Protection of industrial property rights for geographical indications under Vietnamese law - Ninh Thi Thanh Thuy

for geographical indications

Firstly , legal regulations on the enforcement of industrial property rights need to be further improved to create consistency and feasibility.

According to the assessment of important partners in current international economic relations, Vietnam has made many efforts in building intellectual property laws, but the issue of enforcement is a weakness that needs to be overcome. Intellectual property infringement and violations of intellectual property protection laws are showing signs of becoming more and more common, and the complexity and seriousness of intellectual property infringement are showing signs of increasing. Institutions supporting the enforcement of intellectual property rights have not really taken part. Many associations have not yet realized the need to stand up to protect the rights of their members, and the awareness of law compliance of the majority of people in society is not high...

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To improve the law on intellectual property enforcement, in my opinion, the following solutions can be implemented:

- Perfecting the mechanism to ensure the enforcement of intellectual property rights in administrative law:

Although acts of intellectual property infringement are handled by administrative measures in the Intellectual Property Law quite completely, the following shortcomings need to be overcome:

There must be consistency between the Law on Intellectual Property and the Law on Competition in determining the applicable law to handle acts of unfair competition in intellectual property. There is no consistency between Clause 2, Article 56 of the Law on Competition 2005 and Clause 3, Article 211 of the Law on Intellectual Property in determining the authority to handle acts of infringement of intellectual property rights. While Clause 3, Article 211 of the Law on Intellectual Property stipulates that "Organizations and individuals who commit acts of unfair competition in intellectual property shall be subject to administrative sanctions in accordance with the provisions of the law on competition", Clause 2, Article 56 of the Law on Competition

2005 again defines that "The settlement of competition cases related to unfair competition acts (including unfair competition acts in intellectual property) shall be implemented in accordance with the provisions of the Competition Law and the law on handling administrative violations". Thus, the Intellectual Property Law defines that the authority to settle unfair competition acts in intellectual property is only handled by the competition agency, but the Competition Law 2005 further defines the role of other administrative settlement agencies in accordance with the law on handling administrative violations. This inconsistent provision will create inconsistency in the application of the law, leading to unfair competition acts in intellectual property being handled differently when based on two different laws but having the same legal value in terms of enforcement.

The application of the Law on Intellectual Property will eliminate the applicable law and the authority of other intellectual property rights violation handling agencies when handling unfair competition acts related to intellectual property. However, if this settlement is applied according to the 2005 Competition Law, it will create a combination in the application of competition law and the law on handling administrative violations of intellectual property, between the competition agency and the specialized agency on handling intellectual property rights violations in handling unfair competition acts in intellectual property. Each option has its advantages and limitations. However, if viewed as a whole, the competition agency in our country is still very new, the legal system on competition is not complete, and in practice, it is very difficult to determine unfair competition acts in intellectual property.

Articles 39, 40, 41, 45, and 46 of the Competition Law 2005 stipulate unfair competition acts. If these acts are determined to be unfair competition in intellectual property, they must be further considered from the perspective of the law on handling administrative violations in the field of intellectual property to determine the constituent elements of acts of infringement of intellectual property rights in the field of competition. Therefore, it is necessary to supplement the provisions in

Clause 3, Article 211 of the Law on Intellectual Property is as follows: Organizations and individuals who commit acts of unfair competition in intellectual property shall be subject to administrative sanctions according to the provisions of the law on competition and the law on handling administrative violations. This addition will not simultaneously apply both measures in the law on competition and the law on handling administrative violations to resolve a violation. If sanctions in the law on competition have been applied, sanctions in the law on handling administrative violations will no longer be applied, but will mainly be the basis for competent authorities to determine violations and apply appropriate sanctions.

- Perfecting the mechanism to ensure the enforcement of intellectual property rights in civil law:

Streamlining procedures to reduce inconvenience and costs in resolving disputes over industrial property rights under civil procedure law; it is necessary to refer to some temporary emergency measures that have been applied in the practice of resolving intellectual property rights disputes in some countries in the world to apply them appropriately to the practice and socio-economic conditions of Vietnam.

