EVFTA to protect nation’s IP rights

Nguyen Hai Minh - Vice chairman of Eurocham Vietnam

Firms and citizens of both the EU and Vietnam will enjoy not only tariff deductions but also plenty of non-tariff relief in trade. More importantly, this is a big step moving forward for the EU to assure and strengthen its partnership with Southeast Asia, as well as for Vietnam to speed up its long-term integration into the global economy.

In any case, Vietnam is set to be the top beneficiary of trade deals, especially through the EVFTA. However, these economic benefits should by no means be taken for granted. Vietnam has made various high-level commitments under the agreement, one of which is the challenging area of intellectual property rights (IPR).

European firms are concerned about IPR in Vietnam in many aspects, from registration to prevalent infringements and enforcement.

It is noted that trademark registration in Vietnam is a lengthy process and appeal procedures are quite slow in practice, whereas infringements of IPR are still common, especially in street markets and commercial areas, according to observations from European investors.

Although having been ­adequately designed at a reasonably good level, the enforcement system of Vietnam is still complex and not effective enough for IPR holders to have actions against infringements. Together with limited knowledge and experience of Vietnamese IP officials, this raises a concern in sanction measures under local regulations.

According to the EU, Vietnam agreed to make ­far-reaching changes to its domestic legal framework, strengthening the protection of IPR. Those commitments should be addressed carefully by Vietnam’s government to ensure the smooth implementation of the trade agreement.

Vietnam agreed to adopt the World Intellectual Property Organization’s internet treaties on protection of copyright on materials circulated over digital networks, possibly within three years of the agreement coming into force, by ­introducing and involving ­efficient protections against ­infringements of technological measures.

In addition, Vietnam committed to accede to the Hague Agreement regarding International Registration of Industrial Designs within two years of the agreement’s operation, and to extend the term of protection for designs to 15 years.

For patents, protection shall also be extended in case of delay in marketing approval. For instance, for pharmaceutical products where approval takes more than two years, patent protection could be extended for up to another two years as part of the compensation from the government.

Plant varieties rights, meanwhile, are to be protected in accordance with the International Convention for the Protection of New Varieties of Plants. Accordingly, Vietnam will protect innovative plant varieties that help better yields, which absolutely improves the benefits for both farmers and consumers.

As for geographical indicators (GIs), the EU provides a very high level of protection for GIs as well as support for this protection internationally. The bloc therefore requires Vietnam to adapt and comply with its standards. The country has committed to recognise and protect 169 GIs from the EU, mainly comprising of spirits and food products.

Actually enforcing obligations is the most important part of the IPR commitments of Vietnam. It is stressed that the country must maintain efficient enforcement in order to encourage investment in innovation and minimise economic harm of infringements.

Accordingly, the obligations and missions of ­Vietnamese authorities are well-defined under the agreement. Strong provisions of commitment are emphasised. One example is the obligation to recognise entities as entitled applicants to enforcement measures. A second is the ­obligation to provide provisional measures and injunctions against intermediaries as well as other measures, such as the possibility of recurring penalty payments or blocking bank accounts.

In addition, disclosing information shall not only be a right but also an obligation that is not only limited to the infringers but other entities.

One of the most remarkable points in enforcement is about the involvement of the customs authority. The EVFTA introduces an ability of customs officers to act as ex-officio, which means now the customs officers may have the right to intervene without having to wait for a complaint while imposing border enforcement measures over exports of infringing goods.

Overall, IPR is one of the various committed areas that Vietnam has made under the EVFTA, with quite a number of obligations and measures that are considered hard to achieve in the current situation and practice of the country.

Vietnam shall have to study potential solutions to make it happen in order to maintain the real benefits of the trade deal for businesses and consumers, and may seek support from relevant bodies of the EU or the wider ­European community in Vietnam.