Regulations and pratice in protection of GIs in Vietnam

February 26, 2014

Vietnam is an agricultural country having numbers of special products which can be protected as GIs. Vietnam Government is taking interest in intensifying GI protection activities in order to enhance the reputation, quality of the product, thence to increase income for farmers, to create jobs for the local region. Vietnam Regulations on GIs have been promulgated corresponding to the requirement of TRIPS Agreement.

1. Legal regulations on GIs protection

  • GIs is a word, name, sign, symbol or image – used to indicate the product which originate in the specific area, locality, region or country;
  • Economic value and social significance of the protection of GIs has been affirmed in reality;
  • GIs protection is also considered as an effective method to enhance the economic value and competition ability of the products;
  • The significance of protection of GIs is only achieved since the GI control system is established through which the quality, origin and traceability of the product is guaranteed, parallel with a trading system in order to enlarge the supplying market.

1.1 Legal documents on GI protection

  • IP Law 2005: including regulations on IP rights in general and GIs in particular;
  • Decree No. 103/2006/ND-CP dated 22/9/2006 of the Government providing detailed regulations on industrial property of the IP Law;
  • Decree No. 106/2006/ND-CP dated 22/9/2006 of the Government on settling infringements in industrial property;
  • Circular No. 01/2007/TT-BKHCN dated 14/02/2007 of the Ministry of Science and Technology providing guidelines for implementing the Decree No. 103/2006/ND-CP dated 22/9/2006 of the Government providing detailed regulations on industrial property of the IP Law.

1.2. Contents of legal regulations on GI protection

(i) The concept of GI:

  • Geographical indication is a sign used to indicate a product originating from a specific area, locality, region or country.

(ii) Conditions of GI protection:

  • The product having the geographical indication originates from the area, locality, territory or country corresponding to such geographical indication;
  • The product having the geographical indication has reputation, quality or characteristics essentially attributable to the geographical conditions of the area, locality, territory or country corresponding to such geographical indication,
  • Not belongs to the case which can not be protected as geographical indications as regulated in the Article 80 of the IP Law.

(iii) Right to file application for registration of GI:

  • The right to register GIs of Vietnam belongs to the State.
  • The State allows organizations, individuals producing the product bearing the GI, collective organizations representing such organizations and individuals or the administrative authorities of the locality to which the GI pertains to exercise the right to register such GI. The person who exercises the right to register a GI shall not become the owner of such GI (Article 88 – IP Law);
  • Foreign individuals, organizations who have right to the GI in accordance with the legal regulations of the origin country have right to register such GI in Vietnam (Article 8 – Decree No.103).

(iv) Application for GI registration:

  • Including: (i) Request for registration of GI, (in form promulgated by NOIP; (ii) The Description of the peculiar characteristics, quality of product bearing GI; (iii) Map of geographical area; (iv) Receipts evidencing payment of the application fees and charges;

(v) Description of the peculiar characteristics of the product bearing GI:

  • Enumerating the peculiar characteristic/quality of the product bearing GI which is defined by the geographical conditions; and/or
  • Reputation of the product bearing GI which is defined by the geographical conditions; and
  • Geographical conditions attributing to the peculiar characteristics or quality, or reputation of the product;
  • The relationship between the peculiar characteristics, quality or reputation of the product and the geographical conditions .

The Description peculiar characteristic/quality/reputation of the product must be accompanied with the document certified that such information is true and correct (in accordance with the experiment and investigation results).

(vi) Description of the geographical region:

  • The boundary of geographical region has to be specified in words or by map, in which  map of geographical region must consists of so sufficient information that the geographical region can be determined correctly with the natural conditions contributing to the peculiar characteristic/quality/reputation of the product.

(vii) Office of receiving application and registering GI

  • The competent office of receiving, examining application and granting Certification for registration of GI is NOIP (Add: 386 Nguyen Trai Str., Thanh Xuan District, Hanoi).

