(type), or "style" - so the practical application of the Agreement is very limited. The Agreement also grants protection to indications for wine, although they have become common names for products in a way that is contrary to the most basic principles of trademark law [48]. Currently, only 35 countries have joined the Madrid Agreement and many important countries have not joined, such as the United States, Belgium and almost all South American countries [57].
Both the Paris Convention and the Madrid Agreement for the Suppression of False Indications of Source of Goods of 1891 provided very limited protection for geographical indications. To overcome this limitation, a number of countries jointly signed the Lisbon Agreement Concerning the Protection and International Registration of Appellations of Origin (the "Lisbon Agreement") on 31 October 1958. This Agreement was reviewed in Stockholm in 1967 and amended in 1979. The Lisbon Agreement provides a broader scope of protection for geographical indications.
The purpose of the Lisbon Agreement is to effectively protect and enforce geographical indications on a new basis. This Agreement does not limit enforcement measures to border control measures as in the Paris Convention but stipulates a system of geographical indication registration modeled on the international trademark registration in the Madrid Agreement Concerning the International Registration of Marks 1891 (Vietnam joined the Madrid Agreement Concerning the International Registration of Marks 1891 from March 8, 1949). The subject of protection of the Lisbon Agreement is appellations of origin according to the interpretation of the term "appellation d'origine" in French law - meaning that the Lisbon Agreement only protects indications whose quality and characteristics are entirely or substantially determined by the geographical environment (including natural and human factors). Simple indications of source (which can be used for products whose characteristics do not stem from geographical conditions) are not covered by the Agreement. This limitation has prevented countries that are not familiar with the concept of appellation of origin from acceding to the Agreement.
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To date, only 26 countries have joined the Lisbon Agreement and two countries are currently signing the Lisbon Agreement, Romania and Spain [57]. There are two main reasons for the low participation of countries in this Agreement. First, an appellation of origin is only protected internationally when it is already protected "as such" in the country of origin. Second, this Agreement does not provide for exceptions for indications that have become the usual names of goods in some countries.
Given the particular importance of geographical indications for export, countries with a large number of geographical indications (such as European countries) have called for closer international cooperation to enforce a higher standard of protection for this type of intellectual property right. The effective protection of geographical indications, especially geographical indications for wines and spirits, was the most important reason for the EC to bring the issue before the GATT and it has become a very controversial issue.
For the first time under the GATT, negotiations addressed aspects of intellectual property rights related to international trade. The result of these negotiations was the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which was signed on April 15, 1994 and entered into force on January 1, 1995. TRIPS sets out minimum legal standards for the protection of intellectual property subjects (including geographical indications) that WTO member countries must comply with, thereby establishing a unified and effective legal framework for the comprehensive protection of intellectual property rights (including geographical indications).
In general, the TRIPS provisions on geographical indications are a compromise between the interests of the US and the EC, that is: it will prohibit future abuse and transformation of geographical indications into common names of products, but the current situation will remain the same. Some important provisions of TRIPS on geographical indications are still unclear and controversial, for example on the type of products protected (Article 22.1) [48], on the relationship between geographical indications and trademarks (Articles 24.5 and Article 16). However, the TRIPS Agreement is the first international treaty to regulate the system
remedies, including emergency remedies to prevent infringements and remedies to prevent further infringements. These remedies are not included in the Paris Convention.
Thus, with the birth of the TRIPS Agreement, the protection and enforcement of intellectual property rights in the world has been promoted, bringing benefits to both creators and users of technology, as well as general socio-economic benefits and ensuring a balance between rights and obligations.
Thus, it can be seen that the international legal system on the protection of industrial property rights for geographical indications is increasingly being built fully, tightly and increasingly perfected to effectively protect this industrial property object and to meet the needs of development and international integration of the world in the current period.
