after the infringing act occurred compared with the ability to attain that interest in the absence of the infringing act, and the infringing act is the direct cause of that decrease or loss of interest.

3. The extent of damage is determined consistently with the infringing element in the industrial property or plant variety subject matter. The extent of damage is determined based on evidence of damage provided by the parties, including the results of requested appraisal and the statement of damage, which clarifies the grounds for determining and calculating the extent of damage.

Article 83. Loss of property

1. Loss of property is determined according to the degree of decrease or loss in the monetisable value of the protected industrial property or plant variety subject matter.

2. The monetisable value of industrial property or plant variety subject matter specified in Clause 1 of this Article is determined according to one or more of the following grounds:

a) The price of assignment of ownership or transfer of the right to use the industrial property or plant variety subject matter;

b) The value of business capital contribution in the form of industrial property rights or plant variety rights;

c) The value of industrial property rights or plant variety rights within the total assets of the enterprise;

d) The value of investment in creating and developing the industrial property or plant variety subject matter, including marketing, research, advertising, labour, tax and other costs.

Article 84. Moral loss

Loss of honour, dignity, prestige, reputation and other moral losses caused to authors of inventions, industrial designs and layout designs, and authors of plant varieties under the Law on Intellectual Property, arising from infringement of the moral rights of those subjects, resulting in harm to the author's honour and dignity, or decrease or loss of credibility (prestige), reputation and trust due to being misunderstood.

Article 85. Decrease in income and profit

1. Income and profit specified at Point a, Clause 1, Article 204 of the Law on Intellectual Property include:

a) Income and profit obtained from direct use and exploitation of the industrial property or plant variety subject matter;

b) Income and profit obtained from leasing the industrial property or plant variety subject matter;

c) Income and profit obtained from transferring the right to use the industrial property or plant variety subject matter.

2. The amount of decrease in income and profit is determined according to one or more of the following grounds:

a) Direct comparison of actual income and profit before and after the infringing act occurred, corresponding to each type of income specified in Clause 1 of this Article;

b) Comparison of the output and quantity of products, goods and services actually consumed or supplied before and after the infringing act occurred;

c) Comparison of the actual market selling price of products, goods and services before and after the infringing act occurred.

Article 86. Loss of business opportunity

1. Business opportunities specified at Point a, Clause 1, Article 204 of the Law on Intellectual Property include:

a) The actual ability to use and directly exploit the industrial property or plant variety subject matter in business;

b) The actual ability to lease the industrial property or plant variety subject matter to others;

c) The actual ability to transfer the right to use the industrial property or plant variety subject matter, or to assign the industrial property or plant variety subject matter, to others;

d) Other business opportunities lost as a direct result of the infringing act.

2. Loss of business opportunity is damage in the monetisable value of the income the damaged person could have obtained by exercising the abilities specified in Clause 1 of this Article but in fact did not obtain due to the infringing act.

Article 87. Reasonable costs to prevent and remedy damage

Reasonable costs to prevent and remedy damage specified at Point a, Clause 1, Article 204 of the Law on Intellectual Property include costs of detaining, preserving, and storing infringing goods in warehouses and yards, costs of implementing provisional urgent measures, reasonable costs of hiring lawyers and appraisal services, preventing and remedying the infringing act, and costs of notifying and publishing corrections in the mass media relating to the infringing act.

Chapter II

REQUESTS FOR, AND SETTLEMENT OF REQUESTS FOR, HANDLING OF INFRINGING ACTS

Article 88. Exercise of the right to self-protection

1. Organisations and individuals exercise the right to self-protection under Article 198 of the Law on Intellectual Property and as detailed in this Article.

2. The technological measures specified at Point a, Clause 1, Article 198 of the Law on Intellectual Property include:

a) Placing information indicating the grounds of origin, protection title, owner, scope and term of protection and other information on industrial property rights or plant variety rights on products and service facilities (hereinafter in this Article collectively referred to as products), in order to notify that the product is subject matter of protected industrial property rights or plant variety rights and to warn others not to infringe;

b) Using technical means or measures to mark, identify, distinguish and protect protected products.

3. The request to cease an infringing act specified at Point b, Clause 1, Article 198 of the Law on Intellectual Property is made by the subject of industrial property rights or plant variety rights by notifying the infringer in writing. The notice must contain information indicating the grounds of origin, protection title, scope and term of protection, and must fix a reasonable period for the infringer to cease the infringing act.

4. A request to a competent state agency to handle an infringing act specified at Point c, Clause 1, Article 198 of the Law on Intellectual Property must comply with Articles 89, 90, 91, 92, 93 and 94 of this Decree.

Article 89. Request for handling of infringement

1. A request for handling of infringement must contain the following main contents:

a) The date, month and year the request was made;

b) The name and address of the person requesting handling of infringement; the full name of the representative, if the request is made through a representative;

c) The name of the agency receiving the request;

d) The name and address of the infringer; the name and address of the person suspected to be the infringer, in the case of a request to suspend customs procedures for exported or imported goods suspected of infringement;

dd) The name and address of organisations and individuals with related rights and interests (if any);

e) The name and address of witnesses (if any);

g) Summary information on the infringed industrial property rights or plant variety rights: type of right, grounds of origin of the right, summary of the subject matter of the right;

h) Summary information on the infringing act: the date, month, year and place of infringement, a brief description of the infringing product, the infringing act and other information (if any);

i) The content of the request for application of measures to handle infringement;

k) A list of documents and evidence accompanying the request;

l) The signature of the requester and seal (if any).

2. A request for handling of infringement must be accompanied by documents and evidence to prove the request. The documents and evidence must comply with Article 90 of this Decree.

Article 90. Documents and evidence accompanying a request for handling of infringement

1. The person requesting handling of infringement must send with the request for handling of infringement the following documents and evidence to prove the request:

a) Evidence proving that he or she is a subject of rights, if the requester is an owner or a person to whom industrial property rights or plant variety rights have been transferred, inherited or succeeded to;

b) Evidence proving that the infringing act has occurred; evidence giving rise to suspicion that exported or imported goods infringe industrial property rights or plant variety rights, for a request to suspend customs procedures;

c) Other documents and evidence to prove the request.

2. Where the request for handling of infringement is made through an authorised representative, it must be accompanied by a notarised or certified power of attorney; if through a legal representative, it must be accompanied by papers proving the status of the legal representative.

Article 91. Evidence proving the subject of rights

1. For inventions, industrial designs, layout designs, marks and plant varieties, evidence proving the subject of rights is one of the following documents:

a) A copy of the Patent, Utility Solution Patent, Industrial Design Patent, Certificate of Registration of the Layout Design of Semiconductor Integrated Circuits, Mark Registration Certificate or Plant Variety Protection Certificate, submitted with the original for comparison, except where the copy has been certified as prescribed;

b) An extract of the National Register of Industrial Property; an extract of the National Register of Protected Plant Varieties issued by the agency competent to register those subject matters.

2. For marks registered internationally under the Madrid Agreement and the Madrid Protocol designating Vietnam, evidence proving the subject of rights is the certificate of the internationally registered mark protected in Vietnam issued by the state management agency for industrial property, or a copy certified as prescribed, or an extract of the National Register of Industrial Property (Part on Internationally Registered Marks).

3. For industrial designs registered internationally under the Hague Agreement designating Vietnam, evidence proving the subject of rights is a copy of the decision accepting protection of the internationally registered industrial design issued by the state management agency for industrial property, submitted with the original for comparison, or a copy certified as prescribed, or an extract of the National Register of Industrial Property (Part on Internationally Registered Industrial Designs).

4. For geographical indications, evidence proving the subject of rights is one of the following documents:

a) The Geographical Indication Registration Certificate or an extract of the National Register of Industrial Property;

b) The list of organisations and individuals using the geographical indication under Point c, Clause 1, Article 38 of this Decree; or other documents proving the subject of rights under the law of the country of origin, in the case of a foreign geographical indication protected in Vietnam.

5. For other industrial property subject matter, evidence proving the status of subject of rights consists of documents, objects and information on the corresponding grounds for establishing rights under Points a, b and c, Clause 3, Article 6 of the Law on Intellectual Property, specifically prescribed as follows:

a) For business secrets: a description of the content, form of storage, means of protection and manner of obtaining the business secret;

b) For trade names: documents proving the lawful use of the trade name, the business field and business area in which the trade name is used, and the process of use of the trade name;

c) For well-known marks: documents showing the criteria for assessing well-known marks under Article 75 of the Law on Intellectual Property and an explanation of the process of use by which the mark became well-known;

d) For geographical indications protected under international treaties: documents and information in the international treaty on recognition and protection of the geographical indication, or an extract of the National Register of Industrial Property;

dd) For plant varieties: the Plant Variety Protection Certificate that remains valid, the decision granting or re-granting the Plant Variety Protection Certificate; or an extract of the National Register of Protected Plant Varieties and evidence collected from sources under Article 94 of the Civil Procedure Code.

6. Where the person requesting handling of infringement is a person to whom ownership of industrial property or plant variety subject matter has been assigned, to whom the right to use industrial property or plant variety subject matter has been transferred, or who has inherited or succeeded to industrial property or plant variety subject matter, in addition to the documents specified in Clauses 1, 2 and 3 of this Article, he or she must produce the original or a lawful copy of the contract assigning ownership of the industrial property or plant variety subject matter, the contract on use of the industrial property or plant variety subject matter, or a document confirming the right of inheritance or succession to the industrial property or plant variety subject matter. Where the transfer has been recorded in the protection title or in the Certificate of Registration of the Contract on Assignment of Ownership of the industrial property or plant variety subject matter, or the Certificate of Registration of the Contract on Use of the industrial property or plant variety subject matter, those documents are also regarded as evidence proving the status of subject of rights.

