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Protection of industrial property rights for geographical indications under Vietnamese law - 1


ACADEMY

VIETNAMESE SOCIAL SCIENCES

Academy of Social Sciences

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PHAM THI MY DUNG

Protection of industrial property rights for geographical indications under Vietnamese law - 1


INDUSTRIAL PROPERTY RIGHTS PROTECTION FOR GEOGRAPHICAL INDICATIONS UNDER VIETNAMESE LAW


Major: Economic Law Code: 60.38.01.07


MASTER'S THESIS IN LAW


SCIENTIFIC INSTRUCTOR: DR. LE MAI THANH


HANOI, 2016


COMMITMENT


I certify that this is my own scientific research work. The figures, examples and citations in the thesis ensure reliability, accuracy and honesty. The scientific conclusions of the thesis have never been published in any other scientific work.

Thesis author


Pham Thi My Dung


INDEX

INTRODUCTION 1

Chapter 1: THEORETICAL AND LEGAL BASIS FOR PROTECTING INDUSTRIAL PROPERTY RIGHTS FOR GEOGRAPHICAL INDICATIONS 6

1.1 Overview of industrial property rights for geographical indications 6

1.2 Contents of industrial property protection for geographical indications 14

1.3 Mechanism for enforcement of industrial property rights for geographical indications 19

1.4 Legal framework for protecting industrial property rights for geographical indications in Vietnam 23

Chapter 2: CURRENT STATUS OF LAW ON PROTECTING INDUSTRIAL PROPERTY RIGHTS FOR GEOGRAPHICAL INDICATIONS 27

2.1 Current status of law establishing industrial property rights for geographical indications ..27

2.2 Legal status on industrial property rights for geographical indications 33

2.3 Current status of enforcement of industrial property rights for geographical indications 41

Chapter 3: DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW ON PROTECTING INDUSTRIAL PROPERTY RIGHTS FOR GEOGRAPHICAL INDICATIONS 55

3.1 Directions for perfecting Vietnamese law on industrial property protection for geographical indications 55

3.2 Solutions to improve Vietnamese law on industrial property protection for geographical indications 62

CONCLUSION 69

LIST OF REFERENCES 71


LIST OF ABBREVIATIONS


BTA: Bilateral Trade Agreement (BTA Agreement) Vietnam-US Bilateral Trade Agreement

CDDL: Geographical Indication

EC: European Community

European Community

EVFTA: Vietnam - EU Free Trade Agreement

EU: European Union European Union

Lisbon: Lisbon Agreement for the Protection of Appellations of Origin and their International Registration

Lisbon Agreement Concerning the International Registration and Protection of Appellations of Origin, 1958, as amended in 1979

SHCN: Industrial property SHTT: Intellectual property TGXX: Appellation of origin

TPP: Trans-Pacific Partnership Agreement (TPP Agreement) Trans-Pacific Partnership Agreement

TRIPs: Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement)

Agreement on Trade-Related Aspects of Intellectual Property Rights

WTO: World Trade Organization ( WTO Organization)

World Trade Organization


INTRODUCTION


1. Urgency of the topic

2016 is the 9th year that Vietnam officially became a member of the WTO and the TRIPs Agreement was signed, marking Vietnam's integration into the global economy. In this Agreement, along with trade in goods and trade in services, intellectual property is one of the basic pillars, playing a decisive role in negotiating and implementing international commitments. In the protection of intellectual property rights in Vietnam in recent years, the trend of actively exploiting intellectual property objects has been significantly recorded.

Since ancient times, the competitive advantage in trade of a product over another product has been mainly due to the unique characteristics and qualities that geographical conditions such as climate and geology of the geographical area bring. Geographical regions with famous landmarks have brought advantages to similar products such as Bordeaux wine of France, Bohemia crystal of the Czech Republic, Frankfurter sausage of Germany... Even in Vietnam, products that are familiar to all people thanks to the association of landmarks such as Thanh Ha lychee, Doan Hung grapefruit, Tan Cuong tea, Phu Quoc fish sauce, Chu Dau pottery... The landmarks that go with the products remind consumers not only of the origin of the product but also of the special characteristics and quality of the product thanks to that geographical origin. Geographical information is gradually becoming an intangible commercial indication of a product but contributes to increasing the value of the product and plays an increasingly important role in life in general and in commercial activities in particular.

Along with the process of economic globalization and trade liberalization, countries around the world are increasingly interested in bringing their products into other countries' markets through the use of GIs. However, due to the enormous commercial benefits that GIs bring to users,


use, and other entities, for profit, are willing to find every way to take advantage of that reputation and prestige, causing significant damage to the countries owning GIs. Therefore, the need to strengthen research on legal issues on protecting GIs in commerce through the thesis topic " Protection of industrial property rights for geographical indications under Vietnamese law " meets the current urgency.

