Legal news July Contents. Vision & Associates A TTORNEYS. PATENT & TRADEMARK A GENTS. I NVESTMENT & MANAGEMENT C ONSULTANTS

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1 A TTORNEYS. PATENT & TRADEMARK A GENTS. I NVESTMENT & MANAGEMENT C ONSULTANTS Legal news Contents Intellectual Properties... 2 Some New Provisions Of Trademark In The Draft Of Intellectual Property Law...2 Other Sectors... 4 Civil...4 Finance...4 Accounting...5 Customs...5 Labor...5 Construction...6 Land...6 Education...6 Culture...6 Insurance...6 Miscellaneous...7 Contact Details... 8 This Legal news is solely published for our clients and other interested persons. It is intended to be used for general information purpose only and should not be relied upon as legal advice or opinion. Professional advice should be sought for any specific situation. Please direct your inquiries to our offices or persons listed at the end of this Legal news. This Legal news is also available online at All rights reserved

2 Intellectual Properties Some New Provisions Of Trademark In The Draft Of Intellectual Property Law By Ho Tuong Vi The Draft of Intellectual Property Law ( the Draft ) drawn up by the Ministry of Science and Technology ( MoST ), which had been submitted to the Government on 10 January 2005, was considered and discussed in the session of the National Assembly on 30th and 31st May The latest version of the Draft lodged on the website of the National Office of Intellectual Property ( the NOIP ) as considered a quite full collection of the Intellectual Property objects protected in Vietnam (including 17 chapters and 261 articles) from the separate provisions which are dispersed in numerous prevailing legal documents. However, introduced this article will be only some new provisions with regard to trademark in the Draft. Well-known trademark The term well-known trademark is a pretty familiar one to not only the legislators, businessmen but to consumers around the world. In Vietnam, however, this term has been officially promulgated in the Decree 06/2001/ND-CP, dated 01 February 2001, in respect of supplement of and amendment to a number of provisions of Decree 63/1996/ND-CP, dated 24 October A well-known trademark, pursuant to this legal instrument, is a trademark that is used continuously for prestigious products or services so that it becomes widely known. But, the Decree 06 only provides a general definition of well-know trademark without provide the list of criteria required for a well-known one. Due to this vagueness, no trademark has been accepted for protection as a well-known trademark in Vietnam by the NOIP so far. To deal with this facts, the MoST has explicitly provided criteria of a well-known trademark in the Draft. Whereby, a trademark shall be considered to be famous or not via the following criteria: (i) the number of relevant consumers who know the trademark through trading and using goods or services bearing the trademark, or by means of advertisement activities; (ii) the territory where goods or services bearing the trademark have been circulated; (iii) the turnover from the sale of goods or the supply of services bearing the trademark, or the quantity of goods sold or that of services supplied; (iv) the period during which the trademark has been used consecutively; (v) the prestige of goods or services bearing the trademark; (vi) the number of countries accepting for protection for the trademark; (vii) the number of countries recognizing the trademark as a well-known trademark; (viii) the value of the trademark in form of assignment of ownership, license, contribution of capital; and (ix) the others. Page 2

3 Obviously, listing the above criteria likely facilitate the NOIP in the recognition of the well-known trademark in accordance with the prevailing regulations. Nevertheless, the Draft could not cover all the provisions regarding the procedure for recognizing the well-known trademark in Vietnam. For instance, decision on recognizing the wellknown trademark will be issued relying on neither the evidence proving the fame of the trademark and the other examination results such as the examination of the registrability nor the proven evidence only. Certification marks Recently, a series of certification marks such as High-qualified products of Vietnam or "ISO 9001 Certificate have gradually become familiar to both Vietnamese enterprises and consumers. It is admitted that the impact of the certification mark over the products or services of the enterprises and the consumer market in Vietnam is considerably high. Yet, there is no regulation with regard to this object stipulated in the prevailing law. Hence, for the purpose of effective protection and controlling such mark in Vietnam, the regulations on protection for the certification mark have been included in the Draft. Accordingly, certification mark is a trademark which may be used by the owner so as to certify the particulars in respect of origin, materials, method of manufacture of goods or supply service, quality, with the others as manufactured or supplied by others. Accordingly, the organizations which are competent to certify and control the particulars of goods or services bearing the certification mark, and have no business activities in relation to those goods or services can file the application for such certification mark. The primary difference between a trademark of goods/service and a certification mark is the status of the owner. The owner of a trademark is entitled to carry out the manufacture or supply activities of goods or services bearing the registered trademark. On the contrary, the owner of the certification mark only has the right to certify the particulars of goods or services as produced or provided by other meanwhile does not have the right of manufacture activities. The applicant, apart from the basic documents, should prepare regulations for using certification mark when filing the request of protection with the NOIP. Under the Draft, the regulations for using certification mark comprises of the following fundamental contents: the owner of the certification mark; conditions for using the certification mark; particularities of goods, services certified by the mark; methods for evaluation of such particulars and control of using the certification mark; fee paid by the user for certifying and protecting the trademark (if any). All amendment and supplement of the regulations have to be registered with the NOIP. Collective marks The rules of a collective mark are not sufficient and detailed though the protection of this object has been acknowledged in Decree No. 63/CP, dated 24 October 1996, of the Government on detailed regulations concerning Industrial Property. As a result, some amendments of such object have been added in the Draft. Page 3

