Protection of Geographical Indications in Vietnam

6th October, 2022 - 11:28 am Categories: Intellectual Property 0 Comments

Introduction

First established in 1995 through the system of appellations of origin brought by the French, the Vietnamese legal framework for the protection of GIs provides for a State-driven, top-down management of GIs that is supported by strong public policies. Indeed, beyond the strict legal scope, GIs have recently attracted an increasingly growing interest within the country as a promising tool for ‘socio-economic development … to eliminate hunger and reduce poverty’ and for the preservation of the ‘cultural values and traditional knowledge of the nation’.

[Image source:Gettyimage]

First, the number of registered GIs is still very low compared to that of geographical names registered as trademarks (TMs). Second, the use of the registered GIs on products for sale in Vietnam is still very limited. it remains difficult to measure the extent to which the price premium that is commanded often by GI products is directly attributable to the legal protection granted to GIs only or whether other factors can also contribute to such premium, for example, the long-established reputation of certain products or the existence of subsidies and private investments in certain sectors of the economy. In addition, it seems that a combination of other enabling factors is required for a GI framework to positively impact socio-economic development.

The actual sui generis legal framework for protecting geographical names that designate the origin of products in Vietnam was created in 1995 with the introduction of the protection of ‘appellation of origin’ in the Civil Code of Vietnam,Footnote38 which contained all provisions regarding intellectual property, following a cooperation between France and Vietnam. In 2001, with technical assistance from France, Vietnam registered the first two appellations of origin for Phu Quoc fish sauce and Moc Chau Shan Tuyet tea following the definition in the Civil Code.

According to Article 786 of the Civil Code of Vietnam of 1995, an ‘appellation of origin is a geographical name of a country or locality that is used to indicate the origin of the goods as being in that country or locality, provided that the goods have characteristics or qualities that reflect the specific and advantageous geographical conditions of a natural or human character or the combination of thereof’. Interestingly, the Vietnamese definition does not seem to provide for the combination of ‘human and natural factors’ that could be said is included in the definition of ‘appellation of origin’ as provided by the 1958 Lisbon Agreement for the Protection of Appellation of Origin.

In January 2007, Vietnam joined the World Trade Organization (WTO) and, as part of the accession process, adopted a new Intellectual Property Law (IP Law) in 2005. In this new IP Law, Vietnam introduced the same definition of GIs as in Article 22 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement). This definition is partially less strict than the previous definition of appellation of origin under the Vietnam Civil Code of 1995. In particular, Article 79 of the IP Law provides that a GI product must originate from the area, locality, territory, or country corresponding to the related GI and must also have the reputation, quality, or characteristics essentially attributable to the geographical conditions of the area. According to Article 81 of the IP Law, this criterion of reputation is based on consumer trust in the product. However, in practice, the criterion of ‘reputation’, or reputation-based GIs, has not been used on its own so far in Vietnam. Instead, the registration of all forty-nine GIs that are currently registered in Vietnam was granted upon demonstration that the relevant geographical area conferred on the product specific quality and characteristics as defined by one or several qualitative, quantitative, or physical, chemical, microbiological perceptible norms.

Article 82 of the IP Law requires that the characteristics of the GI-denominated products that are derived from geographical conditions include both natural factors and human factors. This language directly suggests a mandatory combination of human and natural factors to justify GI registration in Vietnam, which is much stricter than the definition of GIs that is provided in TRIPS regarding the strength of the link between a product and its geographical origin. Ultimately, it can be said that GIs in Vietnam are still considered ‘appellations of origin’ under the original definition that is provided in the Vietnam Civil Code since the criterion of proving the link between the quality of products and their respective geographical environments must still be met.

Registration Process

The governance of GIs in Vietnam is characterized by the State’s top-down registration and management process. In particular, Vietnam’s GI system is characterized by the division of rights between

1. the right to own the GI;
2. the right to register the GI, which means the right to decide on the content of the code of practices, including the geographical area;
3. the right to manage the GI, which relates to managing the granting of the right of use and of control procedures; and
4. the right to use the GI.

In Vietnam, geographical indications are owned by the State. Therefore, this ownership cannot be transferred as GIs are considered a part of Vietnam’s national heritage. The State, as owner of GIs, has the right to register GIs. This right may be delegated to producers, organizations, and individuals; collective organizations representing individuals; or administrative authorities of the locality. In practice, GIs are always registered by local authorities, such as the provincial Departments of Science and Technology (DOST), or People Committees (PC) of provinces, districts, or cities. Even though they are legally permitted, no applications or registrations of GIs are made by producers or collective organizations representing individuals.

Conclusion

In conclusion, the concept of appellation of origin was certainly first introduced into the Civil Code of Vietnam as a result of the collaboration between Vietnam and the French government. Later, Vietnam introduced the concept of GIs as part of Vietnam’s obligations in order to join the WTO. Still, Vietnamese policy-makers at both national and regional levels have gone far beyond the mere enactment of a legal framework establishing the protections of GIs as an international obligation. In particular, Vietnam has actively promoted a series of public policies for increasing the number of GI registrations and educating GI producers and stakeholders to correctly manage GIs. This has led to a positive dynamic and an increase in GI protection of four to five GIs per year in Vietnam over the past several years.

Author: Tanya Saraswat, A Student of Narsee Monjee Institute of Management Studies (NMIMS),  in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.