Article 92. Evidence proving infringement

1. The following documents and objects are regarded as evidence proving infringement:

a) The original or a lawful copy of descriptive documents, samples and relevant objects showing the protected subject matter;

b) Samples, relevant objects, photographs and video recordings of the product under consideration;

c) A statement explaining and comparing the product under consideration with the protected subject matter;

d) Records, statements and other documents to prove infringement.

2. The documents and objects specified in Clause 1 of this Article must be listed and bear the confirming signature of the person requesting handling of infringement.

Article 93. Responsibility of the person requesting handling of infringement

The person requesting handling of infringement must ensure, and is responsible for, the truthfulness of the information, documents and evidence he or she provides.

Article 94. Filing and settlement of requests for handling of infringement

1. The request for handling of infringement is filed with the agency competent to handle infringement specified in Article 200 of the Law on Intellectual Property (hereinafter referred to as the infringement-handling agency).

2. Upon receiving a request for handling of infringement, if it finds that the request falls within the competence of another agency, the receiving agency shall guide the applicant to file the request with the competent agency or forward the request to the competent agency within 10 days from the date of receipt.

3. Where the request for handling of infringement lacks necessary documents, evidence and objects, the infringement-handling agency shall require the applicant to supplement documents and evidence and fix a reasonable period, not exceeding thirty days, for the person requesting handling of infringement to supplement the necessary documents and evidence.

4. In the following cases, the infringement-handling agency refuses the request for handling of infringement, clearly stating the reasons for refusal:

a) At the end of the period fixed under Clause 3 of this Article, the person requesting handling of infringement has not met the infringement-handling agency's requirement to supplement relevant documents, evidence and objects;

b) The limitation period for handling infringement under law has expired;

c) The verification result of the infringement-handling agency shows that there is no infringement as described in the request for handling of infringement;

d) There is a document of a competent agency stating that there are insufficient grounds to handle the infringement.

5. Where there is a dispute or complaint about the subject of rights, protectability, or scope of protection of industrial property rights or plant variety rights, the agency that received the request for handling of infringement shall guide the applicant to carry out the procedure for requesting settlement of the dispute or complaint at a competent agency within 10 days from the date the dispute arises.

Chapter III

HANDLING OF GOODS INFRINGING INDUSTRIAL PROPERTY RIGHTS AND PLANT VARIETY RIGHTS

Article 95. Determining the value of infringing goods

1. Infringing goods are prescribed as follows:

a) Infringing goods are a part or component (hereinafter referred to as a part) of a product that contains an infringing element and can be circulated as an independent product;

b) Where the infringing element cannot be separated as a part of a product that can be circulated independently under Point a of this Clause, the infringing goods are the entire product containing the infringing element.

2. The value of infringing goods is determined by the infringement-handling agency at the time the infringing act occurred and based on the following grounds in the following order of priority:

a) The listed price of the infringing goods;

b) The actual selling price of the infringing goods;

c) The cost price of the infringing goods, if not yet circulated;

d) The purchase price of the infringing goods.

3. The value of infringing goods is calculated by the infringing part (part or component) of the product specified at Point a, Clause 1 of this Article or by the value of the entire infringing product specified at Point b, Clause 1 of this Article.

4. Where applying the grounds specified in Clause 2 of this Article is inappropriate, or the infringement-handling agency and the finance agency of the same level do not agree on the determination of the value of infringing goods, the valuation is decided by the council for determining the value of infringing goods.

The establishment, composition and working principles of the council for determining the value of infringing goods comply with the law on handling of administrative violations and civil law.

Article 96. Handling of infringing goods

1. For goods counterfeiting marks, goods counterfeiting geographical indications, and raw materials, materials and means mainly used to produce and trade in those goods, the agency competent to handle infringement applies one of the following measures:

a) Distribution or putting into use for non-commercial purposes under Article 97 of this Decree;

b) Destruction under Article 98 of this Decree;

c) Compelling the goods owner, carrier or keeper to remove the infringing elements and take the goods out of the territory of the Socialist Republic of Vietnam, for transit goods counterfeiting marks; re-export, for imported goods counterfeiting marks, and imported raw materials, materials and means mainly used to produce and trade in goods counterfeiting marks; if the infringing element cannot be removed from the goods, raw materials, materials and means mainly used to produce and trade in those goods, the appropriate measure specified in Clause 4 of this Article applies.

For imported goods, and imported raw materials, materials and means mainly used to produce and trade in goods counterfeiting geographical indications, depending on each specific case, the infringement-handling agency applies the measure of compelling removal of the infringing element and the appropriate measure specified in Clause 4 of this Article.

2. For goods infringing industrial property rights or plant variety rights that are not goods counterfeiting marks or goods counterfeiting geographical indications, and raw materials, materials and means mainly used to produce and trade in those goods, the infringement-handling agency applies the measures of compelling the goods owner, carrier or keeper to remove the infringing element from the goods, and applies the appropriate measures specified in Clause 4 of this Article.

For imported goods that infringe industrial property rights or plant variety rights and are not goods counterfeiting marks or goods counterfeiting geographical indications, and raw materials, materials and means mainly used to produce and trade in those goods, the infringement-handling agency applies the appropriate measure specified at Point c, Clause 1 of this Article.

3. Raw materials, materials and means whose sole function is to create or commercially exploit goods counterfeiting marks, goods counterfeiting geographical indications, or goods infringing industrial property rights or plant variety rights, or which in practice are used solely for that purpose, are regarded as raw materials, materials and means mainly used to produce and trade in goods counterfeiting marks, goods counterfeiting geographical indications, or goods infringing industrial property rights or plant variety rights.

4. Depending on each specific case, the infringement-handling agency decides to apply the measures specified at Points a and b, Clause 1 of this Article or, at the request of the subject of rights, compels the organisation or individual producing infringing goods to recall infringing goods already put into that organisation's or individual's distribution channels, in order to apply the measures specified at Points a and b, Clause 1 of this Article or other measures, if it finds them appropriate. In the course of deciding on handling of infringement, the handling agency may consider proposals of the relevant parties on the handling of infringement.

Article 97. Compelling distribution or putting into use for non-commercial purposes

1. Compelling distribution or putting into use for non-commercial purposes of goods counterfeiting marks, goods counterfeiting geographical indications, and goods infringing industrial property rights or plant variety rights must meet the following conditions:

a) The goods have use value, do not harm human health, livestock, crops or the environment, and are not cultural products with harmful content;

b) The infringing element has been removed from the goods;

c) The distribution or use is not for profit and does not unreasonably affect the normal exploitation of the rights of the subject of industrial property rights or plant variety rights, with priority given to humanitarian or charitable purposes or serving social interests;

d) The person to whom the goods are distributed or who receives them for use is not a potential customer of the subject of industrial property rights or plant variety rights.

2. The provisions of Clause 1 of this Article also apply to raw materials, materials and means mainly used to produce and trade in goods counterfeiting marks, goods counterfeiting geographical indications, and goods infringing industrial property rights or plant variety rights.

Article 98. Compulsory destruction

The measure of compulsory destruction of goods counterfeiting marks, goods counterfeiting geographical indications, goods infringing industrial property rights or plant variety rights, and raw materials, materials and means mainly used to produce and trade in those goods, is applied where the conditions for applying the measure of compelling distribution or putting into use for non-commercial purposes specified in Article 97 of this Decree are not met.

Chapter IV

CONTROL OF EXPORTED AND IMPORTED GOODS RELATING TO INDUSTRIAL PROPERTY RIGHTS AND PLANT VARIETY RIGHTS

Article 99. Right to request control of exported and imported goods relating to industrial property rights and plant variety rights

Subjects of industrial property rights and plant variety rights have the right, directly or through a lawful representative, to file a request for inspection and supervision to detect exported or imported goods showing signs of infringing industrial property rights or plant variety rights, or to file a request to suspend customs procedures for exported or imported goods suspected of infringing industrial property rights or plant variety rights.

Article 100. Competence to receive requests

The customs authority is competent to receive requests for inspection and supervision, or requests to suspend customs procedures, under Clause 1, Article 75 of the Law on Customs.

Article 101. Procedure for processing requests

1. Within 20 days from the date of receiving a complete dossier for requesting inspection and supervision of exported and imported goods, or within 02 working hours from the time of receiving a complete dossier for requesting suspension of customs procedures, the customs authority is responsible for considering and issuing a notice accepting the request, if the applicant has performed the obligations in Points a, b and c, Clause 1 and Clause 2, Article 217 of the Law on Intellectual Property. In case of refusal, the customs authority must reply in writing to the requester, clearly stating the reasons.

2. After accepting a request for inspection and supervision of exported and imported goods, the General Department of Customs shall notify the acceptance to provincial and municipal Customs Departments and agencies designated by the General Department of Customs to carry out inspection and supervision. On the basis of the notice of the General Department of Customs stated in this Clause, provincial and municipal Customs Departments and agencies designated by the General Department of Customs shall look up the data on the system in order to organise implementation within their management areas.

3. The Sub-Department of Customs is responsible for inspecting and supervising to detect goods showing signs of infringement, or for issuing a decision to suspend customs procedures on the basis of a request to suspend customs procedures.

Article 102. Order and procedures for handling goods suspected of infringement

1. Where goods showing signs of infringement are detected, at the request of the subject of industrial property rights or plant variety rights or in order to exercise the competence to impose administrative penalties, the customs authority issues a decision to suspend customs procedures and notifies the subject of industrial property rights or plant variety rights and the consignment owner of the suspension of customs procedures for the consignment, clearly stating the names, addresses, fax and telephone numbers of the parties, and the reason and duration of the suspension of customs procedures.

