In the new era, Vietnam has been one of the most outstanding rising stars in South East Asia. Besides the establishment of solid and harmonious diplomatic relations with other countries in the region, Vietnam has also participated in many free trade agreements (FTA) such as CPTPP, EVFTA, RCEP, etc. However, although these FTAs have many benefits and aim to achieve mutual development among the nations, it also has many strict standards that require the member nations to fulfill. So, how do Vietnam balance international requirements and national interest when joining these agreements, particularly regarding the IP legal system?
With the goal of enabling the enterprises of Vietnam to join the world's common playing fields with new-generation free trade agreements such as CPTPP, EVFTA, RCEP and to develop the nation's creativity, creating a driving force for society's development, the Vietnam government has issued the draft amendment of the IP Law for the third time - the largest revision since its promulgation in 2005.
With this new amendment, individuals and organizations of Vietnam can be facilitated with the processes incurred when dealing with international disputes. Furthermore, it also opens up new opportunities for Vietnam enterprises with the implementation and enforcement of IP rights domestically and internationally.
The need for revision in the context of the new era
With the signing of the new agreements, come along more stringent and stricter regulations that demanded each member country to closely fulfill.
One of the most notable additions is the change in sharing content on the internet. Nowadays, when someone uses a share feature on content on the Internet, they might not know this but they probably are conducting an illegal action that infringes upon the rights of the content owners.
This is because, under the new regulations in CPTPP or EVFTA, sharing works on the internet is an illegal action that violates the right to transmit the work without the permission of the author.
However, although that regulation seems harsh and strict and overall, damage both the interest of the users and the content owners by reducing the action of the users and the popularity of the content, it is not the only great change coming to Vietnam in the upcoming period.
Each agreement that Vietnam has joined in in recent time has a separate chapter on IP with content that covers all subjects from patents, trademarks, copyrights, etc. Compliance with these regulations is imperative for Vietnam enterprises in order to have their companies develop and met the requirement of international standards, creating reputable images and prestige in foreign enterprise's viewpoints and at the same time, improve the country's position.
Not only meeting the international standards but consent with the rules in the agreements also presents many opportunities for Vietnam enterprises, particularly the chance to register new types of trademarks. Previously, trademark applicants in Vietnam can only file for trademark registration for marks in the form of images (visible with the eye). Presently, the new agreement has added additional types of trademarks which include sound marks and scent marks.
Regarding scent marks which are even more troublesome than sound marks, the CTTPP stipulates that the "scent" mark will be registered by the parties to the agreement with their best efforts. However, in fact, at present, Vietnam does not have regulations, orders, procedures as well as ways to register a trademark as a scent mark. Thus, to ensure legal compatibility with the international standards, Vietnamese state agencies need to consider amending and supplementing the provisions of the law on IP.
Assessing the impacts of this amendment of the IP Law, Deputy Minister of Science and Technology Pham Cong Tac stated: "This time we make a big change, make it more methodical. The first goal is to create conditions for us to join the common playing field in the world with new-generation free trade agreements such as CPTPP, EVFTA, RCEP, secondly, to develop the country's creativity, creating a driving force for society's development."
Create a balance point in the IP Law and international standards is a difficult and time-consuming process
Many are concerned that the implementation of IP commitments in the agreements will create barriers for Vietnamese businesses, producers, and consumers. This phenomenon will occur, although the severity is unknown at the moment because, in the past, Vietnamese people have gotten used to more loose regulations. However, the balance between the requirements of the agreement and the interests of IP rights holders was the first thing that the drafting committee took into account.
Accordingly, this draft IP Law focuses on three main objects of IP rights which are:
- Industrial property (industrial designs, trademarks, geographical indications, etc.);
- Copyright and related rights;
- Rights to plant varieties.
However, the main distinction in this amendment regarding facilitating the conditions for enterprises is that the Vietnamese government has shown more efforts made to comply with international commitments. Particularly, this amendment tends towards an attempt to find a more precise balance than before between intellectual property rights and freedom of business, the right to access to information, and ensure conformity to our country. This has been demonstrated through the policies that the draft committee mentioned in the draft for amendments to the IP Law submitted to the National Assembly and approved last year, including the policy to "ensure the level of adequate and balanced protection".
The Vietnamese government has clearly stated their viewpoint towards this matter, they will still fulfill their international commitments, but it must be done gradually and over a steady period of time. This is because if the protection is too strong and the changes are too abrupt, it is not favorable for the development of the country and may discourage individuals, organizations to fulfill their IP rights obligations.
Balancing international requirements and national interests in the amendment of Vietnam's IP Law
How to balance the interests of rights holders and society both domestically and internationally is a difficult equation for the government and the legal department to solve. Not just the government, the enterprises in Vietnam also have the duty and right to support and give out their opinions for the betterment of the country.
On the basis of this principle, the draft has been revised many times in the direction of adding new regulations in response to international agreements, and at the same time clarifying shortcomings and obstacles to facilitate the process of establishing, maintaining, and exploiting IP rights.
(Reference from the Science and Development Newspaper)
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