4 According to the Draft, a collective mark refers to the trademark used to make a distinction among goods, services of the subsidiary of the owner of this trademark in comparison with those of the other who are not the subsidiary of such owner. Previously, any individual or legal entity representing the community of the individuals, legal entities or the others who comply with regulations of using the collective mark are deemed as the subject for the registration of this mark. In contrast, the Draft prescribes that only the organization as established in accordance with the law such as association, co-operative, head of company, etc, has the right to file the application for the collective mark so that its members can use the trademark based on the regulations. Furthermore, so as to make it convenient for the applicant to prepare the lawful and adequate Regulations of using the collective mark, the Draft has clearly defined the basic contents of the regulations; particularly the owner of the collective mark, the requirements for using the mark, the conditions for being the member of the organization who is the owner of such mark, the sanction applied to the infringement acts of the regulations, and the list of the mark users. Under the Draft, the validity of Registration Certificate of the collective mark will be terminated in case the owner of the mark have not controlled or have controlled ineffectively the compliance of the Regulations of the members. Nevertheless, how the ineffective control is and what the legal grounds for determining the ineffectiveness thereof are. This matter should be further clarified in the Draft. For the time being, the issuance of the Draft is timely and judicious though the Draft is undergoing the examination for completion, expressing the stubborn determination of the Government of Vietnam to join the WTO. Other Sectors Civil On June 14, 2005, the National Assembly, XI legislation, session 7th, passed Civil Code, including 7 parts, 777 Articles. This Code shall be effective as from 01 January 2006, and replace Civil Code 1995 and terminate the effect of the Ordinance on Economic Contracts dated 25 September Finance On June 20, 2005, the Ministry of Finance issued Circular 51/2005/TT-BTC, guiding the implementation of Regulations on financial management of Development Assistant Fund. Government s Decree 81/2005/ND-CP, dated June 22, 2005, on organization and operation of finance inspectorate. On June 22, 2005, the Ministry of Finance issued Decision 37/2005/QD-BTC, on the collection, payment, management and using of examination fee on cassette tape, disc, software and on other materials. Page 4

5 Circular 53/2005/TT-BTC, dated June 23, 2005, of the Ministry of Finance, guiding the making and appraisement of a finalisation report of basic construction investment capital sourced from the State budget, according to the annual budget margin. On June 30, 2005, the Ministry of Finance issued Decision 38/2005/QD-BTC, regulating the price frame of sanitary water for use. On July 03, 2005, the Ministry of Finance issued Decision 39/2005/QD-BTC, regulating the orientation price of petrol and oil in Decision 171/2005/QD-TTg, dated July 08, 2005, of the Prime Minister, on the regulations on policy on responsibility allowances to judge, court secretaries and court investigators. The Government issued Decree 89/2005/ND-CP, on July 11, 2005, with detailed regulation on the implementation of a number of articles of the Ordinance on antisubsidy of goods imported into Vietnam. On the same day, the Government issued Decree 90/2005/ND-CP, with detailed regulation on the implementation of a number of articles of the Ordinance on antidumping of commodities imported into Vietnam. On July 12, 2005, the Ministry of Finance issued Decision 44/2005/QD-BTC, regulating the collection, payment, management and using of the fee for appraisal of conditions for doing business in the field of healthcare, the fee for appraisal of conditions and requirement for medical and healthcare, fee for granting import, export license and certificate of practicing medicine and healthcare. Accounting Interministerial Circular 50/2005/TTLTBTC-BNV, dated June 15, 2005, of the Ministry of Finance, the Ministry of Internal Affairs, guiding the standards, conditions and procedures for appointment, dismissal, replacement and identification of allowance for chief accountants, accountants in State accounting units. Customs The Prime Minister issued Decision 149/2005/QD-TTg, on June 20, 2005, on the pilot implementation of electronic customs procedures. Labor On June 22, 2005, the Ministry of Labor, War Invalids and Social Affairs issued Circular 20/2005/TT-BLDTBXH, guiding the implementation of Decree 19/2005/ND-CP, dated February 28, 2005, regulating the conditions, procedures and operation of employment organizations. Page 5