2. The customs authority continues customs procedures for a consignment for which customs procedures were suspended under Clause 3, Article 218 of the Law on Intellectual Property and in the following cases:

a) The decision to suspend customs procedures is stayed or revoked under a decision settling a complaint or denunciation;

b) The applicant requesting suspension of customs procedures withdraws the request.

Article 103. Competence, order and procedures for proactive suspension of customs procedures

1. In the course of inspection, supervision and control, if clear grounds are found to suspect that exported or imported goods are goods counterfeiting marks or goods counterfeiting geographical indications, the Sub-Department of Customs proactively issues a decision to suspend customs procedures for those goods.

2. The Sub-Department of Customs must immediately notify the subject of rights in the mark or geographical indication, if contact information is available, and the importer or exporter, of this suspension.

3. The period of suspension of customs procedures is 10 days from the date the Sub-Department of Customs notifies the subject of rights under Clause 2 of this Article.

4. During the suspension of customs procedures, the Sub-Department of Customs that decided on the suspension is responsible for carrying out the following work:

a) Requiring the importer or exporter or the subject of rights in the mark or geographical indication (if contact information is available) to provide documents relating to the goods (catalogue, appraisal conclusions, documents from abroad, results of handling similar cases, etc.);

b) Taking samples, or permitting relevant organisations and individuals to take samples, for appraisal or supplementary appraisal or re-appraisal at a customs professional organisation or other appraisal organisations as prescribed (if necessary);

c) Coordinating and exchanging with state management agencies for industrial property when a dispute or complaint arises about the subject of rights, protectability, or scope of protection of ownership of the mark or geographical indication, or about the competence to handle the violation;

d) Reporting to the provincial or municipal Customs Department and the General Department of Customs for direction on timely settlement of complex cases.

5. At the end of the period of suspension of customs procedures:

a) Where the customs authority determines that the suspended goods are goods counterfeiting marks or goods counterfeiting geographical indications and the violation falls within the competence of the customs authority, the customs authority imposes administrative penalties for acts infringing rights in marks and geographical indications, goods counterfeiting marks, and goods counterfeiting geographical indications under law. Where it determines that the violation does not fall within the competence of the customs authority, the customs authority hands over the case to other intellectual property rights protection agencies for handling;

b) Where the applicant files a civil lawsuit, the customs authority acts according to the opinion of the Court;

c) Where it receives a document from the state management agency for industrial property rights notifying of a dispute or complaint about the subject of rights, protectability, or scope of protection of ownership of the mark or geographical indication, the customs authority continues customs procedures for the consignment, except where the customs authority has already decided to accept the case under administrative violation handling procedures;

d) Where it determines that the violation shows signs of a crime under the Penal Code, the customs authority transfers it to the competent authority for investigation and prosecution under law;

dd) Where the customs authority decides that the suspended goods are not goods counterfeiting marks or goods counterfeiting geographical indications, the customs authority continues customs procedures for the consignment and notifies the relevant parties.

6. Where proactive suspension of customs procedures is wrongful and causes damage to the goods owner, the Sub-Department of Customs must compensate the goods owner for the damage and pay arising costs as prescribed.

Article 104. Procedures for controlling exported and imported goods relating to industrial property rights and plant variety rights

Procedures for controlling exported and imported goods relating to industrial property rights and plant variety rights comply with this Decree and relevant provisions of the law on customs.

Chapter V

APPRAISAL OF INDUSTRIAL PROPERTY AND PLANT VARIETY RIGHTS

Section 1. APPRAISERS OF INDUSTRIAL PROPERTY AND PLANT VARIETY RIGHTS, AND ORGANISATIONS APPRAISING INDUSTRIAL PROPERTY AND PLANT VARIETY RIGHTS

Article 105. Forms of appraisal activity of appraisers of industrial property and plant variety rights

1. An appraiser of industrial property and plant variety rights may work in an organisation appraising industrial property and plant variety rights, in the name of that organisation, or work independently.

2. The form of activity of the appraiser is recorded in the List of industrial property appraisers and the List of plant variety rights appraisers specified in Articles 109 and 112 of this Decree.

3. Where the appraiser works in the name of an organisation appraising industrial property and plant variety rights, information on the appraiser must be recorded in the List of appraisers of the organisation under the procedure for granting the Certificate of the appraisal organisation.

Article 106. Rights and obligations of appraisers of industrial property and plant variety rights

1. Appraisers of industrial property and plant variety rights have the following rights:

a) To refuse to appraise where related documents are insufficient or of no value for reaching an appraisal conclusion, or the matter is outside the appraisal specialty stated in the Appraiser Card;

b) To refuse to accept appraisal specimens where there is a risk of harm to health or the specimens are too bulky and there is insufficient infrastructure for storage;

c) To use examination results or professional conclusions and expert opinions to serve the appraisal;

d) An appraiser of industrial property and plant variety rights working independently has the right to request agencies, organisations and individuals to provide information and documents relating to the appraised subject matter in order to carry out the appraisal, except where otherwise provided by law;

dd) Other rights under law.

2. Appraisers of industrial property and plant variety rights have the following obligations:

a) To practise in accordance with the appraisal specialty stated in the Appraiser Card;

b) To carry out appraisal according to the principles in Clause 4, Article 201 of the Law on Intellectual Property;

c) To prepare the appraisal dossier; to explain the appraisal conclusion at the request of the person requesting appraisal, organisations and individuals with related rights and interests, or competent agencies;

d) To preserve and store documents and specimens relating to the appraisal case under law;

dd) To independently reach appraisal conclusions and be responsible for his or her own appraisal conclusions; if deliberately giving a wrong appraisal conclusion, causing damage to relevant individuals or organisations, to compensate for the damage;

e) To refuse to appraise where the appraiser has rights or interests related to the appraised subject matter or the case requiring appraisal, or has other reasons affecting the objectivity of the appraisal conclusion, or where other laws require refusal of appraisal;

g) To keep confidential information and documents at the request of the agency, organisation or individual requesting appraisal, and to compensate for damage where disclosure of confidential information causes damage to relevant agencies, organisations and individuals;

h) To be responsible before law for abusing appraiser status and appraisal activities for profit or deliberately giving untruthful appraisal conclusions;

i) To implement the information and reporting regime on appraisal activities every 6 months and annually in writing to the specialised state management agency for industrial property and plant variety rights;

k) Other obligations under law.

Article 107. Rights and obligations of organisations appraising industrial property and plant variety rights

1. Organisations appraising industrial property and plant variety rights have the following rights:

a) To hire appraisers of industrial property and plant variety rights to carry out appraisal case by case;

b) To request agencies, organisations and individuals to provide information and documents relating to the appraised subject matter in order to carry out the appraisal, except where otherwise provided by law;

c) Other rights under law.

2. Organisations appraising industrial property and plant variety rights have the following obligations:

a) To operate in accordance with the appraisal field stated in the Certificate of the appraisal organisation;

b) To carry out appraisal according to the principles in Clause 4, Article 201 of the Law on Intellectual Property;

c) To preserve and store documents and specimens relating to the appraisal case under law;

d) To keep confidential information and documents at the request of the agency, organisation or individual requesting appraisal, and to compensate for damage where disclosure of confidential information causes damage to relevant agencies, organisations and individuals;

dd) To refuse to appraise where other laws require refusal of appraisal;

e) To be responsible before law for abusing appraiser status and appraisal activities for profit or deliberately giving untruthful appraisal conclusions;

g) To implement the information and reporting regime on appraisal activities every 06 months and annually in writing to the state management agency for industrial property rights and plant variety rights;

h) Other obligations under law.

Section 2. CONTENTS OF STATE MANAGEMENT OF INDUSTRIAL PROPERTY APPRAISAL

Article 108. Professional examination for industrial property appraisal

1. The professional examination for industrial property appraisal is conducted to assess the ability to use knowledge and professional expertise to evaluate and draw conclusions on matters relating to industrial property rights.

2. The professional examination for industrial property appraisal is organised as follows:

a) The state management agency for industrial property rights is the agency competent to organise the professional examination for industrial property appraisal;

b) The state management agency for industrial property rights announces on the agency's web portal the conditions for sitting the examination, procedures for submitting dossiers, examination content and expected time and venue of the examination;

c) The examination must be organised within 03 months from the date at least 05 examination applicants have had their registration dossiers accepted under Clause 4 of this Article;

d) The examination result is notified by the state management agency for industrial property rights to the examinee. The examinee has the right to request the state management agency for industrial property rights to re-check this result;

dd) The examination result is valid for 05 years for the purpose of requesting the state management agency for industrial property rights to issue the Industrial Property Appraiser Card.

3. The council for the professional examination for industrial property appraisal is established by the state management agency for industrial property rights and has the task of organising the professional examination for industrial property appraisal under the Regulation on the professional examination for industrial property appraisal promulgated by that agency.

