Industrial Property Rights Limitation For Bmkd

2.4.1.2 Right to allow others to use BMKD

The owner has the right to use the BMKD, this is the first and most important right of the owner. From this right, the owner has the right to allow others to use his BMKD. Allowing others to use the BMKD is also to recover all or part of the costs and efforts that the owner had to spend to obtain the BMKD. When exercising this right, the parties must make a written document called a contract to record the parties' agreement on the use of the BMKD.

According to Article 123 of the Law on Intellectual Property, the owner of a business registration certificate has the right to allow others to use his/her business registration certificate. Accordingly, allowing others to use the business registration certificate can be done through a business registration certificate use contract (business registration certificate license contract). Contracts must be in writing and comply with the provisions of law on civil and economic contracts.

A contract for the use of a patent is a type of contract that allows the owner of a patent to transfer the right to use the patent to another organization or individual. According to Article 141 of the Law on Intellectual Property, the transfer of the right to use the patent is when the owner of the patent allows another individual or organization to use the patent within the scope of his/her right to use it. That scope is: applying the patent to produce products, provide services, trade goods; sell, advertise for sale, store for sale, import products produced by applying the patent. In return, the party receiving the right to use the patent must pay the owner an amount of money that the two parties have agreed upon, called the transfer price of the right to use.

The right to transfer the right to use the BMKD is exercised in two ways: First, the owner transfers all the rights to use his BMKD to another person, the transferee becomes the exclusive user of that BMKD; during the term of the signed BMKD usage contract, the owner is not allowed to transfer that BMKD to any other third party and also

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The owner may not use the BMKD until the expiration of the contract. This case is also known as transferring the right to use the BMKD through an exclusive contract. Secondly, the owner has signed a contract to transfer the right to use the BMKD to another person but at the same time still has the right to use that object and still has the right to transfer the right to use that BMKD to any other third party. This case is also known as transferring the right to use the BMKD through a non-exclusive contract.

When signing a contract for the use of the BMKD, the owner has the right to allow or not allow the transferee to sign a secondary contract with a third party.

However, in reality, owners of industrial property rights often want exclusive rights to exploit and use their intellectual property even when they have signed a contract to transfer the right to use that object to others. To protect the subjects who are transferred the right to use in the above-mentioned contract from the terms imposed by the licensor to the detriment of the transferee, intellectual property law stipulates: The contract for using industrial property rights must not contain provisions that unreasonably restrict the rights of the transferee, especially provisions that do not originate from the rights of the licensor (Clause 2, Article 144 of the Law on Intellectual Property). Accordingly, the BMKD license contract must not contain provisions such as: Prohibiting the transferee from improving the BMKD; forcing the transferee to transfer free of charge the BMKD improvements created by the transferee or the right to register industrial property, industrial property rights for those improvements; Directly or indirectly restricting the licensee from exporting goods or providing services produced or provided under the license contract to territories where the licensee does not hold exclusive rights to import such goods; forcing the licensee to purchase all or a certain percentage of the goods;

raw materials, components or equipment of the licensor or of a third party designated by the licensor without the purpose of ensuring the quality of goods and services produced or provided by the licensee; The licensee is prohibited from suing the validity of the industrial property rights over the business registration certificate or the transfer rights of the licensor.

The above terms, if appearing in the contract, are automatically invalid (Clause 3, Article 133).

In addition to signing a license contract, the owner of the business also has the right to sign a franchise contract to allow other entities to use his business. A franchise contract is a type of contract in which the franchisor allows and requires the franchisee to conduct the purchase and sale of goods and provision of services on his own under the following two conditions: first, the purchase and sale of goods and provision of services are conducted in a business organization manner prescribed by the franchisor and are associated with the trademark, trade name, business secrets, business slogan, business symbol, and advertisement of the franchisor; second, the franchisor has the right to control and assist the franchisee in operating the business (Article 284 - Commercial Law 2005).

When franchising, the franchisor is obliged to transfer the right to use the business know-how to the franchisee, along with providing instruction documents or conducting initial training and providing regular technical assistance to the franchisee. The franchisee is obliged to keep the franchised business know-how confidential, even after the franchise contract ends or is terminated; the franchisee must stop using the business know-how when the commercial contract ends or is terminated and may not re-franchise without the franchisor's consent (Articles 287, 289, 290 of the Commercial Law 2005).

2.4.1.3 Right to prohibit others from using BMKD

The law stipulates that the owner of a business registration certificate has the exclusive right to use the business registration certificate in his/her business activities to enjoy the benefits brought by that subject. This also means that the owner has the right to prohibit anyone from using that business registration certificate without his/her consent. Everyone in society has the obligation to respect and not to perform acts that hinder or infringe upon the owner's right to use it. On the other hand, a business registration certificate is a valuable asset of the owner, which can bring benefits in business. The use of that business registration certificate by others without the owner's permission greatly affects the owner's rights. Therefore, Articles 123 and 125 of the Law on Intellectual Property stipulate that the owner has the right to prohibit others from using his/her business registration certificate.

The act of using illegal business methods can be one of the following acts: applying business methods without the owner's permission to produce products, provide services, trade goods; selling, advertising for sale, storing for sale, importing products produced by applying illegal business methods.

For business secrets, due to their special secrecy, the owner is always conscious of keeping his business secrets secret, which means prohibiting others from using that business secret. This is natural, because when there were no legal regulations on this matter, businessmen already knew how to protect their own rights, against acts of accessing, collecting, disclosing and illegally using confidential business information.