6 On July 13, 2005, the Government issued Decree 93/2005/ND-CP, on amendment of and supplementation to a number of articles of Government s Decree 105/2003/ND-CP, dated September 17, 2003, with detailed regulations and guiding the implementation of a number of articles of the Labor Code on recruitment and management of foreign employees working in Vietnam. Decree 94/2005/ND-CP, on July 15, 2005, on settlement of the employees interests in bankrupted enterprises and co-operatives. Construction Interministerial Circular 10/2005/TTLT-BXD-BNV, dated June 22, 2005, of the Ministry of Construction, Ministry of Internal Affairs, guiding the tasks, rights, organization and workforce of local construction inspectors. The Ministry of Construction issued Circular 11/2005/TT-BXD, on July 14, 2005, providing guidelines for inspection and certification of the compliance of the construction quality. On July 15, 2005, the Government issued Decree 95/2005/ND-CP, on granting certificate of the ownership on house and constructions. Circular 12/2005/TT-BXD, dated July 15, 2005, of the Ministry of Construction, guiding several aspects on management of construction quality and condition, capacity of organization, individual operating in construction field. Land On June 16, 2005, the Ministry of Justice and the Ministry of Natural Resources and Environment issued Interministerial Circular 05/2005/TTLT-BTP-BTNMT, guiding the mortgage, guarantee by land-use right and property attached to land. Education Decision 164/2005/QD-TTg, dated July 04, 2005, issued by the Prime Minister, on the approval of the Proposal on Development of distant education for the period of Culture Decision 156/2005/QD-TTg, dated June 23, 2005, of the Prime Minister, on the approval of Overall planning for Vietnam s museum system to Government s Decree 86/2005/ND-CP, dated July 08, 2005, on the management and protection of aquatic cultural heritage. Insurance On June 20, 2005, the Ministry of Finance issued Circular 52/2005/TT-BTC, guiding the establishment, organization and operation of reciprocal insurance agency in the fields of agriculture, forestry and aqua-culture. Page 6

7 Miscellaneous Government s Decree 80/2005/ND-CP, dated June 22, 2005, on assignation, sale, contracting out and leasing of State companies. On July 11, 2005, the Government issued the following Decrees: Decree 87/2005/ND-CP, on business registration of co-operatives. Decree 88/2005/ND-CP, on some development assistance, encouragement policies of co-operative. Decree 91/2005/ND-CP, promulgating the Regulation on giving a name, rename of roads, streets and public construction. Page 7

8 Contact Details Hanoi Head Office Mr. Pham Nghiem Xuan Bac Managing Partner Mr. Pham Minh Hai Partner, Consulting Ms. Le Quynh Anh Partner, Legal Ms. Le Thi Kim Dzung Partner, Intellectual Property Unit 2, 1st Floor, International Center 17 Ngo Quyen, Hanoi, Vietnam Tel: / Fax: vision@hn.vnn.vn Ho Chi Minh City Office Mr. Dang The Duc Partner, Manager Unit 8A1, 8th Floor, Han Nam Office Building 65 Nguyen Du, District 1, Ho Chi Minh City, Vietnam. Tel: / Fax: hcmvision@hcm.vnn.vn Page 8

9 Filename: LegalnewsJuly05 Directory: C:\My Documents\Vision\ \WEB_VISION_NEW\WEB_VISION\Pdf\English\Legal_pdf\200 5 Template: C:\Documents and Settings\Luu Bach Tung.LBTUNG.000\Application Data\Microsoft\Templates\Normal.dot Title: Legal news Subject: Author: B.T. Giang Keywords: Comments: Creation Date: 8/22/2005 9:07 AM Change Number: 5 Last Saved On: 11/22/2005 9:56 AM Last Saved By: Mr Tuan Anh Total Editing Time: 6 Minutes Last Printed On: 11/21/2005 5:05 PM As of Last Complete Printing Number of Pages: 8 Number of Words: 2,331 (approx.) Number of Characters: 13,292 (approx.)

Vision & Associates would like to wish all esteemed clients and readers a happy and prosperous new year.

Vision & Associates would like to wish all esteemed clients and readers a happy and prosperous new year. A TTORNEYS. PATENT & T RADEMARK A GENTS. I NVESTMENT & M ANAGEMENT C ONSULTANTS Legal news would like to wish all esteemed clients and readers a happy and prosperous new year. Contents INDUSTRIAL PROPERTY...