(viii) Right to own and use of GIs

  • The owner of Vietnam’s GIs is the State.
  • The State grants the right to use GIs to the organizations or individuals producing the products bearing GI in a relevant locality and putting those products out to the market.  The State shall directly exercise the right to manage GIs or grant that to the organization acting as the representative of all other organizations or individuals granted with the right to use GIs.

(ix)       Management of GIs

  • The State have right to directly manage GIs or authorize such right to the organization acting as the representative of all other organizations, individuals granted with the right to use GIs.
  • Office, Organization have right to manage GI should be:
    • The People’s Committee of the District having GIs if such GI belong to 1 locality;
    • The People’s Committee of the District acting as the authorized representative agent of the other ones having GIs if such GIs belong to several localities;
    • Other Offices, organizations which are authorized by The People’s Committee of the District provided that such offices, organizations acting as the representative of all other organizations, individuals granted with the right to use GIs.

2. Practice of GI protection in Vietnam

2.1. Practice of GI registration

  • The estimated statistics up to 15/10/2007:
  • Over 195 geographical names used with the products, in which:
    •  46 geographical names is being protected;
    • 26 other geographical names have been in pending registration application in different forms;
  • From year 2000 up to now: 20 GI applications of Vietnam have been filed, in which:
  • 11 GIs have been registered
  • 8 applications do not meet the formality requirement in order to be accepted for registration.
  • It is popular in Vietnam recently that the geographical names are registered for special products in some different forms:
    • Normal trademark (“Ben Tre” for coconut candy – the product of Ben Tre Province);
    • Collective trademark (“Ha Giang” for orange – the product of Ha Giang Province);
    • Appellation of Origin (“Phu Quoc” for fish sause – the product of Phu Quoc island District);
    • Geographical Indication (“Vinh” for orange – the product of Nghe An province).

Practice of receiving application in NOIP shows that: the demand of registration GIs used for special products is increasing. However, there are some inadequacies, such as:

  • Some geographical names satisfy the requirement to be protected as GIs but they were registered as trademarks already, thence, the interests of producers and traders of products bearing such geographical names are effected; right to use such geographical names for their products are in risk of being prohibited by the trademark owners;
  • Right to use GIs – which is considered as the State’s assets, need to be authorize to the local administrative authorities and the  local community – however, since they are registered as trademark, right to use such geographical names belongs to one/some limited subjects. Thence, the disputation between trademark owners and producers, traders of the products in using of the geographical names is arisen.

Cause of the above-mentioned situation:

  • Awareness of the local management offices in value of geographical names is limited, they agreed to grant right to use such geographical name in trademark without considering the interests of the other producers; besides, awareness of the local producers is limited also, they do not combine with each other to establish the collective mark or GI;
  • The objective cause is that establishment and management of GI is a new, difficult and costly matter. Producers and local administrative authorities are in lack of knowledge, methodology, equipment as well as expenditure to do this.

Methods of NOIP to enhance GI registration:

  • Intensifying support and consultation activities in methodology and practice relating registration of GIs:
    • The Geographical Department was established in order to examine application for GI registration and propose NOIP to grant the Certificate of GI registration;
  • The IP Support and Consultation Center was established as well to provide consultation and guiding to organizations, individuals in establishing, protecting and exploiting IP assets including GIs, through certain activities such as: propagandizing and disseminating of the legal regulations and applying these in registration, management of GIs by organizing seminars and training courses; publishing propagandizing documents, carrying out field surveys for the purpose of providing consultation and guiding to the localities to set up projects on researching scientific and practice basis for registering GIs.
  • To court the assistance in technique and expenditure from foreign countries for GI registration: numbers of programs and projects of foreign countries have been carried out such as: the Special Programme on Cooperation in the field of IP (SPC); EC-ASEAN IP rights cooperation Program (ECAPII)…;
  • Setting up and carrying out the National Program on supporting to develop the enterprises’ IP assets which attach special importance to GIs: this Program is approved by the Prime Minister in the Decision No. 68/2005/QD-TTg dated 04/4/2005 with following aims: (i) to enhance the awareness on IP matter of the enterprises, thence they can actively establish, register and exploit their IP assets and (ii) to enhance the competition ability of the enterprises by supporting to develop their IP assets. One of the Program’s contents is to support for registration of GI for local special products.

