Friday, March 23, 2018

Lý Sơn Island brand gets approval

Garlic of Lý Sơn Island is displayed at a shop in Quảng Ngãi Province. VNS Photo Nguyễn Văn Định

QUẢNG NGÃI — The National Office of Intellectual Property of Việt Nam under the Ministry of Science and Technology has recognised the brand ownership for the products of Lý Sơn Island including garlic, onion, seafood, garlic wine, dried seafood and seaweed.

The director of the Lý Sơn Island Company, Nguyễn Văn Định said the ownership of the trademark would be valied for 10 years.

He said all of the company’s products are grown and produced on the island, 30km off the coast of the central Quảng Ngãi Province.

“It took us three years to complete the application procedure for the trademark recognition. However, it’s the first time that made-in-Lý Sơn seafood and aquaculture products have their own brand nationwide,” Định told Việt Nam News in a phone interview.

“The ownership will be a legal protection of the island’s products and improve the value of aquaculture and farm produce in the Việt Nam market,” he said.

He said many shops and traders have used the Lý Sơn trademark without permission for their products.

Định confirmed that his company has nine official agents in HCM City, Hà Nội, Bà Rịa-Vũng Tàu, Cần Thơ, Đắk Lắk, Ninh Bình, Đà Nẵng, Quảng Ngãi and Lý Sơn Island.

Last year, 40 tonnes of Lý Sơn garlic were exported to Thailand.

The company, in co-operation with the island district and the island’s farmers association, plans to produce organic black garlic for export to Japan, the US and Asian countries, as well as producing garlic oil.

Lý Sơn garlic has a distinctive flavour and is in high demand at home and abroad. But this year only 250ha of garlic and onion were planted due to serious drought on the island.

Lý Sơn Island, known as the Kingdom of Garlic in Việt Nam, has 21,000 inhabitants, of whom 73 per cent makes their living from farming garlic and spring onion, and fishing. — VNS

Protection of IPRs under TPP Agreement: Some challenges for Việt Nam

The Trans-Pacific Partnership (TPP) Agreement was officially concluded on February 4, 2016 by 12 countries, including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the US and Việt Nam.

The issue of intellectual property (IP) is dealt with in Chapter 18 and the annexes of the TPP, which is believed to pose many challenges for Việt Nam, in terms of both legal aspects and IPR enforcement. This article analyzes some of these challenges.

Obligation to join IP treaties

Following the approach employed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the TPP Agreement requires its parties to accede to or ratify a number of important IP treaties. Based on the time the parties have to perform this obligation, the treaties listed in the TPP Agreement are divided into two groups.

The first group consists of the treaties which the parties affirm they have ratified or acceded to, namely the Patent Co-operation Treaty (PCT 1979), the Paris Convention for the Protection of Industrial Property (1967), and the Berne Convention for the Protection of Literary and Artistic Works (1971). This requirement is higher than that of the TRIPS Agreement, as the latter only requires compliance with the economic contents of the above treaties. Việt Nam had joined these three treaties before it participated in the TPP negotiations. The second group comprises the treaties which the parties must ratify or accede to by the date the TPP Agreement becomes effective for each party, taking into account the transitional period applied to some Parties. These treaties include (i) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989); the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980; the International Convention for the Protection of New Varieties of Plants (1991); the Singapore Treaty on the Law of Trademarks (2006); the WIPO Copyright Treaty (WCT 1996); and the WIPO Performances and Phonograms Treaty (WPPT 1996).

Among the above treaties, Việt Nam has not yet joined the Budapest Treaty, the Singapore Treaty on the Law of Trademarks, the WCT and the WPPT. The time limit for Việt Nam to join the Budapest Treaty is two years, and that for the WPPT is three years.

Requirements on transparency in disclosure of IP information

Requirements on transparency in the IP field are set out in Article 18.9 and other articles of the TPP Agreement, such as Article 18.73 and Article 18.45. Accordingly, each party must endeavor to make available on the Internet its laws, regulations, procedures and administrative rulings of general application concerning the protection and enforcement of IPRs. Each party must, subject to its law, endeavor to make available on the Internet information that it makes public concerning applications for trademarks, geographical indications, industrial designs, patents and plant variety rights. Each party must also make available on the Internet information that it makes public concerning registered or granted trademarks, geographical indications, industrial designs, patents and plant variety rights, sufficient to enable the public to become acquainted with those registered or granted rights.