When detecting illegal use of the BMKD, the owner may request the entity that commits the act of infringing the BMKD to stop the infringement, force a correction, make a public apology or compensate for damages. The owner may request the competent state agency to handle the illegal use of the BMKD or file a lawsuit in court or arbitration to protect his/her legitimate rights.

In addition to the provision that the owner has the right to prohibit others from using the business registration certificate, the law also stipulates cases where the owner is not allowed to exercise his/her right to prohibit (Clause 3, Article 125 of the Law on Intellectual Property) (analyzed in section 2.4.2 Limitation of intellectual property rights to business registration certificates).

The owner's right to use a business secret is more limited than the right to use a patent. This is due to the nature of a business secret. Because a business secret is automatically protected without the need for a protection certificate, other entities do not know its content, and the owner of a business secret cannot let others know what information is theirs so that they can exclude that information, not use it, not infringe upon it, so there may be a phenomenon where someone independently creates a business secret. In that case, the person who independently creates the business secret can also use the business secret like the owner of the business secret because they are essentially the owners of the information they create. This is the limitation of the right to use a business secret compared to a patent. For inventions, the content of the invention has been made public and protected through a patent, everyone knows what it is and who it belongs to, so they cannot research it, apply it, or exploit it without the owner's permission, except in the case of those who have the right to use it first.

2.4.1.4 Right to dispose of BMKD

The right to dispose is always an important power of the owner for both tangible and intangible assets. Only the owner has the right to dispose of his/her property. A person who is not the owner of the property only has the right to dispose of the property under the authorization of the owner. According to Article 195 of the 2005 Civil Code, the right to dispose is the right to transfer ownership of the property or to give up that ownership. BMKD is also a type of property, so the owner can dispose of it in the following ways: sell, exchange, donate, leave

inherit, renounce or make other forms of disposal as prescribed by law.

As analyzed in the above sections, the transfer of intellectual property rights to a business through a transfer contract is both a legal event that creates intellectual property rights to a business for this entity and an event that terminates those rights for another entity. In addition, it is also an expression of the will of the business owner in deciding on his/her business.

On the transfer of industrial property rights to BMKD through assignment contracts

The transfer of industrial property rights is the transfer of ownership by the owner of industrial property rights to another organization or individual through a written contract called an industrial property rights transfer contract and this contract must comply with the provisions of the law on civil and economic contracts. For BMKD, the right to transfer all rights to BMKD to another person must also be carried out in the form of a written contract (called a contract for transferring rights to BMKD) in accordance with the provisions of the law on civil and economic contracts. Accordingly, for this transfer contract to be legally effective, the content of the contract must have all the elements prescribed in Article 140 of the Law on Intellectual Property, namely: full name and address of the transferor and the transferee; basis for transfer; transfer price; rights and obligations of the transferor and the transferee.

In addition, for a contract to transfer rights to a business to take effect, the contract must be registered.

The owner of a business license can transfer the business license in many ways such as selling, exchanging, donating, inheriting, contributing capital to establish a business, reorganizing a business... to exercise the right to dispose of the property that is his/her business license.

Regarding the renunciation of ownership of a business, this is both an event that terminates the intellectual property rights to the business and demonstrates the will to relinquish that ownership, a basic way of expressing the owner's right to dispose of the business. The owner can terminate his ownership of his business by publicly declaring or performing an act demonstrating his renunciation of the right to use and dispose of that property.

In short, BMKD is an object of industrial property rights, a special property of business entities, and BMKD owners are recognized by law and fully protected in terms of the above basic rights.

2.4.2 Limitation of industrial property rights for BMKD

The rights of the owner of an industrial property object are absolutely protected by law during the period of protection. The owner has the exclusive right to exploit and use the industrial property object. However, in some specific cases, the law stipulates restrictions on the above rights of the owner to harmonize the interests of the right holder with the common interests of the whole society regarding the industrial property object.

Limitation of rights is the restriction of the owner's rights in certain cases, the part that is limited by law is to be shared with other subjects, the right subject is not allowed to prevent these subjects from exercising their rights.

Particularly for BMKD, due to the characteristic of absolute monopoly of the owner, the restriction of the above rights prescribed by law for BMKD owners can be said to be narrower than for other types of subjects.

Industrial property is different from patents or industrial designs. This means that industrial property owners are not affected much by regulations on restrictions of such rights, for example, industrial property is not affected by regulations on prior users, regulations on transfer of use rights according to decisions of competent state agencies.

Because of this limitation of rights, the law on intellectual property rights for business premises not only protects the rights of business premises owners but also protects other entities. The limitation of rights basically does not affect the interests of business premises owners but ensures social justice, creating conditions for social relations to develop equally and harmoniously.

The limitation of industrial property rights over business information is reflected in the fact that the owner of the business information is not allowed to prevent others from disclosing or using the business information in certain cases prescribed by law. For example, in the case where a state agency has the right to use the business information for non-commercial purposes such as research, teaching, experimentation or other non-commercial purposes (Point c, Clause 3, Article 125 of the Law on Intellectual Property). This provision stems from the limitation of industrial property rights, a characteristic of intangible assets, which is the sharing of benefits of the owner of the object with other entities in order to harmonize the interests of related entities in society. The state protects the rights of business information owners but to a certain extent also protects other entities in society so that social relations can develop together. On the other hand, when a state agency uses the business information for non-commercial purposes as mentioned above, it does not affect the use of the business information by the owner. If we absolutely protect the owner of the intellectual property rights and do not allow anyone to use the intellectual property rights other than the owner, it will hinder the development of society. Intellectual property rights in general and industrial property rights in particular have

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