For years, the Intellectual Property Department under the Ministry of Science and Technology have been criticized for its supreme authority over both grant of patent protecting industrial property rights and adjudication disputes. However, its supreme pow
In 2004, the Intellectual Property Department issued a decision to stop Vinh Tien Company from using the brand name “Vang Do Da Lat” (Da Lat Red Wine) since it was similar to the brand name “Vang Da Lat” (Da Lat Wine) of Lam Dong Foodstuffs Joint Stock Company which was previously protected by the Intellectual Property Department.
Vinh Tien Company felt angry with this decision. With the exclusive right granted to Lam Dong Foodstuffs Joint Stock Company by the Intellectual Property Department, other companies, including Vinh Tien Company, are not allowed to use the brand name of “Da Lat Wine”.
Many others had felt the same bitter taste as the Intellectual Property Department was entitled to make final decision on infringements of trademarks and copyright. Protest was impossible. However, its supreme authority over property rights has come to an end since the issuance of the Intellectual Property (IP) Law and accompanying documents on implementing the IPL by the Ministry of Science and Technology.
Under the new law, the Intellectual Property Department was taken away the authority to adjudicate violations of IP rights. This significant change made the IPL to be compatible with laws of other countries and the spirit of international agreements, among which the most important is the Agreement on Trade-Related Aspects of Intellectual Property Right (TRIPs) within WTO’s framework.
Since the issuance of Decree No.105/ND-CP dated September 22, 2006 by the Government, detailing and guiding the implementation of the Intellectual Property Law regarding protection of IP rights and state management of IP, the Intellectual Property Department stopped examination of IP requested by enterprises and other state administrative bodies.
Accordingly, determination on legal situation; possibility of intellectual properties protection; the scope of industrial property rights; infringements… is no longer carried out by the Intellectual Property Department. Instead, the department is restricted to provision of information about industrial designs and trademarks to facilitate application for licenses for production, import and circulation of pharmaceutical products, plant protection drugs, motorbikes…
Administrative bodies (market management, customs, courts, economic polices, etc.) would replace the Intellectual Property Department to make final decision and evaluation on IP rights.
This generated pros and cons. An officer from HCM City’s market management force strongly disagreed because she believed that administrative bodies were not qualified enough to assess and determine whether a trademark/industrial design to violate IP rights.
On the contrary, an official from another administrative body said that determination of the Intellectual Property Department were very time-consuming for administrative bodies.
According to Truong Thuy Trang, vice director of HCM City’s Department of Science and Technology (DOST), changes in IP rights requires higher responsibilities of State administrative bodies. They have to take full responsibilities for their decisions although they can receive consultation from specialized agencies.
The new IP Law limits either power or responsibilities of the Intellectual Property Department. Also, it brings opportunities to business community, allowing private sector to carry out assessment services.
Pham Hong Quat, an expert in IP from the Ministry of Science and Technology said that the socialization of assessment activities, which is legalized, will create opportunities for independent assessment organizations.