- Perfecting the mechanism to ensure the enforcement of intellectual property rights in criminal law:

It is necessary to issue documents guiding the implementation of provisions of the Penal Code related to the trial of criminal cases of intellectual property rights infringement.

- Perfecting the mechanism to ensure the enforcement of intellectual property rights through border control measures:

There should be specific regulations on the ex officio rights of the Customs force in the process of enforcing intellectual property rights protection at the border and the fees that the right holder must pay when registering a request for the Customs authority to inspect and supervise intellectual property in order to encourage the prevention of infringements rather than handling infringements that have already been committed.

Second , geographical indications can only be fully and effectively protected if they are supplemented by trademark law and unfair competition law. That means that in addition to improving the legal provisions on geographical indication protection, we must continue to improve trademark law and unfair competition law, such as detailed regulations and guidelines on the registration of certification marks and collective marks.

The Law on Intellectual Property only stipulates the required documents in the application for a certificate of registration of collective trademarks and certification trademarks, but does not stipulate the specific contents of the documents required in the application; the order, procedures, and tasks to be performed when examining applications for registration of these types of trademarks. According to current regulations, the Intellectual Property Office must still rely on the regulations on examination of normal trademark applications to examine applications for registration of certification trademarks and collective trademarks, although the nature of these types of trademarks is very different. This will cause confusion and difficulties not only for the applicant in the process of completing the application but also for the Intellectual Property Office when examining the application.

3.3. Proposing some solutions to enhance the effectiveness of industrial property protection for geographical indications in Vietnam

Vietnam has officially become the 150th member of the World Trade Organization (WTO), therefore, Vietnam's geographical indications are protected in 149 other WTO member countries. However, up to now, no Vietnamese geographical indication has been registered for protection abroad. In the context of international economic integration, the rights holders of Vietnamese geographical indications also need to promptly promote the registration of geographical indication protection in countries that are potential markets, especially in countries with a large Vietnamese population such as the United States, France, Germany, Russia, etc. The registration of geographical indication protection abroad is aimed at protecting and promoting the

promote prestige, reputation and prepare conditions for commercialization of Vietnamese specialties, on the other hand, help prevent the possibility of geographical indication appropriation (previously, there was a case where Vietnam's Phu Quoc geographical indication was registered as a trademark in France by a Thai enterprise).

To create a breakthrough in protecting geographical indications, we need the efforts of both state agencies as well as entities with rights and interests associated with geographical indications.

Firstly , the State creates a mechanism to support the protection of geographical indications. That does not mean that the State will replace businesses or people in the work of preparing registration dossiers or managing the exploitation and protection of geographical indications. The State will invest in research to build standard models for establishing geographical indication registration dossiers as well as a model for managing products bearing geographical indications. Even for geographical indications that have been registered, perfecting the management mechanism for products bearing geographical indications is also a key factor to ensure truly effective protection. The State has an open mechanism to facilitate and encourage the establishment of professional associations for the production and trading of products bearing geographical indications.

Experience from some countries shows that managing geographical indications through associations is the most effective method, because these are organizations that represent the interests of producers and traders of products bearing geographical indications, which they themselves established and managed. The State ensures effective protection of rights to geographical indications by legal means. Acts of counterfeiting geographical indications must be prevented and promptly handled. Only when this is done will the above activities of the State be meaningful.

In addition, state management agencies at all levels need to conduct propaganda and dissemination to the people about the benefits of protecting geographical indications, their rights and responsibilities in protecting a type of state-owned property that they are authorized to exploit and manage.

Second , we have many products with the potential to develop geographical indications. However, the development of geographical indications has not been carried out systematically and has not brought about the desired results because this is a new issue, the awareness and capacity of Vietnamese manufacturers are still limited, and the attention, investment and support from the state is not much. Therefore, in order for the development of geographical indications to be effective, in addition to the state's support policies through specific programs and projects, it is necessary to raise awareness among manufacturers so that they are proactive and voluntarily participate in the development of geographical indications, and local state management agencies also need to promote their role in proactively investing, supporting and guiding manufacturers in developing geographical indications.