4. Registration to sit the professional examination for industrial property appraisal is carried out as follows:

a) An individual who meets all the following conditions may register to sit the examination under this Article:

a1) Is a Vietnamese citizen with full civil act capacity;

a2) Permanently resides in Vietnam;

a3) Has good moral character;

a4) Holds a university degree or higher in a specialty consistent with the field for which he or she registers to sit the examination;

a5) Has 05 years or more of professional practice in the field for which he or she registers to sit the examination.

b) The dossier for registering to sit the professional examination for industrial property appraisal is submitted to the state management agency for industrial property rights and comprises 01 set of the following documents:

b1) The declaration for registering to sit the professional examination for industrial property appraisal, made using Form No. 01 in Appendix VI of this Decree;

b2) A copy of the university or postgraduate degree (produce the original for comparison, except where the copy has been certified);

b3) A copy of the recruitment decision or labour contract and other documents proving actual professional practice (produce the original for comparison, except where the copy has been certified);

b4) 02 photos of 3 x 4 (cm);

b5) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

c) Within 20 days from the date of receiving the dossier, the state management agency for industrial property rights is responsible for processing the dossier as follows:

c1) Where the dossier is valid, the state management agency for industrial property rights issues a notice accepting the dossier, clearly stating the examination plan that has been fixed, or not yet fixed because the number of examination applicants required under Clause 2 of this Article has not been reached;

c2) Where the dossier has deficiencies, the state management agency for industrial property rights issues a notice of intention to refuse to accept the dossier, clearly stating the reasons and fixing a period of 01 month from the date of the notice for the examination applicant to remedy the deficiencies or object. Where at the end of the fixed period the examination applicant has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the state management agency for industrial property rights shall issue a decision refusing to accept the dossier, clearly stating the reasons for refusal.

Article 109. Issuance, reissuance and revocation of the Industrial Property Appraiser Card

1. The state management agency for industrial property rights is competent to issue, reissue and revoke the Industrial Property Appraiser Card, and to prepare and publish the List of industrial property appraisers under the procedures prescribed in Clauses 2, 3, 4 and 5 of this Article.

2. The issuance of the Industrial Property Appraiser Card is carried out as follows:

a) A person meeting all the conditions in Clause 3, Article 201 of the Law on Intellectual Property is issued the Industrial Property Appraiser Card by the state management agency for industrial property rights if he or she so requests and pays the fees and charges as prescribed. The conditions for being issued the Industrial Property Appraiser Card specified in Clause 3, Article 201 of the Law on Intellectual Property are understood as follows:

a1) The condition “Permanently resides in Vietnam” is understood as having a place of permanent residence in Vietnam under the law on residence;

a2) The condition “Has good moral character” is understood as not having been subject to administrative penalties for violating the law on industrial property or for acts violating professional ethics, and not being subject to criminal prosecution or having been convicted without the conviction having been expunged;

a3) The condition “Holds a university degree or higher in a specialty consistent with the field for which the Appraiser Card is requested” is understood as holding a university or postgraduate degree in natural sciences or engineering sciences for the specialty of appraising inventions and layout designs; and holding a university or postgraduate degree in any field for other appraisal specialties;

a4) The condition “Has 05 years or more of professional practice in the field for which the Appraiser Card is requested” is understood as having directly worked for 05 years or more in dispute settlement, complaints, inspection, examination, legal affairs or legal consultancy on industrial property, scientific research with the title of researcher, or teaching industrial property with the title of lecturer, or persons who have directly worked for 05 years or more in explaining and guiding the implementation of legal provisions, developing regulations, or directly conducting or approving the results of substantive examination of invention applications (including utility solutions), or industrial design applications, or mark applications, or geographical indication applications (including appellations of origin of goods) at national or international industrial property agencies, or persons who have practised industrial property representation services for 05 years or more.

b) The dossier requesting issuance of the Industrial Property Appraiser Card is submitted to the state management agency for industrial property rights and comprises 01 set of the following documents:

b1) The declaration requesting issuance of the Appraiser Card, made using Form No. 02 in Appendix VI of this Decree;

b2) A copy of the identity card (produce the original for comparison, except where the copy has been certified), except where the declaration requesting issuance of the Industrial Property Appraiser Card already contains the citizen identity card number;

b3) 02 photos of 3 x 4 (cm);

b4) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

c) Within 01 month from the date of receiving the dossier, the state management agency for industrial property rights considers the dossier as follows:

c1) Where the dossier is valid, the state management agency for industrial property rights decides to issue the Appraiser Card, clearly stating the full name, date of birth, permanent residence address, identity card/citizen identity card number, Appraiser Card number and appraisal specialty of the card recipient; records the issuance of the Card in the National Register of Industrial Property Appraisal and publishes it in the Industrial Property Gazette and on the web portal of that agency within 02 months from the date of the decision;

c2) Where the dossier is invalid, the state management agency for industrial property rights issues a notice of intention to refuse to accept the dossier, clearly stating the reasons and fixing a period of 01 month from the date of the notice for the requester of the Appraiser Card to remedy the deficiencies or object. Where at the end of the fixed period the requester has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the state management agency for industrial property rights shall issue a decision refusing to issue the Appraiser Card, clearly stating the reasons for refusal;

c3) The Appraiser Card is made using Form No. 04 in Appendix VI of this Decree.

3. The reissuance of the Industrial Property Appraiser Card is carried out as follows:

a) In the following cases, the state management agency for industrial property rights decides to reissue the Industrial Property Appraiser Card if the appraiser so requests and pays the fees and charges as prescribed:

a1) The Industrial Property Appraiser Card is lost, erroneous or damaged (torn, soiled, faded, etc.) to the point of being unusable;

a2) The information recorded in the Industrial Property Appraiser Card under Point c1, Clause 2 of this Article has changed.

b) The appraiser is obliged to request the state management agency for industrial property rights to reissue the Industrial Property Appraiser Card to record again the changes stated at Point a2 of this Clause;

c) The dossier requesting reissuance of the Industrial Property Appraiser Card is submitted to the state management agency for industrial property rights and comprises 01 set of the following documents:

c1) The declaration requesting reissuance of the Appraiser Card, made using Form No. 03 in Appendix VI of this Decree;

c2) A copy of the identity card (produce the original for comparison, except where the copy has been certified), except where the declaration requesting reissuance of the Appraiser Card already contains the citizen identity card number, for the case specified at Point a2 of this Clause;

c3) 02 photos of 3 x 4 (cm);

c4) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the state management agency for industrial property rights).

d) The dossier requesting reissuance of the Industrial Property Appraiser Card is processed as follows:

d1) Within 20 days from the date of receiving the dossier requesting reissuance of the Industrial Property Appraiser Card, the state management agency for industrial property rights considers the dossier in the same order as the procedure for issuing the Industrial Property Appraiser Card specified at Point c, Clause 2 of this Article.

d2) Where the Industrial Property Appraiser Card is erroneous due to the fault of the state management agency for industrial property rights, that agency is responsible for reissuing the Industrial Property Appraiser Card within 05 working days from the date of receiving the request of the card holder, without collecting a fee for reissuance.

4. Revocation of the Industrial Property Appraiser Card is carried out as follows:

a) The Industrial Property Appraiser Card is revoked in the following cases:

a1) There is evidence affirming that the Appraiser Card was issued contrary to law;

a2) The card holder no longer meets the conditions in Clause 3, Article 201 of the Law on Intellectual Property;

a3) The card holder renounces appraisal activities;

a4) The card holder is penalised by the form of revocation of the Appraiser Card by decision of a competent agency.

b) The state management agency for industrial property rights, on its own initiative or at the request of an organisation or individual, shall revoke the card if there are grounds to affirm that the holder of the Industrial Property Appraiser Card falls within one of the cases specified at Point a of this Clause.

c) The dossier requesting revocation of the Industrial Property Appraiser Card is submitted to the state management agency for industrial property rights and comprises 01 set of the following documents:

c1) A request for revocation of the Industrial Property Appraiser Card;

c2) Evidence proving the grounds for proposing revocation of the Industrial Property Appraiser Card.

d) The order of revoking the Industrial Property Appraiser Card is as follows:

d1) Where an organisation or individual requests revocation of the Industrial Property Appraiser Card under Point c of this Clause, within 01 month from the date of receiving the request, the state management agency for industrial property rights shall notify the holder of the Industrial Property Appraiser Card of the request in writing and fix a period of 01 month from the date of the notice for that person to give opinions. On the basis of considering the opinions of the parties, the state management agency for industrial property rights shall issue a decision revoking the Industrial Property Appraiser Card or a decision refusing to revoke the Industrial Property Appraiser Card and send it to the parties;

d2) Where there are grounds to affirm that the holder of the Industrial Property Appraiser Card no longer meets the conditions in Clause 2, Article 201 of the Law on Intellectual Property, the state management agency for industrial property rights shall notify the holder of the Card in writing of the intention to revoke the Industrial Property Appraiser Card and fix a period of 01 month from the date of the notice for that person to give opinions. On the basis of considering the opinions of the holder of the Industrial Property Appraiser Card, the state management agency for industrial property rights shall issue a decision revoking the Card or notify the holder that the Card is not revoked;

d3) Where a competent state agency has issued a decision revoking the Industrial Property Appraiser Card, within 01 month from the date of receiving that decision, the state management agency for industrial property rights shall issue a decision revoking the Industrial Property Appraiser Card;

d4) The decision revoking the Industrial Property Appraiser Card is recorded by the state management agency for industrial property rights in the National Register of Industrial Property Appraisal and published in the Industrial Property Gazette and on the web portal of that agency within 02 months from the date of the decision.

5. Preparing and publishing the List of industrial property appraisers is carried out as follows:

a) The state management agency for industrial property rights prepares the List of industrial property appraisers comprising the information recorded under decisions on issuing, reissuing and revoking the Industrial Property Appraiser Card, and publishes and updates it annually on the web portal of the state management agency for industrial property rights;

b) The state management agency for industrial property rights notifies the local state management agency for industrial property of information on changes relating to the Appraiser Cards of appraisers working for the industrial property appraisal organisations of the corresponding locality, to serve the issuance, reissuance and revocation of the Certificate of appraisal organisation in the locality, within 02 months from the date of the decision.