1.2.2. Brief history of the formation and development of the Vietnamese legal system on the protection of geographical indications
Vietnam's industrial property law system has only really begun to take shape since the early 1980s. Compared to the industrial property law systems of some countries in the world, although Vietnam does not have separate laws to protect each subject of industrial property such as England, France, Germany, Spain, etc., in terms of content, nature, ... Vietnam's industrial property law system does not have any fundamental differences but is also consistent with the basic principles of international treaties on industrial property that Vietnam participates in. That consistency has created favorable conditions for Vietnam to easily integrate with other countries and regional international organizations in the field of industrial property protection and created favorable conditions for foreign legal entities and individuals to apply for industrial property protection in Vietnam.
The development process of the Vietnamese legal system on the protection of industrial property rights for geographical indications after the country's reunification can be divided into the following three stages:
* Period from 1980 - 1995:
This is the opening stage of industrial property protection activities in our country. This stage is marked by the birth of the Ordinance on the Protection of Industrial Property Rights 1989.
One of the basic contents of the Ordinance on the protection of industrial property rights is the regulation of the subjects of industrial property rights. According to Article 1 of the Ordinance, the State recognizes and protects the industrial property rights of state organizations, collectives, private individuals with legal status and individuals, including ownership rights to inventions, utility solutions, industrial designs, trademarks and the right to use the name of origin of goods.
Thus, appellation of origin (a special form of geographical indication) was stipulated as one of the objects of industrial property protection during this period.
The 1989 Ordinance on the Protection of Industrial Property Rights has a number of specific provisions for the protection of appellations of origin of goods, such as provisions on the concept of appellations of origin of goods, rights of owners of certificates of protection of appellations of origin of goods, acts of using appellations of origin of goods, the right to file applications for protection of appellations of origin, etc.
Basically, the legal regulations on registration and use of appellation of origin of goods in the Ordinance on the Protection of Industrial Property are still very limited. The Ordinance does not have regulations regulating management activities for appellation of origin of goods. However, the Ordinance on the Protection of Industrial Property Rights has marked a new development step in the protection of industrial property rights in general.
common in Vietnam, consistent with the transformation of the economic management mechanism from centralized planning to a socialist-oriented market mechanism in Vietnam and enhancing the legal effectiveness of industrial property rights protection in our country.
The provisions of this Ordinance are consistent with the basic principles of international treaties on the protection of industrial property rights that Vietnam has joined. This is an important condition for our country to easily integrate into the international development process in the field of industrial property rights protection while creating a favorable environment to attract foreign investment and attract the registration of industrial property rights protection of these investors in Vietnam.
* Period from 1995 - 2005:
The protection of industrial property rights in Vietnam based on the provisions of the 1989 Ordinance on the Protection of Industrial Property Rights has gradually revealed certain limitations. Some principled provisions on the establishment and protection of industrial property rights in general have not been properly specified, causing difficulties and confusion in their application. The reality of the renovation process together with the development of a socialist-oriented market economy, the process of international economic integration as well as the cause of industrialization and modernization of the country requires the construction of a complete and synchronous system of legal documents on industrial property in general.
To overcome these limitations and shortcomings, on October 28, 1995, the National Assembly passed the 1995 Civil Code, which devoted a chapter to regulating industrial property (Chapter II, Part Six). The provisions on the names of origin of goods in Chapter II, Part Six of the 1995 Civil Code include the following basic contents:
- Industrial property rights are the ownership rights of individuals and legal entities to inventions, utility solutions, industrial designs, trademarks, the right to use the name of origin of goods and the ownership rights to other objects as prescribed by law (Article 780)
- Industrial property objects protected by the State include: names of origin of goods and other objects prescribed by law, except for objects prescribed in Article 787 of the 1995 Civil Code (Article 781).
- Article 786 stipulates the concept of appellation of origin of goods: is the geographical name of a country or locality used to indicate the origin of goods from that country or locality, provided that these goods have specific properties and qualities based on unique and superior geographical conditions, including natural and human factors or a combination of both.
- In addition, the 1995 Civil Code also has provisions on the establishment of industrial property rights for the names of origin of goods such as the right to file an application, the right of priority, the term of protection; on the protection of industrial property rights for the names of origin of goods; etc.