Current Vienamese law basically satisfies the TPP requirement on publication of legal documents on the Internet. The 2015 Law on Promulgation of Legal Documents stipulates that all legal documents, excluding those containing state secrets, shall be published in the print and electronic Cong Bao (Official Gazette) (Article 150) and in the national legal database (Article 157). The 2006 Law on Information Technology also states in Article 28(2) that the websites of state agencies must publish their specialized legal documents and relevant regulations and laws, processes and administrative procedures implemented by their affiliated units, names of persons responsible for implementing these processes and procedures and time limits for completion of administrative procedures. Other legal documents, such as Decree No 64/2007/NĐ-CP on application of information technology in activities of state agencies, and Decree No. 52/2015/ND-CP on the national legal database also contain clear provisions on this issue.

At present in Việt Nam, information on applications for registration of industrial property objects, and information on titles of protection and other information relating to industrial property rights, such as registration of industrial property rights assignment contracts and industrial property rights licensing contracts, has been published in the Industrial Property Official Gazette and the website of the National Office of Intellectual Property of Việt Nam (NOIP). In addition, the NOIP has recently launched, on a pilot basis, a Library of Patents of Việt Nam database, a very useful source of information on inventive and innovative activities in Việt Nam. Information on copyright and related rights registration has been also made available on the website of the Copyright Office of Việt Nam. Hence, Vietnamese law has sufficient provisions ensuring the performance of the obligation to disclose IP information. The problems to be addressed are that the information systems of the NOIP and Copyright Office of Việt Nam are frequently overloaded or suspended from operation and that their databases are inadequate, failing to meet the needs of users.

In addition, regarding the obligation to disclose information on specific industrial property objects like patents, marks and geographical indications, Vietnamese law still has some unsuitable provisions. For instance, according to Article 18.45 of the TPP Agreement, for published patent applications and granted patents, each party must make available to the public at least the following information, to the extent that such information is in the possession of the competent authorities and is generated on, or after, the date of the entry into force of this Agreement for that Party: (a) search and examination results, including details of, or information related to, relevant prior art searches; (b) as appropriate, non-confidential communications from applicants; and (c) patent and non-patent related literature citations submitted by applicants and relevant third parties. Regarding the disclosure of patent information, Circular No 01/2007/TT-BKHCN provides details of information to be disclosed on patent applications, covering information relating to valid applications, including split-up applications published on the Industrial Property Official Gazette, including information relating to valid applications’ formats as stated in notices of acceptance of valid applications, information relating to valid applications (transfer of applications, splitting up of applications, serial numbers of original patent applications, etc.); summaries of inventions accompanied by drawings (if any) and so on. This circular also states that everybody may access detailed information on the nature of the objects stated in the applications published in the Industrial Property Official Gazette or request the NOIP to supply such information and is liable to pay an information supply fee under regulations.

Compared to the TPP Agreement provisions on disclosure of patent information, it can be said that Vietnamese law lacks specific provisions on the obligation to disclose information in an adequate and detailed manner, as required in Article 18.45 of the TPP Agreement, especially information mentioned at Point A of the Article. Meeting this requirement of the TPP Agreement is truly a challenge for the IP state management agencies, but will bring about practical benefits to inventors and the public.

Expansion of protected IP objects, scope of protection and term of protection of some IP objects

Regarding marks, Article 18.18 of the TPP Agreement states that no Party shall require, as a condition of registration, that a sign be visually perceptible, nor shall a party deny registration of a trademark only on the ground that the sign of which it is composed is a sound. Additionally, each party shall make best efforts to register scent marks. Meanwhile, Article 72 of Việt Nam’s IP Law[3] requires one of the conditions for a mark to be protected in Việt Nam to be composed of a visible sign in the form of letter, wording, drawing or image, including three-dimensional images or a combination of these elements, represented in one or more colors.” Current Vietnamese law does not yet protect sound and scent marks.