Article 110. Issuance, reissuance and revocation of the Certificate of an industrial property appraisal organisation

1. The competence to issue, reissue and revoke the Certificate of an industrial property appraisal organisation is as follows:

a) The state management agency for industrial property rights is competent to issue, reissue and revoke the Certificate of an industrial property appraisal organisation under Clauses 2, 3, 4 and 5 of this Article for public non-business units that are science and technology organisations registered to conduct science and technology activities at the Ministry of Science and Technology;

b) The local state management agency for industrial property is competent to issue, reissue and revoke the Certificate of an appraisal organisation under Clauses 2, 3, 4 and 5 of this Article for organisations specified in Clause 2, Article 201 of the Law on Intellectual Property that are registered for business or registered for operation at the competent local state agency.

2. The issuance of the Certificate of an industrial property appraisal organisation is carried out as follows:

a) An organisation meeting the conditions in Clause 2, Article 201 of the Law on Intellectual Property is issued the Certificate of an industrial property appraisal organisation by the state management agency for industrial property rights or the local state management agency for industrial property if it so requests and pays the fees and charges as prescribed;

b) The dossier requesting issuance of the Certificate of an industrial property appraisal organisation is submitted to the state management agency for industrial property rights or the local state management agency for industrial property and comprises 01 set of the following documents:

b1) The declaration requesting issuance of the Certificate of an industrial property appraisal organisation, made using Form No. 05 in Appendix VI of this Decree;

b2) A copy of the recruitment decision or labour contract between the organisation and the industrial property appraiser working for the organisation (produce the original for comparison, except where the copy has been certified);

b3) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the agency competent to settle this procedure).

c) Within 01 month from the date of receiving the dossier, the state management agency for industrial property rights or the local state management agency for industrial property considers the dossier as follows:

c1) Where the dossier is valid, the state management agency for industrial property rights or the local state management agency for industrial property issues a decision granting the Certificate of the appraisal organisation, clearly stating the organisation's full name, trading name, address, code, and appraisal specialty corresponding to the appraisal specialties of the organisation's appraisers, and the list of industrial property appraisers who are members of the organisation; records it in the National Register of Industrial Property Appraisal and publishes it in the Industrial Property Gazette and on the web portal of the state management agency for industrial property rights within 02 months from the date of the decision;

c2) Where the dossier has deficiencies, the state management agency for industrial property rights or the local state management agency for industrial property issues a notice of intention to refuse to accept the dossier, clearly stating the reasons and fixing a period of 01 month from the date of the notice for the submitting organisation to remedy the deficiencies or object. Where at the end of the fixed period the submitting organisation has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the state management agency for industrial property rights or the local state management agency for industrial property issues a decision refusing to issue the Certificate of an industrial property appraisal organisation, clearly stating the reasons for refusal;

c3) The Certificate of an industrial property appraisal organisation is made using Form No. 07 in Appendix VI of this Decree.

3. The reissuance of the Certificate of an industrial property appraisal organisation is carried out as follows:

a) In the following cases, the state management agency for industrial property rights or the local state management agency for industrial property decides to reissue the Certificate of an industrial property appraisal organisation if the industrial property appraisal organisation so requests and pays the fees and charges as prescribed:

a1) The Certificate of an industrial property appraisal organisation is lost, erroneous or damaged (torn, soiled, faded, etc.) to the point of being unusable;

a2) There is a change relating to the information recorded in the Certificate of an industrial property appraisal organisation under Point c1, Clause 2 of this Article.

b) The industrial property appraisal organisation is obliged to carry out the procedure of requesting the agency that issued the Certificate to reissue it in order to record the changes stated at Point c1, Clause 2 of this Article;

c) The dossier requesting reissuance of the Certificate of an industrial property appraisal organisation is submitted to the state management agency for industrial property rights or the local state management agency for industrial property and comprises 01 set of the following documents:

c1) The declaration requesting reissuance of the Certificate of an industrial property appraisal organisation, made using Form No. 06 in Appendix VI of this Decree;

c2) A copy of the amended business registration certificate or operation registration certificate of the industrial property appraisal organisation where the organisation's information has changed (produce the original for comparison, except where the copy has been certified), except where the declaration requesting reissuance of the Certificate already contains the Enterprise code;

c3) A copy of the recruitment decision, labour contract or decision terminating the labour contract between the organisation and the industrial property appraiser working for the organisation, where there is a change in industrial property appraisers (produce the original for comparison, except where the copy has been certified);

c4) A copy of the document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the agency competent to settle this procedure).

d) The dossier requesting reissuance of the Certificate of an industrial property appraisal organisation is processed as follows:

d1) Within 20 days from the date of receiving the dossier requesting reissuance of the Certificate of an industrial property appraisal organisation, the state management agency for industrial property rights or the local state management agency for industrial property considers the dossier in the same order as the procedure for issuing the Certificate of an industrial property appraisal organisation specified at Point c, Clause 2 of this Article;

d2) Where the Certificate of an industrial property appraisal organisation is erroneous due to the fault of the state management agency for industrial property rights or the local state management agency for industrial property that issued it, the issuing agency is responsible for reissuing the Certificate within 05 working days from the date of receiving the request of the industrial property appraisal organisation, without collecting a fee for reissuance.

4. Revocation of the Certificate of an industrial property appraisal organisation is carried out as follows:

a) The Certificate of an industrial property appraisal organisation is revoked in the following cases:

a1) There is evidence affirming that the Certificate was issued contrary to law;

a2) The organisation no longer meets the conditions in Clause 2, Article 201 of the Law on Intellectual Property;

a3) The industrial property appraisal organisation terminates appraisal activities;

a4) The industrial property appraisal organisation violates the law and a competent state agency proposes handling by the form of revoking the Certificate of an industrial property appraisal organisation.

b) The state management agency for industrial property rights or the local state management agency for industrial property, on its own initiative or at the request of an organisation or individual, shall revoke the Certificate of an industrial property appraisal organisation if there are grounds to affirm that the industrial property appraisal organisation falls within one of the cases specified at Point a of this Clause;

c) The dossier requesting revocation of the Certificate of an industrial property appraisal organisation is submitted to the agency that issued that Certificate and comprises 01 set of the following documents:

c1) A request for revocation of the Certificate of an industrial property appraisal organisation;

c2) Evidence proving the grounds for proposing revocation of the Certificate of an industrial property appraisal organisation;

d) The order of revoking the Certificate of an industrial property appraisal organisation is as follows:

d1) Where an organisation or individual requests revocation of the Certificate of an industrial property appraisal organisation under Point c of this Clause, within 01 month from the date of receiving the request, the agency that issued that Certificate shall notify the certificate-holding organisation of the request in writing and fix a period of 01 month from the date of the notice for that organisation to give opinions. On the basis of considering the opinions of the parties, the agency that issued that Certificate shall issue a decision revoking the Certificate or a decision refusing to revoke the Certificate and send it to the parties;

d2) Where there are grounds to affirm that the organisation granted the Certificate of an industrial property appraisal organisation no longer meets the conditions in Clause 2, Article 201 of the Law on Intellectual Property, the agency that issued that Certificate shall notify the certificate-holding organisation in writing of the intention to revoke the Certificate and fix a period of 01 month from the date of the notice for that organisation to give opinions. On the basis of considering the opinions of the certificate-holding organisation, the agency that issued that Certificate shall issue a decision revoking the Certificate or notify the holder that the Certificate is not revoked;

d3) Where a competent state agency has issued a decision revoking the Certificate of an industrial property appraisal organisation, within 01 month from the date of receiving that decision, the agency that issued that Certificate shall issue a decision revoking the Certificate;

d4) The decision revoking the Certificate of an industrial property appraisal organisation is recorded by the state management agency for industrial property rights in the National Register of Industrial Property Appraisal and published in the Industrial Property Gazette and on the web portal of the state management agency for industrial property rights within 02 months from the date of the decision.

5. Preparing and publishing the List of industrial property appraisal organisations is carried out as follows:

a) The state management agency for industrial property rights prepares the List of industrial property appraisal organisations comprising the information recorded under decisions on issuing, reissuing and revoking the Certificate of an industrial property appraisal organisation, and publishes and updates it annually on the web portal of the state management agency for industrial property rights;

b) The local state management agency for industrial property notifies the state management agency for industrial property rights of all information on the issuance, reissuance and revocation of the Certificate of an industrial property appraisal organisation within 01 month from the date of the decision, to serve the preparation of the List of industrial property appraisal organisations under this Clause.

Section 3. CONTENTS OF STATE MANAGEMENT OF PLANT VARIETY RIGHTS APPRAISAL

Article 111. Professional examination for plant variety rights appraisal

1. The professional examination for plant variety rights appraisal is conducted to assess the ability to use knowledge and professional expertise to evaluate and draw conclusions on matters relating to plant variety rights.

2. The professional examination for plant variety rights appraisal is organised as follows:

a) The state management agency for plant variety rights is the agency competent to organise the professional examination for plant variety rights appraisal;

b) The state management agency for plant variety rights announces on its web portal the conditions for sitting the examination, procedures for submitting dossiers, examination content and expected time and venue of the examination;

c) The examination must be organised within 03 months from the date at least 05 examination applicants have had their registration dossiers accepted under Clause 3 of this Article;

d) The examination result is notified by the state management agency for plant variety rights to the examinee. The examinee has the right to request the state management agency for plant variety rights to re-check this result;

dd) The examination result is valid for 05 years for the purpose of requesting the People's Committee of a province or centrally run city to issue the Plant Variety Rights Appraiser Card.

