Q 73: What are plant variety rights?
Plant variety right means rights of an organization or individual to new plant varieties which such organization or individual has selected and created, discovered and developed, or which they own.
Q 74: What legal documents govern plant variety rights in Vietnam?
Plant variety rights in Vietnam are mainly governed by the Law on Intellectual Property, which was first enacted in 2005 and subsequently amended in 2009, 2019 and 2022 (“The IP Law”).
In addition to the IP Law, there are also several subordinate legal documents governing plant variety rights in Vietnam, such as:
- Decree No. 88/2010/ND-CP dated August 16, 2010, detailing and guiding a number of articles of the IP Law regarding plant variety rights.
- Circular No. 16/2013/TT-BNNPTNT dated February 28, 2013, issued by the Minister of Agriculture and Rural Development on the protection of plant variety rights, amended by the Circular No. 03/2021/TT-BNNPTNT dated June 22, 2021.
Furthermore, Vietnam is also a member of the International Union for the Protection of New Varieties of Plants (UPOV), which sets international standards for the protection of plant variety rights.
Q75: Who can apply for plant variety rights in Vietnam?
Organizations and individuals entitled to register for protection of plant varieties include:
- a) Breeders who have personally selected and bred or discovered and developed the plant variety by their own efforts and at their own expense;
- b) Organizations and individuals who fund breeders to select and breed or discover and develop the plant variety by job assignment or hiring, unless otherwise agreed;
- c) Organizations and individuals to whom are transferred, or who inherit the right to register for protection of the plant variety.
Q 76: What are the characteristics of a plant variety that is eligible to protection in Vietnam?
A plant variety will be eligible for protection if that plant variety is selected and bred or discovered and developed and is new, distinct, uniform, stable and designated by proper denominations.
Novelty of a plant variety
A plant variety shall be deemed new if breeding materials and reproductive materials of such variety have not yet been sold or otherwise distributed for the purpose of exploitation in the territory of Vietnam by the registration right holder defined in article 164 of this Law or his or her licensee one (1) year before the filing date of the application for registration, or for exploitation outside the territory of Vietnam six (6) years before the filing date of the application for registration for timber trees or woody vine, or four (4) years for other plant varieties.
Distinctness of a plant variety (Article 160 – IP Law)
- A plant variety shall be deemed to be distinct if it is clearly distinguishable from any other plant variety whose existence is a matter of common knowledge at the time of filing the application or on the priority date, as the case may be.
- Plant varieties whose existence is a matter of common knowledge defined in clause 1 of this article are those falling into one of the following cases:
- Their breeding materials and reproductive materials have been widely used in the market of any country at the time of filing of the protection registration application;
- They have been protected or registered in the list of plant varieties in any country;
- They are the subject matter of protection registration application or application for registration in the list of plant varieties in any country, provided that such applications are not rejected;
Uniformity of a plant variety (Article 161 – IP Law)
A plant variety shall be deemed uniform if, subject to variation which may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.
Stability of a plant variety (Article 162 – IP Law)
A plant variety shall be deemed stable if its relevant originally described characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each cycle.
Denominations of plant varieties (Article 163 – IP Law)
- The registrant must designate a proper denomination for a plant variety which must be the same as the denomination registered in any member state of UPOV or any foreign country that has concluded an agreement on protection of plant varieties with the Socialist Republic of Vietnam.
- The denomination of a plant variety shall be deemed proper if it is distinguishable from those of other plant varieties of common knowledge within the same or similar species.
- Denominations of plant varieties shall be deemed improper in the following cases:
- They consist of numerals only, except where such numerals are relevant to characteristics or the breeding of such variety; or include the species name of such variety;
- They violate social ethics;
- They may easily mislead as to features or characteristics, value of such variety;
- They may easily mislead as to identification of the breeder;
- They are identical or confusingly similar to marks, trade names or geographical indications protected before the date of publication of the protection registration application of such plant variety;
- They affect the prior rights of other organizations or individuals.
- Organizations and individuals who offer for sale or bring onto the market reproductive materials of plant varieties must use the denominations of such plant varieties as stated in protection titles even after the expiration of the protection terms.
- When denominations of plant varieties are combined with trademarks, trade names or indications similar to denominations of plant varieties already registered for sale offer or brought onto the market, such denominations must still be distinguishable.
- In the denomination of the proposed plant variety does not satisfy the requirements as specified, the plant variety right authority shall reject it and request the applicant to propose another denomination within 30 days from the date to notice. The plant variety right authority shall record the official denomination of the plant variety from the issuance date of the plant variety protection certificate.
Q 77: What is term of protection for plant variety rights in Vietnam?
In Vietnam, plant variety rights last for a period of 25 years from the date of grant for timber trees and woody vines, and 20 years from the date of grant for other plants.
Q 78: What rights does the holder of plant variety protection have in Vietnam?
Plant variety protection holders in Vietnam have exclusive rights to exercise or authorize others to exercise the following rights to reproductive materials of a protected plant variety:
- To conduct production or propagation;
- To process them for the purpose of propagation
- To offer them for sale
- To sell them or conduct other marketing activities;
- To export them
- To import them
- To store them for conducting acts specified at Points a. b. c. d. e and f of this Clause.
The plant variety protection holder also has the right to prevent any other third party from using the plant variety.