To implement the TPP commitments, Vietnamese IP law needs to be revised toward expanding the scope of protection to sound and scent marks. This expansion would lead to a series of legal changes, especially provisions on the assessment of the distinctiveness of scent marks and sound marks in the substantive examination for the granting of titles of protection, as well as in the determination of infringements upon these marks. Protection of scent marks and sound marks also poses challenges for the IPRs enforcement agencies in preparing their manpower, as the assessment of the similarity or identity of such marks for identifying infringements is very complicated.

Regarding patents, Article 18.37 of the TPP Agreement requires each Party to confirm that patents are available for inventions claimed as at least one of the following: new uses of a known product, new methods of using a known product, or new processes of using a known product. These provisions aim for higher protection of patents in the health sector, especially for pharmaceuticals and methods of disease diagnosis and treatment. However, the TPP Agreement permits its parties to select one of these ways of protection.

Current Vietnamese law does not provide the protection as inventions of new uses of a known product. However, it can protect new methods of using a known product or new processes of using a known product, if such methods or processes are novel, involve an inventive step and are susceptible to industrial application, as prescribed by Vietnamese law. Yet, Article 59 of Việt Nam’s IP Law excludes the protection as inventions of methods of preventing, diagnosing and treating human and animal diseases. This exclusion aligns with the TPP Agreement.

Regarding industrial designs, Article 18.55 of the TPP Agreement states that each party must ensure adequate and effective protection of industrial designs and also confirm that protection for industrial designs is available for designs: (a) embodied in a part of an article; or, alternatively, (b) having a particular regard, where appropriate, to a part of an article in the context of the article as a whole.

Concerning this issue, current Vietnamese law grants protection for industrial designs that are outer shapes of articles which are novel, inventive and susceptible to industrial application. In reality, a part of an article, which is detachable, may also have its industrial design protected under Vietnamese law. However, Vietnamese law needs to make clear whether an industrial design which is embodied in a part of an article, but is not a detachable part of the article, can be protected.

The TPP Agreement also provides the term of protection for some IP objects longer than those established by Việtnamese law and the TRIPS Agreement. Under the TPP Agreement, the term of protection of a work, performance or phonogram must not be shorter than the lifetime of the author, and 70 years after his or her death. This term under Vietnamese law and the TRIPS Agreement is the entire life of the author plus 50 years after his or her death. As for undisclosed test or other data for agricultural chemical products, the TPP Agreement requires the parties to set a term of protection of at least 10 years. Under Vietnamese law, this term is five years, counting from the date the applicant is granted a license. Việt Nam has a grace period of five years to fulfill its obligation under the TPP Agreement regarding the protection of undisclosed test and other data for agricultural chemical products.

Adjustment of validity terms of patents

Under Article 18.46 of the TPP Agreement, each Party must make best efforts to process patent applications in an efficient and timely manner, with a view to avoiding unreasonable or unnecessary delays. If there are unreasonable delays in a party’s issuance of patents, that party must provide the means to, and at the request of the patent owner, adjust the term of the patent to compensate for such delays. An unreasonable delay at least includes a delay in the issuance of a patent of more than five years from the date of filing of the application in the territory of the Party, or three years after a request for examination of the application has been made, or whichever is later. However, a party may exclude from the determination of such delays periods of time that do not occur during the processing or the examination of the patent application by the granting authority; periods of time that are not directly attributable to the granting authority; as well as periods of time that are attributable to the patent applicant. Particularly for a pharmaceutical product, Article 18.48 of the TPP Agreement requires each party to make available an adjustment of the patent term to compensate the patent owner for unreasonable curtailment of the effective patent term, as a result of the marketing approval process. This provision requires appropriate supplementation of Việtnamese law and the NOIP to stick to the time limit for the examination and grant of patents.