3. The council for the professional examination for plant variety rights appraisal is established by the state management agency for plant variety rights and has the task of organising the professional examination for plant variety rights appraisal under the Regulation on the professional examination for plant variety rights appraisal promulgated by the state management agency for plant variety rights.

Registration to sit the professional examination for plant variety rights appraisal is carried out as follows:

a) An individual who meets all the following conditions may register to sit the examination under this Article:

a1) Is a Vietnamese citizen with full civil act capacity;

a2) Permanently resides in Vietnam;

a3) Has good moral character;

a4) Holds a university degree or higher in a specialty consistent with the field of the examination;

a5) Has 05 years or more of professional practice in that field.

b) The dossier for registering to sit the professional examination for plant variety rights appraisal is submitted to the state management agency for plant variety rights and comprises 01 set of the following documents:

b1) The declaration for registering to sit the professional examination for plant variety rights appraisal, made using Form No. 08 in Appendix VI of this Decree;

b2) A certified copy of the university or postgraduate degree;

b3) A certified copy of the recruitment decision or labour contract and other documents proving actual professional practice;

b4) 02 photos of 3 x 4 (cm);

b5) A document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the agency competent to settle this procedure).

c) Within 15 days from the date of receiving the dossier, the state management agency for plant variety rights is responsible for processing the dossier as follows:

c1) Where the dossier is valid, the state management agency for plant variety rights issues a notice accepting the dossier, clearly stating the examination plan that has been fixed, or not yet fixed because the number of examination applicants required under Clause 2 of this Article has not been reached;

c2) Where the dossier has deficiencies, the state management agency for plant variety rights issues a notice of intention to refuse to accept the dossier, clearly stating the reasons and fixing a period of 01 month from the date of the notice for the examination applicant to remedy the deficiencies or object. Where at the end of the fixed period the examination applicant has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the state management agency for plant variety rights shall issue a decision refusing to accept the dossier, clearly stating the reasons for refusal.

Article 112. Issuance, reissuance and revocation of the Plant Variety Rights Appraiser Card

1. The People's Committee of a province or centrally run city is competent to issue, reissue and revoke the Plant Variety Rights Appraiser Card under the procedures prescribed in Clauses 2, 3 and 4 of this Article.

2. The issuance of the Plant Variety Rights Appraiser Card is carried out as follows:

a) A person meeting all the conditions in Clause 3, Article 201 of the Law on Intellectual Property is issued the Plant Variety Rights Appraiser Card by the People's Committee of a province or centrally run city if he or she so requests and pays the fees and charges as prescribed. The conditions for being issued the Plant Variety Rights Appraiser Card specified in Clause 3, Article 201 of the Law on Intellectual Property are understood as follows:

a1) The condition “Permanently resides in Vietnam” is understood as having a place of permanent residence in Vietnam under the law on residence;

a2) The condition “Has good moral character” is understood as not having been subject to administrative penalties for violating the law on plant varieties or for acts violating professional ethics, and not being subject to criminal prosecution or having been convicted without the conviction having been expunged;

a3) The condition “Holds a university degree or higher in a specialty consistent with the field for which the Appraiser Card is requested” is understood as holding a university or postgraduate degree in crop production, agronomy, crop science or a related field of plant varieties;

a4) The condition “Has 05 years or more of professional practice in the field for which the Appraiser Card is requested” is understood as having directly worked in drafting and guiding the implementation of legal normative documents on plant varieties, settling disputes, complaints, denunciations and inspection on plant varieties at state management agencies for plant variety protection, researching or teaching on plant variety protection at lawfully established and operating research or training organisations, or consulting on the law on plant variety protection in the name of a representative of plant variety rights.

b) The dossier requesting issuance of the Plant Variety Rights Appraiser Card comprises 01 set of the following documents:

b1) The declaration requesting issuance of the Appraiser Card, made using Form No. 09 in Appendix VI of this Decree;

b2) The original or a certified copy of the Certificate of having passed the professional examination on plant variety rights appraisal;

b3) A copy of the university or postgraduate degree in crop production, agronomy or a related field of plant varieties;

b4) A document certified by a competent agency that the dossier submitter has directly worked in the professional field of plant varieties for 05 years or more;

b5) 02 photos of 3 x 4 (cm);

b6) A document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the agency competent to settle this procedure);

c) Within 01 month from the date of receiving the dossier, the People's Committee of the province or centrally run city considers the dossier as follows:

c1) Where the dossier is valid, the People's Committee of the province or centrally run city issues a decision granting the Appraiser Card, clearly stating the full name, permanent residence address, identity card/citizen identity card number and appraisal specialty of the card recipient;

c2) Where the dossier is invalid, the People's Committee of the province or centrally run city issues a notice of intention to refuse to accept the dossier, clearly stating the reasons and fixing a period of 01 month from the date of the notice for the requester of the Appraiser Card to remedy the deficiencies or object. Where at the end of the fixed period the requester has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the People's Committee of the province or centrally run city issues a decision refusing to issue the Appraiser Card, clearly stating the reasons for refusal;

c3) The Plant Variety Rights Appraiser Card is made using Form No. 10 in Appendix VI of this Decree.

3. The reissuance of the Plant Variety Rights Appraiser Card is carried out as follows:

a) In the following cases, the People's Committee of the province or centrally run city decides to reissue the Plant Variety Rights Appraiser Card if the appraiser so requests and pays the fees and charges as prescribed:

a1) The Plant Variety Rights Appraiser Card is lost, erroneous or damaged (torn, soiled, faded, etc.) to the point of being unusable;

a2) The information recorded in the Plant Variety Rights Appraiser Card under Point c1, Clause 2 of this Article has changed;

b) The appraiser is obliged to request the People's Committee of the province or centrally run city to reissue the Plant Variety Rights Appraiser Card to record again the changes stated at Point a2 of this Clause.

c) The dossier requesting reissuance of the Plant Variety Rights Appraiser Card is submitted to the People's Committee of the province or centrally run city and comprises 01 set of the following documents:

c1) The declaration requesting reissuance of the Appraiser Card, made using Form No. 09 in Appendix VI of this Decree;

c2) 02 photos of 3 x 4 (cm);

c3) A document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the agency competent to settle this procedure).

d) The dossier requesting reissuance of the Plant Variety Rights Appraiser Card is processed as follows:

d1) Within 15 days from the date of receiving the dossier requesting reissuance of the Plant Variety Rights Appraiser Card, the People's Committee of the province or centrally run city considers the dossier in the same order as the procedure for issuing the Plant Variety Rights Appraiser Card specified at Point c, Clause 2 of this Article;

d2) Where the Plant Variety Rights Appraiser Card is erroneous due to the fault of the People's Committee of the province or centrally run city, that People's Committee is responsible for reissuing the Plant Variety Rights Appraiser Card within 05 working days from the date of receiving the request of the card holder, without collecting a fee for reissuance.

4. Revocation of the Plant Variety Rights Appraiser Card is carried out as follows:

a) The Plant Variety Rights Appraiser Card is revoked in the following cases:

a1) There is evidence affirming that the Appraiser Card was issued contrary to law;

a2) The card holder no longer meets the conditions in Clause 3, Article 201 of the Law on Intellectual Property;

a3) The card holder renounces appraisal activities;

a4) The card holder is penalised by the form of revocation of the Appraiser Card by decision of a competent agency.

b) The People's Committee of the province or centrally run city, on its own initiative or at the request of an organisation or individual, shall revoke the card if there are grounds to affirm that the holder of the Plant Variety Rights Appraiser Card falls within one of the cases specified at Point a of this Clause.

c) The dossier requesting revocation of the Plant Variety Rights Appraiser Card comprises 01 set of the following documents:

c1) A request for revocation of the Plant Variety Rights Appraiser Card;

c2) Evidence proving the grounds for proposing revocation of the Plant Variety Rights Appraiser Card.

d) The order and procedures for revoking the Plant Variety Rights Appraiser Card are as follows:

d1) Where an organisation or individual requests revocation of the Plant Variety Rights Appraiser Card under Point c of this Clause, within 01 month from the date of receiving the request, the People's Committee of the province or centrally run city shall notify the holder of the Plant Variety Rights Appraiser Card of the request in writing and fix a period of 01 month from the date of the notice for that person to give opinions. On the basis of considering the opinions of the parties, the People's Committee of the province or centrally run city shall issue a decision revoking the Plant Variety Rights Appraiser Card or a decision refusing to revoke the Plant Variety Rights Appraiser Card and send it to the parties;

d2) Where there are grounds to affirm that the holder of the Plant Variety Rights Appraiser Card no longer meets the conditions in Clause 2, Article 201 of the Law on Intellectual Property, the People's Committee of the province or centrally run city shall notify the holder of the Card in writing of the intention to revoke the Plant Variety Rights Appraiser Card and fix a period of 01 month from the date of the notice for that person to give opinions. On the basis of considering the opinions of the holder of the Plant Variety Rights Appraiser Card, the People's Committee of the province or centrally run city shall issue a decision revoking the Card or notify the holder that the Card is not revoked;

d3) Where a competent state agency has issued a decision revoking the Plant Variety Rights Appraiser Card, within 01 month from the date of receiving that decision, the People's Committee of the province or centrally run city shall issue a decision revoking the Plant Variety Rights Appraiser Card.

