Conditions for Application for Granting Certificate of Registration of Geographical Indication

production, including: those who create the raw materials, processors, and manufacturers of the final product.

In Thailand, the subjects entitled to file applications for geographical indication protection include: (i) Competent state agencies; (ii) Individuals, legal entities or groups of people engaged in business activities of goods using geographical indications and headquartered in that geographical area; (iii) Groups or organizations of consumers using products bearing geographical indications.

In Vietnam, the previous regulations on the subjects entitled to file applications in the 1995 Civil Code contained many unreasonable points, hindering the registration and protection of appellation of origin of goods, for example, according to Article 789(2) of the 1995 Civil Code, only subjects with production and business activities have the right to file applications for protection certificates of appellation of origin of goods. This unreasonableness has been gradually overcome in Decree 63/CP (Article 14.3) and the testing practice of the Intellectual Property Office. However, this is an illegal solution when the document explaining the regulations is contrary to the Civil Code, specifically Article 14.3.d of Decree 63/CP allows "territorial administrative agencies" to also have the right to file applications for registration of appellation of origin of goods. The Intellectual Property Office's testing practice goes one step further by allowing "professional social organizations" to submit applications for registration of appellation of origin of goods, for example for the appellation of origin of goods "Phu Quoc".

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In another aspect, Article 789(3) of the Civil Code and Article 14.3.a of Decree 63/CP allow too many people (all those who produce and do business in the territory) to have the right to submit applications for Certificates of the right to use the appellation of origin of goods. The consequences are: (i) the Intellectual Property Office will have to consider many applications with similar content, issue and manage many certificates with similar content; (ii) when there is a violation of the right to a protected appellation of origin of goods, each individual certificate owner will find it difficult to have enough time, experience and money to request the competent authority to enforce the protected rights, especially when the violation occurs in a foreign country.

This limitation has been overcome in the Law on Intellectual Property (Article 92), specifically the certificate of protection of geographical indications records the organization managing the geographical indication, the organizations and individuals with the right to use the geographical indication, and the protected geographical indication. From this provision, it can be seen that with one geographical indication, the competent state agency does not have to consider many applications for protection, does not have to issue many certificates of protection.

In addition to complying with the regulations on the subject entitled to file an application, the filing of an application for geographical indication protection in Vietnam must also comply with the regulations on the method of filing the application.

The provisions of Article 89 of the Law on Intellectual Property on the method of filing an application for registration of industrial property rights in general are also applicable to geographical indications. According to this provision, organizations and individuals may file an application directly or through a legal representative in Vietnam. Particularly for foreign individuals not permanently residing in Vietnam, foreign organizations and individuals without a production or business establishment in Vietnam must file an application through a legal representative in Vietnam. For example, the geographical indication "Cognac" is currently protected in Vietnam and the Cognac National Inter-Agency Office has filed an application for protection in Vietnam through the French Embassy.

Previously, according to the provisions of Decree 63/CP, all those who produce and do business in the territory have the right to submit an application for a Certificate of Right to Use the Appellation of Origin. In reality, there are cases where many different entities submit applications for a Certificate of Right to Use for the same Appellation of Origin. Therefore, the law has stipulated the first-to-file principle. Accordingly, if two or more entities submit applications for the same Appellation of Origin, when the Appellation of Origin is registered, all entities will be granted a Certificate of Right to Use the Appellation of Origin. The Intellectual Property Law no longer allows different entities to submit multiple applications for the same

a geographical indication that these entities will jointly register on one application. Therefore, the provision on the first-to-file principle is no longer mentioned in the Intellectual Property Law as well as the documents guiding the implementation of this law.

2.2.2. Conditions for applications for Certificate of registration of geographical indications

An application for a Certificate of Protection for a Geographical Indication is a collection of documents expressing the applicant's request for the issuance of a Certificate of Protection for a Geographical Indication with the corresponding content and scope of protection. An application for a Certificate of Protection for a Geographical Indication must ensure the requirements in terms of form and content as prescribed by law.