To implement the provisions of the 1995 Civil Code, the Government and competent state agencies have issued many documents guiding implementation. The documents issued during this period form a system of legal documents on the protection of industrial property rights in general and on the names of origin of goods and geographical indications in particular. These are the documents:
- Decree No. 63/CP dated October 24, 1996 of the Government detailing industrial property; supplemented and amended by Decree No. 06/2001/ND-CP dated February 1, 2001 of the Government;
- Decree No. 12/1999/ND-CP dated March 6, 1999 of the Government on administrative sanctions for violations in the field of industrial property;
- Circular No. 3055/TT-SHCN dated December 31, 1996 of the Ministry of Science, Technology and Environment guiding the implementation of Decree No. 63/CP dated October 24, 1996 of the Government;
- Circular No. 23/TC-TCT of the Ministry of Finance dated May 9, 1997 guiding the collection, payment and management of industrial property fees and charges;
- Circular No. 825/TT-BKHCNMT dated May 3, 2000 of the Ministry of Science, Technology and Environment on guiding the implementation of Decree No. 12/1999/ND-CP dated March 6, 1999 on administrative sanctions for violations in the field of industrial property, amended by Circular No. 49/2001/TT-BKHCNMT dated September 14, 2001.
- Some other relevant legal documents.
However, compared to the TRIPS Agreement, a series of subjects mentioned in TRIPS are not yet regulated in the 1995 Vietnam Civil Code such as: business secrets; geographical indications; rights against unfair competition related to industrial property; technical know-how and knowledge; designs and layouts of integrated circuits. In order to meet the industrial property standards of the TRIPS Agreement that the 1995 Civil Code has not yet specifically regulated, on October 3, 2000, the Government issued Decree No. 54/2000/ND-CP expanding the subjects of industrial property rights protected in Vietnam. These are the subjects: business secrets; geographical indications; trade names and protection of rights against unfair competition related to industrial property.
According to Decree No. 54/2000/ND-CP, industrial property rights for geographical indications are automatically established when all conditions specified in Article 10 of the Decree are met without having to be registered with a competent state agency. However, this Decree only mentions a number of very general issues and provisions such as the definition of geographical indications, the person entitled to use geographical indications, the content of industrial property rights for geographical indications, the term of
Protection of industrial property rights for geographical indications, acts of infringement, etc. The Decree does not specifically stipulate the procedures and order for establishing and protecting industrial property rights for geographical indications, measures to handle acts of infringement, etc.
* Period from 2005 - present:
Although we have made significant efforts to meet the requirements of intellectual property protection, there are still many points that have not kept up with the world's practices and experiences. Although there are provisions in Part 6 of the 1995 Civil Code and more than 40 related documents, in the face of the world's integration and development trends, compared to the requirements for Vietnam to join the WTO, this system still reveals many shortcomings and has not yet reached the world's protection standards.
Therefore, amending the Civil Code and promulgating a separate law to regulate the field of intellectual property in general and industrial property in particular is an urgent requirement. The 2005 Civil Code passed by the National Assembly on June 14, 2005, effective from January 1, 2006, the 2005 Intellectual Property Law passed by the National Assembly on November 29, 2005, effective from July 1, 2006 and the Law amending and supplementing a number of articles of the 2005 Intellectual Property Law passed by the National Assembly on June 19, 2009, effective from January 1, 2010 have partly met the above requirements.
According to Article 750 of the 2005 Civil Code, the subject of industrial property rights is compatible with the provisions of the TRIPS Agreement, including geographical indications, trade secrets, and semiconductor integrated circuit layout designs. To implement the provisions of the 2005 Civil Code and the 2005 Intellectual Property Law, many implementing guidelines have been issued, such as:
- Decree No. 103/2006/ND-CP dated September 22, 2006 of the Government detailing and guiding the implementation of a number of articles of the Law on Intellectual Property regarding industrial property;