Furthermore, the plant variety protection holder has the right to pass by inheritance or bequeath or assign the rights to the plant variety.
Q 79: Can plant variety rights be transferred or licensed to others in Vietnam?
Yes, plant variety rights can be transferred or licensed to others in Vietnam in accordance with Article 192 and Article 194 of the IP Law of Vietnam, the plant variety owner has the right to transfer his/her rights to another person or to license another person to use his/her protected plant variety rights.
The transfer or licensing of plant variety rights must be in writing agreement and the transfer agreement needs to be registered with the plant variety protection agency. The transfer or licensing agreement must specify the scope and duration of the rights being transferred or licensed and the conditions for the use of the protected plant variety.
The transfer of plant variety rights to another person can be partial or complete. In case of partial transfer, the plant variety owner may retain some of his/her rights and transfer the remaining rights to another person.
The plant variety owner can also grant a license to another person to use his/her protected plant variety for a specific purpose, scope and duration. The license agreement must also specify the amount of royalty or remuneration to be paid to the plant variety owner for the use of his/her protected plant variety.
In addition, a licensee may also have the right to sub-license the use of the protected plant variety to others, unless otherwise agreed by the plant variety owner. However, the sub-licensee is not entitled to any rights beyond those granted by the original licensee.
Q 80: What is the penalty for infringing on plant variety rights in Vietnam?
According to Article 211 of the IP Law, individuals or organizations that infringe on plant variety rights can face administrative sanctions.
The plant variety right holder owner may bring a civil lawsuit against the infringer and claim compensation for damages caused by the infringement. The compensation amount may include actual damages suffered by the plant variety right holder, as well as any profits that the infringer gained from the infringement.
There are no criminal penalties for infringement on plant variety rights.
Q 81: Are there any exemptions or limitations on plant variety rights in Vietnam?
Yes, there are certain exemptions and limitations on plant variety rights in Vietnam, such as, the following acts are not regarded as infringements of rights to protected plant varieties:
- Using plant varieties for personal and noncommercial purposes.
- Using plant varieties for testing purposes.
- Using plant varieties to create new plant varieties, except the case specified in Article 187 of this Law.
- Using harvested materials of protected plant varieties by individual production households for self-propagation and cultivation in the next season on their own land areas.
It is important to note that these exemptions and limitations are subject to certain conditions and limitations under the relevant Vietnamese laws and regulations.
Q 82: How does Vietnam’s plant variety rights regime compare to other countries?
Vietnam’s plant variety rights regime is generally in line with international standards and practices, as it is based on the UPOV Convention and the TRIPS Agreement. However, there are some differences and unique aspects to Vietnam’s system compared to other countries.
One of the unique features of Vietnam’s system is the requirement for local adaptation. In order to be eligible for plant variety protection, a variety must be tested and proven to be suitable for local conditions. This is intended to promote the development of new plant varieties that are well adapted to Vietnam’s climate and soil conditions.
Another notable aspect of Vietnam’s system is the availability of a compulsory licensing system. This allows the government to grant a license to a third party to produce and sell a protected variety if the original owner is not meeting certain conditions, such as reasonable pricing or sufficient supply. This is meant to ensure that protected plant varieties are available to the public at reasonable prices and in sufficient quantities.
Overall, while there are some unique aspects to Vietnam’s plant variety rights regime, it is largely consistent with international standards and practices.
Q 83: How can foreign companies protect their plant varieties in Vietnam?
Foreign companies can protect their plant varieties in Vietnam by filing an application for plant variety protection with the Plant Variety Protection Office of Vietnam. The application should include all the necessary information and documentation, such as the name and description of the variety, the breeding and selection process, and evidence of distinctness, uniformity, and stability.
It’s important for foreign companies to work with experienced attorneys or agents who are familiar with the local laws and regulations in Vietnam, as well as the procedures for obtaining plant variety protection. They can assist with the application process, communicate with the relevant authorities, and provide guidance on how to ensure that the application meets all the requirements.
Foreign companies can also consider licensing their plant varieties to local partners in Vietnam, who can then produce and sell the plants under a licensing agreement. This can help to mitigate the risks of infringement and provide a source of revenue from licensing fees. However, it’s important to have a well-drafted licensing agreement that clearly defines the rights and obligations of both parties and addresses issues such as royalties, quality control, and dispute resolution.
Q 84: What resources are available for companies looking to navigate Vietnam’s plant variety rights system?
There are several resources available for companies looking to navigate Vietnam’s plant variety rights system. One of the main resources is the Plant Variety Protection Office (PVPO) under the Ministry of Agriculture and Rural Development, which is responsible for granting and managing plant variety rights in Vietnam. The PVPO can provide guidance on the application process, legal requirements, and other related issues.
Additionally, there are several law firms and intellectual property consultants in Vietnam that specialize in plant variety rights and can help companies seeking to protect their plant varieties. These firms can assist with the application process, drafting licensing agreements, and enforcing plant variety rights.
There are also international organizations that provide information and support on plant variety rights, such as the International Union for the Protection of New Varieties of Plants (UPOV) and the World Intellectual Property Organization (WIPO). These organizations can provide guidance on international standards and best practices for plant variety protection.
Overall, companies seeking to navigate Vietnam’s plant variety rights system should seek the advice of legal and intellectual property experts and consult with relevant government agencies for guidance and assistance.