2.2. Practice of GI management

GI is a special IP subject matter, therefore, after being registered, it needs to be managed and controlled.

The purpose of management of GIs is to guarantee the legal  right to use GIs of relevant organizations and individuals; to prevent and prohibit illegal actions in using of GIs; to guarantee that quality of the product bearing GIs is put in close  control system in order to satisfy the demand of quality and origin as stated in the Certification of registration.

With regard to the authorization to use GI :

  • Before the IP Law comes into force, NOIP have right  to grant  Certification of using Appellation of Origin after examining Application for registration of right to use Appellation of Origin. However, no Certification has been issued because these Applications do not meet the promulgated requirements.
  • In accordance with the IP Law, from date of 1/7/2007, right to authorize the use of GIs belongs to The People’s Committees of the Province or Offices, Organizations have authorization from such agent.

Up to now, the authorization to use GIs has not been carried out since the localities have not yet established organization mechanism and documents to be the foundation for executing this activities.

In order to surmount this situation, NOIP has organize to research the experiences of the other countries, and hence propose a process to establish GI management system used for special agricultural products which is suitable to specific conditions of Vietnam.

Outline of the organizing model of the GI management system in accordance with NOIP’s proposal:



2.3. Some activities and initial results in GI management

Management of GI “Hai Hau” for aromatic rice:
The local authorities co-operated with specialized office to establish and operate the standard technical process in producing, controlling and trading of the products through the collective organization acting as the representative of the producers and traders (Hai Hau Aromatic rice Association). When the management system is put into the stable operation,  the Association filed Application for registration of GI.

Management of GI “Moc Chau” for shan tuyet tea:
After the Appellation of Origin is protected, the growing technique is provided to the farmers and force them to follow. A processing factory was built in order to process tea on-site. In 2004, 90 ha tea were newly grown, bring the total tea area of the commune to over 400 ha. The processing tea phrase is enlarged, from 2 production line at the beginning to 7 ones at this time with the total capacity reach to over 170 tons/day. The raw material areas are zoned from intensive cultivation to processing phrase in order to guarantee the separated flavor for each kind of products.

Management of GI “Doan Hung” for pomelo:
The People’s Committee of  Phu Tho Province approved the project on development of the special pomelo of Doan Hung District up to 2010 with the scale 1.000 ha. This project is applied in 16 communes that create a production region, regular job and income for thousands of workers. The People’s Committee entrusted the DOST to be the presider  to carry out the procedure for registration of Appellation of Origin “Đoan Hung”. The Appellation of Origin “Doan Hung” was registered in 8/2/2006.

Association of Producing and Trading Doan Hung Pomelo was established to manage the using of labels and packages and to  prohibit illegal actions in using of GI; The technical process of growing, caring, harvesting and preserving Doan Hung pomelo is promulgated; Label and package system is designed for common applying; Doan Hung pomelo is supplying by the trading system of the Association under the strict control system in quality, label and package.

In order to operate the management and exploitation system of Doan Hung pomelo, the Department of Science and Technology of Phu Tho Province has set up a project within the framework of the National Program of supporting to develop enterprises’ IP assets.

Conclusion

  • Vietnam is an agricultural country having numbers of special products which can be protected as GIs. Vietnam Government  is taking interest in intensifying GI protection activities in order to enhance the reputation, quality of the product, thence to increase income for farmers, to create jobs for the local region. Vietnam Regulations on GIs have been promulgated corresponding to the requirement of TRIPS Agreement.
  •  GI registration activities have been enhancing and getting the satisfactory results which is illustrated by the increasing numbers of protected GI in recent years.

GI management activities have been paid more attention by the State Authorities, localities and associations. The initial results is fairly satisfactory. However, in order to develop these activities, it is not only required the attention of the State Authorities and the Producers… but also the investment of time, effort and expenditure to effectively establish and operate the management system for each GI.