5. Preparing and publishing the List of plant variety rights appraisers and notifying changes to information relating to the Appraiser Card is carried out as follows:

a) The People's Committee of the province or centrally run city prepares the List of plant variety rights appraisers according to decisions on issuing and reissuing the Plant Variety Rights Appraiser Card, and publishes it on the web portal of the People's Committee of the province or centrally run city within 02 months from the date of the decision;

b) The People's Committee of the province or centrally run city notifies the state management agency for plant variety rights of the List of appraisers and of changes relating to the Appraiser Cards of appraisers working for the plant variety rights appraisal organisations of the corresponding locality, to serve the monitoring of issuance, reissuance and revocation of the Certificate of appraisal organisation in the locality.

Article 113. Issuance, reissuance and revocation of the Certificate of a plant variety rights appraisal organisation

1. The People's Committee of a province or centrally run city is competent to issue, reissue and revoke the Certificate of a plant variety rights appraisal organisation, and to prepare and publish the List of plant variety rights appraisal organisations under Clauses 2, 3, 4 and 5 of this Article.

2. The issuance of the Certificate of a plant variety rights appraisal organisation is carried out as follows:

a) An organisation meeting the conditions in Clause 2, Article 201 of the Law on Intellectual Property is issued the Certificate of a plant variety rights appraisal organisation by the People's Committee of the province or centrally run city if it so requests and pays the fees and charges as prescribed;

b) The dossier requesting issuance of the Certificate of a plant variety rights appraisal organisation comprises 01 set of the following documents:

b1) The declaration requesting issuance of the Certificate of a plant variety rights appraisal organisation, made using Form No. 11 in Appendix VI of this Decree;

b2) A certified copy of the recruitment decision or labour contract between the organisation and the plant variety rights appraiser working for the organisation;

b3) A document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the agency competent to settle this procedure).

c) Within 01 month from the date of receiving the dossier, the People's Committee of the province or centrally run city considers the dossier as follows:

c1) Where the dossier is valid, the People's Committee of the province or centrally run city issues a decision granting the Certificate of the appraisal organisation, clearly stating the organisation's full name, trading name, address, and the List of plant variety rights appraisers who are members of the organisation; records it in the List of appraisal organisations and publishes it on the web portal of the People's Committee of the province or centrally run city within 05 working days from the date of the decision;

c2) Where the dossier has deficiencies, the People's Committee of the province or centrally run city issues a notice of intention to refuse to accept the dossier, clearly stating the reasons and fixing a period of 01 month from the date of the notice for the submitting organisation to remedy the deficiencies or object. Where at the end of the fixed period the submitting organisation has not remedied the deficiencies or has remedied them unsatisfactorily, has made no objection, or has made an objection that is not well-founded, the People's Committee of the province or centrally run city issues a decision refusing to issue the Certificate of a plant variety rights appraisal organisation, clearly stating the reasons for refusal;

c3) The Certificate of a plant variety rights appraisal organisation is made using Form No. 12 in Appendix VI of this Decree.

3. The reissuance of the Certificate of a plant variety rights appraisal organisation is carried out as follows:

a) In the following cases, the People's Committee of the province or centrally run city decides to reissue the Certificate of a plant variety rights appraisal organisation if the plant variety rights appraisal organisation so requests and pays the fees and charges as prescribed:

a1) The Certificate of a plant variety rights appraisal organisation is lost, erroneous or damaged (torn, soiled, faded, etc.) to the point of being unusable;

a2) There is a change relating to the information recorded in the Certificate of a plant variety rights appraisal organisation under Point c1, Clause 2 of this Article.

b) The plant variety rights appraisal organisation is obliged to carry out the procedure of requesting the agency that issued the Certificate to reissue it if it still wishes to continue appraisal activities;

c) The dossier requesting reissuance of the Certificate of a plant variety rights appraisal organisation comprises 01 set of the following documents:

c1) The declaration requesting reissuance of the Certificate of a plant variety rights appraisal organisation, made using Form No. 11 in Appendix VI of this Decree;

c2) A certified copy of the amended business registration certificate or operation registration certificate of the plant variety rights appraisal organisation where the organisation's information has changed, except where the declaration requesting reissuance of the Certificate already contains the Enterprise code;

c3) A certified copy of the recruitment decision, labour contract or decision terminating the labour contract between the organisation and the plant variety rights appraiser working for the organisation, where there is a change in plant variety rights appraisers;

c4) A document proving payment of fees and charges (where fees and charges are paid via postal services or directly into the account of the agency competent to settle this procedure).

d) The dossier requesting reissuance of the Certificate of a plant variety rights appraisal organisation is processed as follows:

d1) Within 15 days from the date of receiving the dossier requesting reissuance of the Certificate of a plant variety rights appraisal organisation, the People's Committee of the province or centrally run city considers the dossier in the same order as the procedure for issuing the Certificate of a plant variety rights appraisal organisation specified at Point c, Clause 2 of this Article.

d2) Where the Certificate of a plant variety rights appraisal organisation is erroneous due to the fault of the People's Committee of the province or centrally run city that issued the Certificate, the issuing agency is responsible for reissuing the Certificate within 05 working days from the date of receiving the request of the plant variety rights appraisal organisation, without collecting a fee for reissuance.

4. Revocation of the Certificate of a plant variety rights appraisal organisation is carried out as follows:

a) The Certificate of a plant variety rights appraisal organisation is revoked in the following cases:

a1) There is evidence affirming that the Certificate of a plant variety rights appraisal organisation was issued contrary to law;

a2) The organisation no longer meets the conditions in Clause 2, Article 201 of the Law on Intellectual Property;

a3) The plant variety rights appraisal organisation terminates appraisal activities;

a4) The plant variety rights appraisal organisation violates the law and a competent state agency proposes handling by the form of revoking the Certificate of a plant variety rights appraisal organisation.

b) The People's Committee of the province or centrally run city, on its own initiative or at the request of an organisation or individual, shall revoke the Certificate of a plant variety rights appraisal organisation if there are grounds to affirm that the plant variety rights appraisal organisation falls within one of the cases specified at Point a of this Clause;

c) The dossier requesting revocation of the Certificate of a plant variety rights appraisal organisation comprises 01 set of the following documents:

c1) A request for revocation of the Certificate of a plant variety rights appraisal organisation;

c2) Evidence proving the grounds for proposing revocation of the Certificate of a plant variety rights appraisal organisation;

d) The order and procedures for revoking the Certificate of a plant variety rights appraisal organisation are as follows:

d1) Where an organisation or individual requests revocation of the Certificate of a plant variety rights appraisal organisation under Point c of this Clause, within 01 month from the date of receiving the request, the agency that issued that Certificate shall notify the certificate-holding organisation of the request in writing and fix a period of 01 month from the date of the notice for that organisation to give opinions. On the basis of considering the opinions of the parties, the agency that issued that Certificate shall issue a decision revoking the Certificate of a plant variety rights appraisal organisation or a decision refusing to revoke it and send it to the parties;

d2) Where there are grounds to affirm that the organisation granted the Certificate of a plant variety rights appraisal organisation no longer meets the conditions in Clause 2, Article 201 of the Law on Intellectual Property, the agency that issued that Certificate shall notify the certificate-holding organisation in writing of the intention to revoke the Certificate and fix a period of 01 month from the date of the notice for that organisation to give opinions. On the basis of considering the opinions of the certificate-holding organisation, the agency that issued that Certificate shall issue a decision revoking the Certificate or notify the holder that the Certificate is not revoked;

d3) Where a competent state agency has issued a decision revoking the Certificate of a plant variety rights appraisal organisation, within 01 month from the date of receiving that decision, the agency that issued that Certificate shall issue a decision revoking the Certificate;

d4) The decision revoking the Certificate of a plant variety rights appraisal organisation is published by the People's Committee of the province or centrally run city on its web portal within 02 months from the date of the decision.

5. The People's Committee of the province or centrally run city prepares the List of plant variety rights appraisal organisations specified in this Article according to decisions on issuing, reissuing and revoking the Certificate of a plant variety rights appraisal organisation. The List of plant variety rights appraisal organisations is published on the web portal of the People's Committee of the province or centrally run city. The People's Committee of the province or centrally run city updates the state management agency for plant variety rights on the List of rights appraisal organisations and changes relating to plant variety rights appraisal organisations in the corresponding locality, to serve the recording of information in the National Register of the List of plant variety rights appraisal organisations.

Section 4. INDUSTRIAL PROPERTY APPRAISAL AND PLANT VARIETY RIGHTS APPRAISAL ACTIVITIES

Article 114. Content and fields of industrial property and plant variety rights appraisal

1. Industrial property and plant variety rights appraisal includes the following contents:

a) Determining the scope of protection of industrial property or plant variety subject matter;

b) Determining whether the subject matter under consideration meets the conditions to be regarded as an element infringing industrial property rights or plant variety rights under Articles 74 to 80 of this Decree;

c) Determining whether there is identity, equivalence, similarity, confusion, difficulty of distinction or copying between the subject matter under consideration and the protected subject matter;

d) Determining the value of industrial property rights or plant variety rights by the valuation method prescribed in the law on prices; determining the value of damage under Articles 204 and 205 of the Law on Intellectual Property.

2. Appraisal of industrial property and plant variety rights by field, as specified in the Law on Intellectual Property, includes:

a) The field of industrial property appraisal, comprising the following specialties:

a1) Appraisal of inventions and layout designs;

a2) Appraisal of industrial designs;

a3) Appraisal of marks and geographical indications;

a4) Appraisal of other industrial property rights.

b) The field of appraisal of plant variety rights.

Article 115. Rights and obligations of persons requesting appraisal of industrial property and plant variety rights

1. Persons requesting appraisal of industrial property and plant variety rights have the following rights:

a) To require the appraisal organisation or appraiser to reply with the appraisal conclusion in the requested content and time limit;

b) To require the appraisal organisation or appraiser to explain the appraisal conclusion;

c) To request supplementary appraisal or re-appraisal under Article 120 of this Decree;

d) To agree on the price of the appraisal service.