Entities with the right to use geographical indications must clearly understand the benefits and actively participate fully in protecting geographical indications. Whether the protection of geographical indications is truly effective or not depends mainly on those who directly use the geographical indications. Entities with the right to use geographical indications need to understand that geographical indications are valuable assets that must be effectively managed and exploited to serve their own interests first and foremost.

Third , industry associations must fully demonstrate their role as representatives of production and business entities so that they can exploit geographical indications most effectively. The organizational structure and operation methods of the association must ensure the goal of effective management of geographical indications instead of creating a burdensome institution for those who have the right to use this object. European countries have been very successful in the model of industry associations and we can learn from those valuable experiences and apply them appropriately to the conditions of Vietnam. Associations must also take proactive actions and actively coordinate with state management agencies in protecting against acts of counterfeiting geographical indications.

Collective organizations of producers and traders can be established in the form of cooperatives, unions, and associations. Due to limited awareness of producers and traders,

production, need support and advice from state management agencies (on science and technology, on product manufacturing industry, on non-governmental organizations, associations...) specifically the Department of Science and Technology, Department of Agriculture and Rural Development, local Department of Home Affairs in mobilizing the establishment, building application documents for establishment, organizing congresses of delegates and other procedures to recognize the organization of manufacturers.

Fourth , there needs to be a clear and specific distinction between the internal management activities of collective organizations and the external management activities of state management agencies. In the process of operating the internal management system for the use of geographical indications, the organizations of producers cannot yet build and organize the implementation of mechanisms, processes, and organizational management systems on their own. Therefore, state management agencies need to support the methodology, techniques, and funding so that the collective organizations of producers can perform their functions.

The collective organization of producers and traders of products bearing geographical indications must have an organizational structure and authority appropriate to the nature of each type of product as well as the specific conditions of the locality. Producers and traders of products must participate in the process of developing and approving mechanisms, procedures, and control systems because they are the ones who understand their products and know whether the control measures put forward are practical and applicable, and they are the ones who will apply those control mechanisms and procedures.

Fifth , continue to perfect the intellectual property enforcement apparatus such as creating orientation and unity in intellectual property rights enforcement activities; creating a legal basis for the relationship between the right holders and competent enforcement agencies; strengthening the activities of Customs and Border Guards in inspecting and preventing imported and exported goods related to intellectual property rights; tax agencies, economic police, coast guard, and cultural security must have the task of detecting violations of intellectual property rights through activities.

professional and technical expertise, transfer these cases to competent agencies to handle violations; improve functions and tasks, strengthen the organization and staffing of State management agencies on intellectual property rights from the central to local levels; prepare for the organization of specialized courts to try intellectual property rights dispute cases; consolidate and develop the intellectual property rights enforcement support system; invest in modern facilities and techniques for the system of intellectual property rights enforcement agencies so that these agencies can strengthen inspection, examination and timely and strict handling of violations.

Sixth , focus on training and improving the qualifications of officials of enforcement agencies as well as agencies protecting industrial property laws. Gradually improve the team of officials participating in adjudication activities, moving towards considering the possibility of establishing specialized sub-committees for adjudication of intellectual property in the Court system.

Seventh , promote international cooperation activities to improve material, technical and human capacity to participate in activities on protecting geographical indications and enhance the general understanding of the whole society about geographical indications. In addition, the authorities should soon promote negotiations on bilateral international treaties on recognizing and protecting geographical indications with countries that are potential markets for Vietnamese agricultural products; at the same time, increase cooperation in the field of geographical indications with countries such as Switzerland (special cooperation program between Vietnam and Switzerland in developing geographical indications), France (has provided good support to the Hai Hau Rice Production Association to register the geographical indication "Hai Hau" for rice in Vietnam)...

Protection of industrial property rights for geographical indications under Vietnamese law - Ninh Thi Thanh Thuy - 16

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