According to previous regulations, industrial property rights for geographical indications are automatically established when all legal conditions are met. Therefore, there is no legal document stipulating the conditions for applications for a Certificate of registration of geographical indications. As for appellations of origin, the conditions for applications for a Certificate of the right to use appellations of origin of goods are stipulated in Decree 63/CP and Circular 3055/TT-SHCN. Inheriting these regulations, the Law on Intellectual Property and its implementing documents have also determined the requirements for applications for geographical indications. According to current legal regulations, applications for a Certificate of protection of geographical indications must satisfy the requirements specified in Articles 100, 101 and 106 of the Law on Intellectual Property and Points 7 and 43 of Circular 01/2007/TT-BKHCN.

First of all, the application must have all the documents prescribed by law. Specifically, the application for geographical indication registration must include the following minimum documents:

+ Registration form according to the form issued by the Department of Intellectual Property;

+ Documents, samples, information identifying geographical indications to be protected;

+ Documents for payment of fees and charges;

+ Power of attorney, if applying through a representative.

The application must include sufficient documents to identify the specific characteristics, quality or reputation of the product bearing the geographical indication as well as the geographical area corresponding to the name or indication. These documents (especially the Description) will be used to check the conformity of products bearing geographical indications brought to the market by any person entitled to use these objects. Therefore, the law has very specific regulations on the requirements for documents, samples, and information identifying geographical indications that need protection (Article 106, Clause 1 of the Law on Intellectual Property), including requirements for the description of the characteristics, quality, and reputation of the product bearing the geographical indication; for the map of the geographical area corresponding to the geographical indication.

According to Swiss law, the application for registration of a geographical indication must demonstrate that the name fully meets the conditions for registration of a geographical indication or an appellation of origin. In particular, the application must include the following: Name of the requesting organization, evidence of representative status; appellation of origin, geographical indication requested for registration; arguments and documents proving that the name is not the common name of the product; arguments and documents proving that the product is produced in that geographical area; documents proving the connection between the product and the geographical environment; geographical origin; description of traditional methods of local stability. The application must be accompanied by a description of the specific characteristics of the product bearing the geographical indication or appellation of origin.

Unlike the provisions of Swiss law, Vietnamese law does not require that the application for registration of a geographical indication include arguments and documents proving that the geographical indication for protection is not the common name of the product.

In addition, according to the provisions of Vietnamese law, geographical indication registration applications must also meet the requirements of uniformity, language, presentation of documents in the application, etc. The requirement of uniformity of the application is shown in that each geographical indication registration application is only required to be granted one certificate.

protection certificate for a geographical indication used for a product (Article 101, Clause 1 of the Law on Intellectual Property). All documents of the application must be in Vietnamese, except for the Power of Attorney which can be in another language but must be translated into Vietnamese , etc.

The Law on Intellectual Property does not stipulate that an application for registration of a geographical indication must include a "regulations on the use of geographical indications" issued by the collective organization representing the registration. However, in order to avoid possible disputes in the future and to determine responsibilities and costs for the use of geographical indications, I think this document should be added as one of the minimum documents required in the application for registration of a geographical indication. According to the French Law on Geographical Indications, an application for registration of a geographical indication must include a "regulations on the use of geographical indications".

The TRIPs Agreement does not prescribe procedures for registering geographical indications and documents in geographical indication applications, but only provides principles on procedures for establishing and maintaining intellectual property rights. Accordingly, the registration of intellectual property objects depends on meeting the conditions on the nature of the intellectual property objects, which are completed within a reasonable time. The TRIPs Agreement also requires (Articles 41.2 and 41.3) that the procedures and formalities prescribed for the protection of rights must be reasonable and equitable, not unnecessarily complicated or costly, or unreasonably delayed without reason.

Thus, it can be seen that Vietnam's current regulations on geographical indication registration applications are relatively complete and perfect.

2.2.3. Procedures for processing applications for Certificate of registration of geographical indications

According to the provisions of the Law on Intellectual Property, an application for registration of geographical indications will only be accepted by the state management agency of industrial property rights (specifically the Department of Intellectual Property) if it contains at least the information and documents specified in Article 108, which are:

- Application form for geographical indication registration;

- Description of the specific characteristics of the product bearing the geographical indication;

- Fee payment documents

Applications for geographical indications, once received, will be examined for form and content.