2. Persons requesting appraisal have the following obligations:

a) To provide fully and truthfully the documents, evidence and information relating to the appraised subject matter at the request of the appraisal organisation or appraiser;

b) To present clearly and specifically the matters within the content requested to be appraised;

c) To pay appraisal costs as agreed; to advance appraisal costs when requested by the appraisal organisation or appraiser;

d) To take back the appraised subject matter when requested by the appraisal organisation or appraiser.

Article 116. Requests for appraisal of industrial property and plant variety rights

1. Organisations and individuals having the right to request appraisal of industrial property and plant variety rights include:

a) Subjects of industrial property rights and plant variety rights;

b) Organisations and individuals subject to a request for handling of infringement or to complaints or denunciations relating to industrial property rights or plant variety rights;

c) Other organisations and individuals with rights and interests related to a dispute, infringement, complaint or denunciation concerning industrial property rights or plant variety rights.

2. The organisations and individuals specified in Clause 1 of this Article have the right, in person or by authorising other organisations and individuals, to request an industrial property and plant variety rights appraisal organisation, or an industrial property and plant variety rights appraiser, to carry out appraisal.

3. An independently working appraiser or an appraisal organisation receives the dossier requesting appraisal, estimates appraisal costs, negotiates and concludes an appraisal contract with the organisation or individual requesting appraisal, except where appraisal is refused as prescribed.

4. A request for appraisal must be made in an appraisal service contract between the person requesting appraisal and the appraisal organisation or the appraiser.

5. The appraisal service contract may contain the following contents:

a) The name and address of the organisation or individual requesting appraisal;

b) The name and address of the appraisal organisation or appraiser;

c) The content of the appraisal request;

d) Relevant evidence, documents and objects;

dd) The time limit for delivering the appraisal conclusion;

e) Rights and obligations of the parties;

g) The place and time of carrying out the appraisal;

h) The cost of appraisal and method of payment;

i) Acceptance and liquidation of the contract;

k) Liability for compensation of damage; method of dispute settlement.

Article 117. Delivery, receipt and return of appraised subject matter of industrial property and plant variety rights

Where a request for appraisal is accompanied by the subject matter to be appraised, the delivery, receipt and return of the appraised subject matter must be recorded in a minute with the following main contents:

1. The time and place of delivery, receipt and return of the appraised subject matter.

2. The name and address of the party delivering and the party receiving the appraised subject matter, or of their representative.

3. The name of the appraised subject matter; relevant documents or objects.

4. The condition and manner of preserving the appraised subject matter at delivery, receipt and return.

5. The signature of the party delivering and the party receiving the appraised subject matter, or of the representative where a third party is authorised to request appraisal.

Article 118. Taking appraisal samples of industrial property and plant variety rights

1. The appraisal organisation or appraiser may itself take appraisal samples (specific objects being the infringing element and the protected industrial property or plant variety subject matter) or require the person requesting appraisal to provide appraisal samples. Taking appraisal samples must be recorded in a minute witnessed and signed for confirmation by the relevant parties.

2. The delivery, receipt and return of appraisal samples are carried out similarly to Article 117 of this Decree.

Article 119. Carrying out appraisal of industrial property and plant variety rights

1. Appraisal of industrial property and plant variety rights may be carried out by one or several appraisers of industrial property and plant variety rights. Individual appraisal is appraisal carried out by one appraiser. Collective appraisal is appraisal carried out by two or more appraisers.

2. In individual appraisal, the appraiser carries out the entire appraisal and is responsible for his or her appraisal conclusion. In collective appraisal on matters in the same professional field, the appraisers jointly carry out the appraisal, sign the joint appraisal conclusion document and are jointly responsible for the appraisal conclusion; if there are differing opinions, each appraiser separately records his or her conclusion in the joint appraisal conclusion document and is responsible for that opinion. In collective appraisal on matters in different professional fields, each appraiser carries out his or her own part and is responsible for his or her own appraisal conclusion.

Article 120. Supplementary appraisal and re-appraisal of industrial property and plant variety rights

1. Supplementary appraisal is carried out where the appraisal conclusion is incomplete or unclear on the contents to be appraised or new circumstances requiring clarification arise. The request for supplementary appraisal and its implementation must comply with the provisions for the first appraisal.

2. Re-appraisal is carried out where the person requesting appraisal disagrees with the appraisal result or there is a contradiction between appraisal conclusions on the same issue requiring appraisal. Re-appraisal may be carried out by the appraisal organisation or appraiser that appraised previously or by another appraisal organisation or appraiser at the request of the person requesting appraisal.

3. Where appraisal conclusions differ from each other, or an appraisal conclusion differs from the professional opinion of the state management agency for industrial property and plant variety rights on the same issue requiring appraisal, the person requesting appraisal may continue to request another appraisal organisation or appraiser to carry out re-appraisal.

4. Where necessary, when appraising industrial property and plant variety rights, the appraisal organisation may establish an Advisory Council on appraisal of industrial property and plant variety rights to obtain professional opinions on the issue to be appraised. Matters relating to the Advisory Council on appraisal are carried out as follows:

a) The appraisal organisation selects Council members relevant to the appraisal specialty and issues a decision establishing the Advisory Council on appraisal of industrial property and plant variety rights. The Advisory Council on appraisal of industrial property and plant variety rights comprises a chairperson and members. The number of members of the Advisory Council must be an odd number and at least 03 members.

b) The Advisory Council on appraisal of industrial property and plant variety rights operates on democratic principles, with open voting on professional opinions. Members of the Advisory Council discuss professional matters collectively, and members' opinions must be recorded in the minutes of the Advisory Council's meeting.

c) The entire advisory process of the Advisory Council on appraisal of industrial property and plant variety rights must be fully and truthfully recorded in working minutes. The minutes must bear the signatures of the chairperson and members of the Council and be kept in the appraisal file.

Article 121. Appraisal conclusion documents on industrial property and plant variety rights

1. The appraisal conclusion on industrial property and plant variety rights specified in Clause 5, Article 201 of the Law on Intellectual Property must be made in writing.

2. The appraisal conclusion document on industrial property and plant variety rights specified in Clause 1 of this Article must contain the following main contents:

a) The name and address of the appraisal organisation or appraiser;

b) The name and address of the organisation or individual requesting appraisal;

c) The subject matter, content and scope of appraisal;

d) The method of carrying out the appraisal;

dd) The appraisal conclusion;

e) The time and place of carrying out and completing the appraisal.

3. An independently working appraiser or an appraisal organisation must send the appraisal conclusion document to the organisation or individual requesting appraisal within the time limit agreed in the appraisal contract. In the case of independent appraisal, the appraiser carrying out the appraisal must sign the appraisal conclusion document and is responsible for that appraisal conclusion. In the case of appraisal carried out by an organisation, the appraiser carrying out the appraisal and the legal representative of the appraisal organisation must jointly sign and affix the seal on the appraisal conclusion document and are responsible for the appraisal conclusion.

4. Where additional time is necessary to carry out the appraisal, the independently working appraiser or the appraisal organisation must promptly notify the organisation or individual requesting appraisal in writing.

Article 122. Price of industrial property and plant variety rights appraisal services

The price of industrial property and plant variety rights appraisal services is agreed by the parties.

Part Five

IMPLEMENTATION PROVISIONS

Article 123. Transitional provisions

1. The processing of applications for secret inventions filed before the effective date of this Decree for which no decision has been made to grant or refuse to grant a protection title is carried out under Articles 48 to 52 of this Decree.

2. The processing of Hague applications designating Vietnam that were published by the International Bureau before the effective date of this Decree but for which no decision accepting or refusing protection has been made is carried out under this Decree and the Hague Agreement.

3. The processing of Hague applications of Vietnamese origin filed with the state management agency for industrial property rights before the effective date of this Decree but not yet forwarded to the International Bureau is carried out under this Decree and the Hague Agreement.

Article 124. Effect of the Decree

1. This Decree takes effect from 23 August 2023.

2. This Decree replaces Decree No. 103/2006/ND-CP dated 22 September 2006 detailing and guiding the implementation of a number of articles of the Law on Intellectual Property with respect to industrial property; replaces the provisions on protection of rights in the field of industrial property rights and plant variety rights and on state management of intellectual property in Decree No. 105/2006/ND-CP dated 22 September 2006 detailing and guiding the implementation of a number of articles of the Law on Intellectual Property with respect to protection of intellectual property rights and state management of intellectual property, Decree No. 119/2010/ND-CP dated 30 October 2010 amending and supplementing a number of articles of Decree No. 105/2006/ND-CP dated 22 September 2006 detailing and guiding the implementation of a number of articles of the Law on Intellectual Property with respect to protection of intellectual property rights and state management of intellectual property, Decree No. 122/2010/ND-CP dated 31 October 2010 amending and supplementing a number of articles of Decree No. 103/2006/ND-CP dated 22 September 2006 detailing and guiding the implementation of a number of articles of the Law on Intellectual Property with respect to industrial property, and Article 1 of Decree No. 154/2018/ND-CP dated 09 November 2018 amending, supplementing and abolishing a number of provisions on investment and business conditions in the field of state management of the Ministry of Science and Technology and a number of provisions on specialised inspection.

Article 125. Responsibility for implementation

Ministers, heads of ministerial-level agencies, heads of agencies attached to the Government, and Chairpersons of People's Committees of provinces and centrally run cities are responsible for implementing this Decree.