Protection of geographical indications (GIs) always plays an important role in commercial relations at national and international levels. Using misleading geographical indications will be contrary to honest practice in industry and commerce, confusing consumers to GI-protected products. Those using inappropriate GIs will obtain unfair advantages in comparison with their competitors. GIs are used for natural, agricultural, handicraft and industrial products such as: wood, sugar, fruits, wines,
coffee, tea, cigarettes, weave, wool…GIs can make great contributions to establish prestige and reputation of a product in consumer’s mind as well as in the importation and exportation of the product. Therefore, GIs are considered as valuable properties of the nation, protection of such assets by law will not only enhance commercial values of GI-protected products but also preserve cultural values and traditional knowledge of the nation crystallized in the products.
1. Definition of Geographical Indication
There is no common definition of GI due various mechanisms of protection of GI from country to country. Followings are some definitions of geographical indication:
“Indication of source” refers to indications of a product originating from a specific geographical area.
“Appellation of origin” refers to indications of a product originating from a specific geographical area that the quality of the product is attributed by environmental, natural and human factors of the geographical area.
“Geographical indication” associates to both two above-mentioned definitions.
2. Protection of Geographical Indications in Viet Nam
The protection of GIs under Vietnamese laws and regulations was divided into 2 stages:
– The 1st stage lasted from July 1st 1996 to July 1st 2006 under Civil Code 1995;
– The 2nd stage has been started since July 1st 2006 until now under the Intellectual Property Law 2005.
i The 1st stage
Appellation of origin and protection of appellation of origin was first regulated under Civil Code 1995 and detailed in guideline regulations.
Article 786 of Civil Code 1995 stimulated “The original name of goods is a country, or a locality’s geographical name that is used to indicate the origin of the goods from this country or locality provide that the goods have the characteristics or quality reflecting the specific geographical conditions of natural or human character or the combination of thereof”.
With such definition, the original name of goods is construed as a geographical name with the function of indicating the origin of products from a country or a geographical area, therefore, direct or indirect signs, symbols and images indicating the origin of products are excluded from this definition.
ii The 2nd stage
The second stage of the protection of GIs has been started since the IP Law 2005 came into effect (July 1st 2006). The regulations on GI protection guiding the implementation of IP Law 2005 include
o Decree No. 103/2006/ND-CP dated 22 September 2006 of the Government detailing and guiding the implementation of a number of Articles of the Law on Intellectual Property regarding industrial property (referred to as Decree No.103/2006/ND-CP);
o Decree 105/2006/ND-CP dated 22 September 2006 of the Government detailing and guiding the implementation of a number of Articles of the Law on Intellectual Property on protection of intellectual property rights and on State management of intellectual property (referred to as Decree No.105/2006/ND-CP);
o Decree 106/2006/ND-CP dated 22 September 2006 of the Government providing for sanctioning of administrative violations in the filed of industrial property (referred to as Decree No.106/2006/ND-CP);
o Circular No. 01/2007/TT-BKHCN of February 14, 2007 of Minister of Science and Technology guiding the implementation of the Government’s Decree No. 103/2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the law on Intellectual Property Regarding Industrial Property
According to Paragraph 22, Article 4 of the IP Law 2005, “A geographical indication means a sign which identifies a product as originating from a specific region, locality, territory or country”. Following the definition, geographical indication includes geographical name, signs, symbols and images.
3. Generalrequirements for GIs eligible for protection (Article 79, the IP Law 2005)
A geographical indication shall be protected when it satisfies the following conditions:
o The product bearing the geographical indication originates from the area, locality, territory or country corresponding to such geographical indication;
o The product bearing the geographical indication has a reputation, quality or characteristics mainly attributable to geographical conditions of the area, locality, territory or country corresponding to such geographical indication.
4. Subject matters not protected as geographical indications ( Article 80, the IP Law 2005):
The following subject matters shall not be protected as geographical indications:
o Names or indications which have become generic names of goods in Vietnam;
o Geographical indications of foreign countries where they are not or no longer protected or no longer used;
o Geographical indications identical with or similar to a protected mark, where the use of such geographical indications is likely to cause a confusion as to the origin of products;
o Geographical indications which mislead consumers as to the true geographical origin of products bearing such geographical indications.
5. Right to register geographical indications of Viet Nam belongs to the State (Article 88, the IP Law 2005)
The State allows organizations and individuals producing products bearing geographical indications, collective organizations representing such organizations or individuals or administrative management agencies of localities to which such geographical indications pertain to exercise the right to register such geographical indications. Persons who exercise the right to register geographical indications shall not become owners of such geographical indications.
People’s Committees of provinces and cities under central authority shall carry out registration procedures and organize management of geographical indications used for the localities’ specialties (Paragraph 4 Article 19 Decree No. 103/2006/ND-CP).
6. The owner of Vietnam’s geographical indications is the State (Paragraph 4, Article 121, the IP Law 2005) :
The State shall grant the right to use geographical indications to organizations or individuals that turn out products bearing such geographical indications in relevant localities and put such products on the market. The State shall directly exercise the right to manage geographical indications or grant that right to organizations representing the interests of all organizations or individuals granted with the right to use geographical indications.