2. Research status of the topic

In the world, the term Geographical Indication and regulations related to the protection of this subject were first stipulated in the TRIPs Agreement (1994). After the TRIPs Agreement was born, the issue of protecting Geographical Indication at the national and international levels became the subject of many heated and fierce debates at the WTO negotiation table as well as among experts. Many articles by legal scholars have discussed the provisions on protecting Geographical Indication in the TRIPs Agreement, as well as the compatibility of the laws of some countries with this important international treaty. Among them, some valuable documents are: Protection of Geographical Indication in the TRIPs Agreement - The protection of Geographical Indication in the TRIPs Agreement by Albrecht Conrad; Geographical Indication and Trademarks - the road from Doha by Burkhart Goebel [19]; and Expanding the Protection of Geographical Indications of Origin under TRIPS: Old Debate or New Opportunity by Irene Calboli [21]. These works mainly study the provisions of the TRIPs Agreement on the protection of geographical indications and the compatibility of national laws with this important international treaty.

In Vietnam, the protection of IP rights for geographical indications is still a relatively new issue in both theory and practice. There have been a number of scientific research topics, theses, and dissertations on IP in general, mainly focusing on exploiting the issues of state management of IP. There are many theses and research works that have mentioned the legal aspects of IP rights as well as many programs and projects that have been and are being implemented.


is being developed to improve understanding of IP rights in general and IP rights for geographical indications in particular, specifically:

- In 2005, the Ministry of Industry and Trade's scientific research project on "Geographical Indications: commercial aspects in export" studied this issue from a commercial perspective. This project was limited to the export of products bearing geographical indications; theoretical issues on industrial property rights for geographical indications have not been studied;

- In 2007, Pham Thanh Tuan's Master's thesis in law on "Registration, management and use of geographical indications in Vietnam" studied the issue of geographical indication protection mainly from a legal science perspective [14];

- In 2008, Vu Hai Yen's doctoral thesis on "Protection of geographical indications in the context of international economic integration" studied the issue of protection of geographical indications from a legal perspective. The content of the thesis focused mainly on the issue of establishing and protecting industrial property rights for geographical indications [15].

- In 2010, Le Thu Ha's PhD thesis in economics on "Protection of industrial property rights from a commercial perspective for Vietnam's geographical indications in the context of international economic integration" also deeply researched the issue of protection of geographical indications from a commercial perspective [9];

In fact, the protection of geographical indications requires a thorough and in-depth study to improve the law on protection and enhance the effectiveness of the enforcement of intellectual property rights for geographical indications. Therefore, based on the determination of the current state of intellectual property law and related branches of law, continuing to analyze and study theoretical issues on the protection of intellectual property rights for geographical indications is an urgent need today.

The protection of intellectual property in general and industrial property in particular has only recently begun to receive attention, but not to the extent required. Especially for geographical indications - one of the objects of industrial property protection, there are very few articles and research works on this issue in Vietnam. However, this thesis only focuses on the research


In-depth analysis of the protection of intellectual property rights for geographical indications under Vietnamese law.

3. Research purpose and tasks

Purpose: The topic comprehensively studies current legal regulations of Vietnam on protection of geographical indications to enhance the effectiveness of protection of industrial property rights for geographical indications in Vietnam.

Task: The thesis studies geographical indications, intellectual property rights for geographical indications and compares geographical indications with some other intellectual property objects. On that basis, it studies the provisions of the international legal system on geographical indications and the current Vietnamese legal provisions on the protection content of geographical indications. Thereby, it assesses the current status of geographical indication protection activities in Vietnam in order to propose some solutions to contribute to improving the law on geographical indication protection in Vietnam.

4. Research object and scope

Research object: law on protection of intellectual property rights for geographical indications, practice of enforcement of intellectual property rights protection for geographical indications in Vietnam.

Scope of research: research on Vietnamese law on IP protection for current geographical indications without going into previous related subjects such as TGXX and research on Vietnamese law on IP protection for geographical indications from 2005 to present.

5. Methodology and research methods

The basic methodological basis of the research topic is dialectical materialism and historical materialism of Marxism-Leninism.

The research method used in this thesis is the method of analyzing, evaluating, and synthesizing current Vietnamese law on the issue of protecting geographical indications. The thesis points out some limitations and shortcomings of Vietnamese law on protecting geographical indications, thereby proposing some solutions to improve legal regulations. In addition, the thesis also uses legal methods

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