Minimum standards
First of all, The Trans-Pacific Partnership ("TPP") requires Vietnam to give effect to the provisions of the Intellectual Property Chapter ("IP Chapter"). Vietnam may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene the provisions of this Chapter. Thus, the provisions of the IP Chapter of TPP shall be minimum standards for the Vietnamese Law. In general, such standards call for a higher level of protection than in the current Vietnamese Law.
Trademarks
Article 18.8 of the TPP states that “No Party shall require, as a condition of registration, that a sign to 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.” This places an obligation on Vietnam to grant trademarks that it could reject under its current law which requires a trademark to be a visible sign. Moreover, the TPP also encourages Vietnam to allow scent marks.
Article 18.20 provides the owner of a registered trademark the right to exclude third parties from using identical or similar signs in the course of trade that is related to goods or services in respect of which the owner’s trademark is registered, where such use would result in a likelihood of confusion. And, as the TPP states, in the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. However, the current Vietnamese Law does not have such a presumption. In Vietnam, using signs identical with protected marks for goods or services similar or related to those goods or services on the list registered together with such mark shall be deemed to be infringements if such use is likely to cause confusion as to the origin of the goods or services. Thus, it appears that the TPP language affords greater protection to trademarks.
Copyright
Article 18.63 provides that copyright terms shall be “not less than the life of the author and 70 years after the author’s death.” The Vietnamese Law, on the other hand, sets the term at 50 years.
Article 18.68 provides that a person is liable and subject to the Civil and Administrative Remedies if he/she knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure that controls access to a protected work. And, if any person is found to have engaged willfully and for the purposes of commercial advantage or financial gain in such activities, he/she shall be liable for Criminal Penalties. Meanwhile, under the current Vietnamese Law, a person is only liable for Civil Remedies if he/she deliberately circumvents. Thus, the TPP may lead Vietnam to provide greater punishment to circumvention than now. Moreover, TPP provides that a violation of circumvention is independent of any infringement that might occur under the Vietnamese law on copyright and related rights.
Article 18.69 establishes civil liability for persons (i) knowingly removes or alters any Rights Management Information (RMI); or (ii) knowingly distributes or imports for distribution RMI knowing that the RMI has been altered without authority; or (iii) knowingly distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, performances or phonograms, knowing that RMI has been removed or altered without authority. Criminal liability is applied for these acts when done “willfully and for purposes of commercial advantage or private financial gain. The current Vietnamese Law seems to not have any regulations regarding such matters yet.
Article 18.77 provides for Criminal Penalties in cases of willful copyright or related rights piracy on a commercial scale. This may differ to the Vietnamese Penal Code 2015, but this is not yet clear. According to the Penal Code, a person who without the consent of the holders of copyrights and relevant rights, deliberately commits the acts of (i) making copies of works, video recordings, audio recordings; or (ii) making the copies of works, video recordings, audio recordings publicly available which infringe upon copyrights and relevant rights protected in Vietnam shall be liable to Criminal Penalties. Copyright or related rights piracy appears to be broader than such acts as it could also be making derivative works, modifying, editing or distorting works without authoirzation.
Article 18.78 provides for Criminal Penalties in cases of: (i) unauthorized and willful access to a trade secret held in a computer system; or (ii) unauthorized and willful misappropriation of a trade secret including by means of a computer system; or (iii) fraudulent disclosure, or alternatively, the unauthorized and willful disclosure, of a trade secret, including by means of a computer system. This differs to the current Vietnamese Law as the Penal Code does not mention about trade secret.
And, it is worth noting that Article 18.46 requires Vietnam compensate for any unreasonable delays in an issuance of patents. The TPP defines an unreasonable delay as at least including 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, whichever is later.
Source : www.ezlawfirm.org
Keyword : How the TPP's Intellectual Property Chapter, will be the norm, for Vietnam.
