Recent developments

CPTPP Agreement
At the November 2017 Asia Pacific Economic Cooperation Summit in Da Nang, Vietnam, the 11 countries remaining in the Trans-Pacific Partnership (TPP) took a significant step forward to finalise a new agreement now referred to as the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP).

In the absence of a key player – the United States – in this new cross-border deal, the CPTPP is reported to have largely incorporated the TPP on the one hand but 'suspended' certain intellectual property provisions on the other hand, in the hope of reviving them when the United States rejoins the agreement at some point in the future. Thus, according to Annex II of the Trans-Pacific Partnership Ministerial Statement, the CPTPP has ceased the effect of many intellectual property-related and drug-specific articles that the United States rigorously promoted when the TPP was being negotiated.

On 12 November 2018, the Vietnam National Assembly officially ratified the CPTPP, which officially entered into force for Vietnam on 14 January 2019. The CPTPP contains several requirements that will make it necessary for Vietnam to amend its IP Law, primarily regarding patent, trademark, copyright and the enforcement of IP rights. Among other things, the registrability of non-traditional trademarks such as sounds or scents is scheduled to be incorporated into domestic legislation by 2021. Vietnam also expects to accede to the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) by 2022.18 Accordingly, the regulatory framework for protection of copyrights in the digital environment will be subject to further changes.

Protocol amending the TRIPS Agreement
On 16 January 2017, the President of Vietnam signed Decision No. 109/2017/QD-CTN approving the Protocol amending the TRIPS Agreement (the Protocol) and the Importing Member's General Notification of Intent to Use. The Protocol took effect from 23 January 2017.

With this event, Vietnam, as a country lacking production capacity, can import pharmaceutical products made under compulsory licences from countries where pharmaceuticals are patented in emergencies or extremely urgent situations.

In accordance with Paragraph 2 of the Annex to the TRIPS Agreement attached to the Protocol, Vietnam, as an eligible importing member, must submit a notification to the Council for TRIPS, that:

specifies the names and expected quantities of the products needed;
confirms that Vietnam has established that it has insufficient or no manufacturing capacities in the pharmaceutical sector for the products in question; and
confirms that, where a pharmaceutical product is patented in its territory, it has granted or intends to grant a compulsory licence in accordance with Articles 31 and 31 bis of this Agreement and the provisions of the Annex.

European Union–Vietnam Free Trade Agreement
On 26 June 2018, the EU–Vietnam Free Trade Agreement (EVFTA) was separated into two agreements in terms of trade and investment, which are the EU–Vietnam Investment Protection Agreement (EVIPA) and the EVFTA. At the same time, the legal review of the EVIPA and EVFTA's final texts was formally concluded. Chapter 12 of EVFTA regulates intellectual property (IP) commitments with a focus on general principles, protection standards of the subject matter of IP rights and enforcement measures of IP rights. The EVFTA focuses more on geographical indication (GI) than the CPTPP by setting out detailed and strict regulations on the protection of GIs, thus, Vietnam is expected to amend its regulations in this area.

On 12 February 2020, the European Parliament ratified both EVFTA and EVIPA. Vietnam expects to ratify the agreements in May 2020. Thereafter, EVFTA will come into force one month after the EU and Vietnam have notified each other that their domestic legal procedures have been completed. Meanwhile, EVIPA will next need to be ratified by the EU's Member States before coming into effect.

iv Hague Agreement Concerning the International Registration of Industrial Designs
On 30 September 2019, Vietnam acceded to the Geneva Act (1999) of the Hague Agreement Concerning the International Registration of Industrial Designs. The Agreement entered into force for Vietnam on 30 December 2019. Under the Agreement, the registration process for industrial designs is simplified, allowing applicants to seek protection in multiple member states with minimum formalities.

Regional Comprehensive Economic Partnership (RCEP)
The RCEP was first launched by ASEAN member states and their trading partners, including China, India, Australia, New Zealand, Japan and Korea, in 2012. After India's withdrawal, the group of 15 states announced their conclusion of negotiations on 4 November 2019.

In a virtual ceremony held on 15 November 2020, these 15 states signed the RCEP after almost eight years of negotiations. Large parts of the RCEP's Intellectual Property chapter repeat global standards that already are set out in TRIPS, CPTPP and EVFTA. The provisions under this treaty are not particularly advanced, but there are undoubtedly changes that Vietnam needs to make to ensure compliance.

Trends and outlook

In the next five to 10 years, it is likely that Vietnam's legal framework will witness significant changes in the intellectual property environment. Vietnam is amending its IP Law to ensure compliance with the commitments under the recently ratified free trade agreements, including the CPTPP, the EVFTA and the RCEP.

Under the current text of the CPTPP, Vietnam shall allow the registrability of scent and sound trademarks, enshrine stronger pharmaceutical protections and generally offer wider ranges and higher standards of patent protection. With regard to the enforcement of IP rights, the CPTPP also introduces stricter sanctions indicated by criminal procedures and penalties for IP infringers. The enforcement of such regulations will no doubt increase business costs for corporates, especially those using pirated software or consuming infringing products.

The implementation of CPTPP regulations would pose great difficulties for Vietnam's policymakers, as Vietnam would have to provide and implement effective economic and legal strategies appropriate to its development level and enforcement capacity. In other words, Vietnamese IP legislation would have to undergo material changes to align itself with the international standards set forth by the CPTPP. Some possible solutions that are being implemented include:

1. promoting research activities;
2. raising legal awareness; and
3. implementing regulations step by step in accordance with the CPTPP and other international treaties.
Changes in the law might take some time, but the implementation of international IP standards would make Vietnam a strong contender in the global economy.

On a related note, the European Union–Vietnam Free Trade Agreement (EVFTA) came into effect in August 2020. One of the most notable commitments under the IP Chapter of the EVFTA is geographical indication protection. Since then, the EU has recognised and protected 39 Vietnamese geographical indications, while Vietnam has recognised and protected 171 European geographical indications (169 if two geographical indications from the United Kingdom are excluded).

 

Source: Lexology

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