HO CHI MINH CITY INTERNATIONAL CONFERENCE 2023

COMMITMENTS ON INDUSTRIAL PROPERTY RIGHTS IN CHAPTER

12 OF VIETNAM - EU FREE TRADE AGREEMENT (EVFTA) AND
RECOMMENDATIONS FOR VIETNAMESE COMPANIES
Assoc. Prof. Le Thi Thu Ha, Tran Thi Thu Ha
Foreign Trade University
I. Overview of Vietnam - EU Free Trade
Agreement
II. Commitments on Industrial Property
in Chapter 12 of Vietnam - EU Free
Trade Agreement
III. Recommendations for Vietnamese
Companies
 Timeline Key Events

October 2010 The Prime Minister of Vietnam and the President of the EU collectively
agreed to initiate negotiations on the EVFTA.

June 2012 The Minister of Industry and Trade of Vietnam and the EU Trade
Commissioner officially declared to initiate negotiations on the EVFTA.

November 2015 Concluded the negotiation and began the legal review to prepare for the
signing of the EVFTA.

June 2017 The legal review was completed on a technical level.

September 2017 The EU officially proposed to Vietnam to separate investment protection

and the mechanism for resolving disputes among the state and investors
(ISDS) from the EVFTA into a separate agreement due to new issues
arising regarding the competence to ratify free trade agreements of the EU
or each member state.
June 2018 Vietnam and the EU officially agreed to separate the EVFTA into two
agreements: the Vietnam-EU Free Trade Agreement (EVFTA) and the
Investment Protection Agreement (IPA), officially concluded the entire
legal review process of the EVFTA, and approved all contents of the IPA.
 Timeline Key Events

August 2018 The legal review of EVIPA was completed

17 October 2018 The European Committee officially approved the EVFTA and IPA.

25 June 2019 The European Council approved the signing of the agreement.

30 June 2019 Vietnam and the EU officially signed the EVFTA and IPA.

21 January 2020 The International Trade Committee of the European Union recommended
approving the EVFTA.

30 March 2020 The European Council approved EVFTA

08 June 2020 The National Assembly of Vietnam approved EVFTA.

01 August 2020 The EVFTA officially came into force

 2. Protection
standards for
1. General 3. IP Enforcement
specific subject
Principles Measures
matters of Industrial
Property Rights.
“ARTICLE 12.2
Nature and Scope of Obligations
1. The Parties affirm their rights and obligations under the
international treaties dealing with intellectual property to which
they are party, including the TRIPS Agreement. The Parties shall
ensure an adequate and effective implementation of those
treaties. This Chapter shall complement and further specify those
rights and obligations between the Parties with an aim at
ensuring adequate and effective implementation of those treaties,
as well as the balance between the rights of intellectual property
holders and the interest of the public.”
“ARTICLE 12.3
Most-Favoured-Nation Treatment (MFN)
With regard to the protection of intellectual property, any
advantage, favour, privilege or immunity granted by a Party to
the nationals of any third country shall be accorded
immediately and unconditionally to the nationals of the other
Party, subject to the exceptions provided for in Articles 4 and 5
of the TRIPS Agreement.”
“ARTICLE 12.4
Exhaustion
Each Party shall be free to establish its own regime for
the exhaustion of intellectual property rights subject to the
relevant provisions of the TRIPS Agreement.”
● Regarding trademark registration procedures: If the registration is refused, the
competent authority must notify in writing clearly stating the reasons for refusal;

● Regarding the trademark database system: Vietnam must build a public

electronic database system of published trademark applications and registered
trademarks