The above analyses show that a number of IP commitments in the TPP Agreement are higher than the provisions of current Vietnamese law, even higher than those of the TRIPS Agreement. The developed countries, in the process of negotiation on free trade agreements, tend to strike out agreements on IPRs protection, which are higher and more adequate than the WTO regulations in the TRIPS Agreement. Therefore, enforcement of IP provisions of the TPP Agreement will require Việt Nam to revise its IP law and to raise the effectiveness of activities of IPRs enforcement agencies. The country needs to also upgrade its information infrastructure to serve the registration of IPRs and provision of industrial property information. - VNS

"Ngọc Linh" ginseng gets geographic branding

Local residents grow ginseng plants in a farm in Nam Tra My district in Quang Nam. — VNS Photo Công Thành

QUẢNG NAM —The Geographical Indication (GI) of "Ngọc Linh" for ginseng root products was officially announced in Quảng Nam and Kon Tum provinces last week.

The central province of Quảng Nam had made the announcement in collaboration with the ministry of science and technology and the Intellectual Property Agency of Việt Nam.

The Ngọc Linh ginseng (Panax vietnamensis, or Vietnamese ginseng) was found on Ngọc Linh Mount at 2.598m on the border between Kon Tum and Quảng Nam provinces in the late 1960s. However, Quảng Nam Province had established the Trà Lĩnh drug materials farm on the mount, with low productivity, in 1979, while Kon Tum Province had also set up a conservation centre for ginseng in 2004.

Currently, Nam Trà My District in Quảng Nam and Tu Mơ Rông and Đắk Glei districts in Kon Tum have been appropriated for the mass development of ginseng because of their cool natural conditions on mountains reaching 1,400m to 2,600m above sea level.

Chairman of Nam Trà My district Hồ Quang Bửu said the announcement of the GI for ginseng would create a smooth transition for the two provinces in developing a long-term strategy and procuring investment for larger quantities of ginseng products with better productivity as well as ensure the conservation of the herb.

“We’re a long way from building up the trademark of Vietnamese ginseng. We have called on investors to pour money into boosting production and farming in the mountainous areas of Quàng Nam and Kon Tum Provinces,” Bửu said.

“We expect to build a famous brand for Vietnamese ginseng in the Central and Central Highlands Provinces – a basic requirement for future socio-economic development,” he said, adding that the GI had paved the way for the sustainable development of Vietnamese ginseng.

Roots of Ngoc Linh ginseng is harvested in Nam Tra My district in the central Quang Nam Province. The province announced the Geographical Indication (GI) of ‘Ngoc Linh' for ginseng root product in Quang Nam and Kon Tum province. — VNS Photo Công Thành

Last year, Quảng Nam Province approved a plan to build the Ngọc Linh Ginseng Centre in Nam Trà My District, which covered seven projects with a total investment of VNĐ9 trillion (US$429 million), including the development of infrastructure and the production of drugs, essential oils, cosmetics, tonic drinks and capsules from ginseng.

As scheduled, a 200ha farm will be built to conserve 2 million ginseng plants in 15 communes of two provinces during the first stage from 2016-25, along with afforestation and tourism activities.

Nam Trà My District alone developed 27 farms, with over 800,000 natural ginseng plants and other plants used for making drugs, with an estimated production capacity of 1,000 tonnes by 2025. 

Currently, Panax vietnamensis is sold for VNĐ40 million (US$1,900) per kilo, but poor investment in processing technology has resulted in only locals producing pharmaceutical materials and energy drinks.

The Vietnamese ginseng was one of eight precious and endangered flora genes covered in Quảng Nam Province’s conservation programme in 2014-20, including Ba Kích (poor ginseng or codonopsis), pepper, cinnamon, large rattan and white corn.

Last year, Nam Trà My District and Hamyang County in South Korea signed a Memorandum of Understanding on tourism, agriculture, conservation and the development of Ngọc Linh ginseng.

According to the Intellectual Property Agency of Việt Nam, under the ministry of science and technology, few domestic companies have applied for patents, and 39 per cent of Vietnamese enterprises did not even know where and how to register for IP rights.

Several products from Việt Nam have GI recognition, including Buôn Ma Thuột coffee in Đắk Lắk Province, Phú Quốc fish sauce in Kiên Giang, grape and wine products in Ninh Thuận, and Long Khánh rambutan in Đồng Nai Province. — VNS

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