In our country, geographical indication applications are examined both in form and content by the National Office of Intellectual Property. Meanwhile, according to Swiss law, geographical indication applications will be examined simultaneously by three agencies: the Federal Office of Agriculture, the Federal Commission for Geographical Indications and the relevant states, and of these three agencies, the Federal Office of Agriculture is the main examining agency.

2.2.3.1. Formal assessment

The purpose of formal examination is to check whether the application meets the requirements of a valid application, that is, to examine the application to confirm whether the documents in the application are prepared in accordance with the regulations on form and content. If the application is considered valid, it will continue to be processed according to the provisions of law. If the application lacks one of the mandatory requirements such as the application is prepared in a language other than Vietnamese or there is a basis to confirm that the applicant does not have the right to submit the application, the subject stated in the application is not protected by the State according to the provisions of law, the Intellectual Property Office will issue a Notice of refusal to accept the application due to the application being invalid. If the application has deficiencies such as not satisfying the consistency, not meeting the requirements on presentation, etc. , the Intellectual Property Office will issue a notice of the results of the formal examination of the application and set a deadline for the applicant to correct those deficiencies.

The formal examination of the application must comply with the provisions of Article 109 of the Law on Intellectual Property, Point 13 of Circular 01/2007. In general, the provisions on the formal examination of geographical indication registration applications of current law are the inheritance of previous legal provisions on applications.

registration of appellation of origin of goods. However, to ensure the rights of applicants as well as facilitate investment and business, the time limit for formal examination as well as the time limit for applicants to correct application deficiencies has been shortened from 03 months to 01 month according to current regulations.

International conventions such as the TRIPS Agreement or the Paris Convention do not regulate the formal examination of applications but reserve the right to regulate for national law in order to facilitate countries to self-regulate and regulate in accordance with their socio-economic conditions and legal systems.

2.2.3.2. Publication of application

An application for geographical indication registration, after being accepted as valid by the National Office of Intellectual Property, will be published in the Industrial Property Gazette as prescribed in Article 110 of the Law on Intellectual Property and Point 14 of Circular 01/2007.

The purpose of publishing a geographical indication application is to provide an opportunity for any third party to have the right to comment on whether or not the geographical indication stated in the published application should be protected, with specific reasons submitted to the Intellectual Property Office.

The Law on Intellectual Property and its guiding documents have specific provisions on the time limit for publication of applications, specifically within 02 months from the date of acceptance of a valid application, in order to ensure rights and create conditions for third parties to access information on geographical indications requiring protection in a timely manner. Previous legal documents did not specify the time limit for publication of applications, which could cause third parties to lose the opportunity to object to the registration of a designation of origin of goods.

The laws of countries on registration of appellations of origin or geographical indications all require publication of applications for registration of appellations of origin or geographical indications in order to

The purpose is to give third parties the opportunity to object to the protection or non-protection of the subject matter concerned.

The TRIPS Agreement does not regulate this issue but leaves it to countries to regulate themselves.

2.2.3.3. Content assessment

The purpose of the application content examination is to evaluate the protection capability of the subject matter stated in the application according to the protection conditions, and determine the corresponding scope (volume) of protection (point 15.1 of Circular 01/2007).

After the application for registration of a geographical indication is accepted as valid and published in the Industrial Property Gazette, the National Office of Intellectual Property shall conduct a substantive examination of the application. The substantive examination aims to review and evaluate whether the sign stated in the application meets the protection conditions for geographical indications as prescribed in Article 79 of the Law on Intellectual Property and whether it falls under the subjects not eligible for protection as prescribed in Article 80 of the Law on Intellectual Property.

Appraisal of application content includes the following contents:

- Assess the suitability of the subject matter stated in the application with the type of protection certificate requested to be granted;

- Evaluate the subject according to each protection condition

The subject matter stated in the geographical indication registration application shall be considered incompatible with the type of geographical indication protection certificate if the subject matter is not a visible sign used to indicate a product originating from a region, locality, territory or country (Clause 22, Article 4 of the Law on Intellectual Property).

The subject stated in the application is accepted for registration and recorded in the National Register of Geographical Indications if it fully meets the conditions prescribed by the Law on Intellectual Property.

The assessment of geographical indications according to the conditions of protection is carried out

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