● Under Article 12.22 of the EVFTA, registered trademarks are at risk of

revocation if they meet any of the following conditions:
- If the owner fails to use the trademark genuinely within five years before the
revocation request.
- If the trademark becomes the common name for the registered product or
service in trade due to the owner's inaction or action after registration.
- If the use of the trademark misleads the public concerning the product or
service's nature, quality, or geographical origin
● Regarding the subject of protection, the commitments on geographical indications in
the EVFTA Agreement apply to four product groups: (i) Wine; (ii) Alcoholic
beverages; (iii) Agricultural products; (iv) Food;
● Regarding the protection mechanism, although not mentioned directly, the EVFTA
Agreement requires the protection of geographical indications under a separate
mechanism, independent of trademarks through a commitment to the process of
recognizing geographical indications;
● Regarding the relationship with trademarks, the EVFTA Agreement recognizes the
right to protection of trademarks that have names similar to geographical indications
but were legally registered and protected before the effective date of this
Agreement. or before the date the application for protection of that geographical
indication is submitted to the competent authority.
● The EU commits to protecting 39 geographical indications of Vietnam and vice
versa, Vietnam also protects 169 geographical indications of the EU.
● Regulations on protection of homonymous geographical indications.
1. Phu Quoc Fish Sauce 15. Dai Hoang Banana 28. Bac Kan tangerine
2. Moc Chau Tea 16. Van Yen cinnamon 29. Yen Chau mango
3. Buon Ma Thuot 17. Hau Loc Shrimp 30. Meo Vac
Coffee Bean Sauce peppermint honey
4. Doan Hung Pomelo 18. Bac Kan seedless 31. Binh Minh Pomelo
5. Binh Thuan Dragon persimmon 32. Ha Long grilled
Fruit 19. Phuc Trach Pomelo chopped cuttlefish
6. Lang Son Star Anise 20. Bay Nui Rice 33. Bac Lieu Salt
7. Thanh Ha lychee 21. Trung Khanh 34. Luan Van Pomelo
8. Phan Thiet Fish chestnut 35. Yen Tu Yellow
Sauce 22. Ba Den annona ochna flower
9. Hai Hau Rice 23. Nga Son sedge 36. Quang Ninh
10. Vinh Orange 24. Tra My Cinnamon corrugate lucine
11. Tan Cuong Tea 25. Ninh Thuan Grape 37. Dien Bien Rice
12. Hong Dan Rice 26. Tan Trieu Pomelo 38. Vinh Kim Milk Fruit
13. Luc Ngan Lychee 27. Bao Lam seedless 39. Cao Phong Orange
14. Hoa Loc Mango persimmon
● Vietnam must join and ensure the implementation of the provisions of the
Hague Agreement (The Hague) on the International Registration of Industrial
Designs;

● The object of industrial design protection includes not only the overall design of
the finished product but also the design of components and parts of the product
the product if it is a component, that part is visible during the normal use of the
product;

● An industrial design must be considered as an object that can be protected

under copyright;

● Do not protect natural/mandatory designs (required by functions or technical

requirements).
● The right to apply the DOHA Declaration to access pharmaceutical
inventions in the public interest (in particular, exceptions to the right to use
pharmaceutical inventions);

● The obligation to “compensate” for the duration of protection for cases

where the patent protection period for pharmaceutical products is
shortened due to a delay in the marketing authorization of the
pharmaceutical product.
● If a Party requires, as a condition for approving the marketing of pharmaceutical
or agrochemical products, the submission of undisclosed test or other data, the
origination of which involves a considerable effort, the Party shall protect such
data against unfair commercial use. In addition, each Party shall protect such
data against disclosure, except where necessary to protect the public.

● Each Party shall provide that for data referred to in paragraph 2 that is
submitted to the Party after the date of entry into force of this Agreement, no
other applicant for marketing approval may, without permission of the person
that submitted the data, rely on that data in support of an application for
marketing approval during a reasonable period, which shall normally mean not
less than five years from the date on which the Party granted approval to the
person that produced the data for approval to market its product.
Basically, EVFTA makes requirements on IP enforcement more
stringent, towards:

● Give greater powers to enforcement agencies (especially

customs and other border authorities) and rights holders.

● Increase the level of responsibility and sanctions for subjects

who violate intellectual property rights.
THANK YOU!
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