PART SIX

INTELLECTUAL PROPERTY AND TECHNOLOGY TRANSFER

CHAPTER I

COPYRIGHT

Section 1

GENERAL PROVISIONS

ARTICLE 745. Author

1. An author is a person who personally creates all or part of a literary, artistic or scientific work.

2. The following persons shall also deem to be authors:

a) Persons, who translate work from one language into another;

b) Persons, who creates derivative works;

c) Persons, who transform a works from the original form into another form shall be the authors of the derivative works;

ARTICLE 746. Owners of works

1. Owners of works include:

a) The authors of works except for the cases when the authors create works while perform their duties;

b) Co-authors when they create works jointly under a contract except for the case when they create works in performance of their duties;

c) The organizations or state body that assigns other persons to perform work in accordance with the latter’s duties;

d) Organization or individual who contracts with other persons to create a work for the former.

2. An author, creates works according to his/her duty or contract as stipulates in point c and d of Paragraph 1 of this Article, has the rights as stipulated in Article 725 of this Code

ARTICLE 747. Works protected by the State

1. Literary, artistic, scientific works protected by the State include:

a) Written works;

b) Lectures and speeches;

c) Dramatic works and other works of stage art;

d) Motion pictures; video films;

e) Articles in periodicals and newspapers;

f) Musical works;

g) Architect works;

h) Sculptures and works of fine art and applied art;

i) Photographic works;

j) Scientific works and textbooks;

k) Geological maps, drawings, charts, and sketches relating to sites, architectural or scientific projects;

l) Translations, adaptations, compilation, transformations, commenting;

m) Computer software;

n) Other works law may provide.

2. Only original works shall be protected.

3. The State protects the works indicated in paragraph 1 of this article regardless the form in which they are expressed, their language and quality.

ARTICLE 748. Works protected by special provisions of law:

The following works, documents are protected by special provisions of law:

1. Folk arts and folk literature;

2. Acts issued by the state bodies and agencies, by political and mass organizations; by socio-professional and economic organization and the translations thereof;

3. Chronicle news.

ARTICLE 749. Works not protected by the State

1. The State shall not protect the works the contents of which is :

a) Against the State of Vietnam and damaging national solidarity;

b) Propaganda of violence and aggressive wars, provocation of hatred among nations and peoples; dissemination of reactionary ideology and culture, obscene lifestyles, crimes, social evils, superstitious beliefs that damage good social ethics and traditions;

c) Disclosure of the Party's and the State's secrets, secret of national security, economic and diplomatic secrets, confidential information concerning privacy of individuals and other secrets which law may provide;

d) Falsification of history, denial of revolutionary achievements, defamation of national heroes and great people, slanderous statements against the reputation of organization, dignity and honor of individuals.

2. Any transactions relating to publication, usage of and any benefit derived from the works indicated in paragraph I of this Article shall be voided. The violator shall be subject to legal liability depending on the severity of the violation.

Section 2

RIGHTS OF AUTHORS AND OWNERS

ARTICLE 750. Rights of an author

Rights of an author include property and personality rights on the works he created.

ARTICLE 751. Rights of an author who is simultaneously the owner

1. The personality rights of an author who is simultaneously the owner of his work include the following :

a) To give the name to his works;

b) To place is name or pseudonym on the work; to be entitled to have his name or pseudonym displayed when his works are published or used;

c) To publish of disseminate the work by himself; to authorize other persons to publish or to disseminate his works;

d) To authorize or not to authorize other persons to use his work;

e) To protect the integrity of his works from any alteration; to authorize or not to authorize other person to change his works.

2. An author who is simultaneously the owner of his works has the following property rights :

a) To receive royalty when his work is used by others;

b) To receive other allowances when his work is used;

c) To receive other material benefits from other persons when the latter use his work in the following forms:

+ Publication or republication, display at exhibitions, performance or broadcasting, making record or taking picture of the work;

+ Translation, adoption or transformation of the work into other type;

+ Subleasing the work.

d) TO receive awardd, accept the cases where the works is notprotected by State.

ARTICLE 752. Rights of an author who is not the owner of his work

1. An author who is not the author of his work has the following personality rights :

a) To give the name to his work;

b) To place his name or pseudonym on his work; to have his name or pseudonym presented when his work is published, used or disseminated;

c) To protect the integrity of his work, to authority or not to authorize other person to change the contents of his work.

2. An author who is not the author of his work has the following material rights :

a) To receive royalty if his works are used by other persons;

b) To receive other allowances when his work is used.

c) To receive award, ecept the case where the works is not protected by State.

ARTICLE 753. Right of an owner who is not the author of his work

1. An owner who is not the author of the work has the following personality rights :

a) To publish or to disseminate his works, to authorize other persons to publish or to disseminate it if the owner and the author have not agreed otherwise;

b) To authorize or not to authorize other persons to use the work if the author and the owner have not provided otherwise.

2. An owner who is not the author of the work is entitled to receive material benefiting from the usage of his work if it is used in the following forms :

a) Publication or republication, exhibition, performance, radio or television broadcasting, making recordings, taking pictures the work;

b) Translation, adaptation, transformation into other type;

c) Sub-leasing the work.

ARTICLE 754. Moment of commencement of copyright

Copyright of a work shall take effect when the work is created and expressed in definite form.

ARTICLE 755. Copyrights of co-authors

1. If several persons jointly create a work they shall deem to be the co-authors of this work. The co-authors who are the co-owners of their work shall have rights of an author provided in Article 751 of this Code; if the work is created by co-authors under the assigned duty or under the contract the co-authors shall have rights of an author provided in Article 752 of this Code.

2. If the work created by co-author consists of different parts and each part can be used separately then each co-author may use his/her part and enjoy the rights of an author in regard of his part the co-author have not provided otherwise.

ARTICLE 756. Copyright of the authors of the works created under the assigned duty

1. If a work is created by authors under the assigned duty or under the contract the authors shall have the rights of an author provided in Article 752 of this Code.

2. The organization who assigns duty to or contracts with the author shall have rights provided in Article 753 of this Code.

ARTICLE 757. Rights of the authors of translation, adaptation, transformation of a work

1. The authors of translation, adaptation, transformation of a work shall enjoy the rights of an author provided in Article 751 or Article 752 of his Code provided that they have permission of the author or owner of the work and have paid him/her a royalty; if they with to change the contents of the original work it is required to have the permission of the author and to have the author's name represented.

2. The autors of translation of a work shall enjoy the rights of an authors as provided in Article 751 or Article 752 of this Code, except the cases giving the name to his work.

ARTICLE 758. Rights of authors of cinematographic and vidio works, radio and television broadcasting programs, stage performances and work of other stage art

1. In regard of cinemartographic films, video works, radio and television broadcasting programs, stage performances the producers, cameramen, composers, painters, actors/actresses shall have rights provided in Article 752 of this Code.

2. Individuals and organizations producing cinematographic films, video works, radio and television broadcasting programs, stage performances shall enjoy the rights provided in Article 751 of this Code.

ARTICLE 759. Right on protection

The authors, owners of works whose rights are violated shall be entitled to demand the violators to cease or to request the competent authority to force the violators to cease their violations, and to publicly apologize and rectify, and to pay for the damages caused to them by the violators.

ARTICLE 760. Limitations of copyright

Individuals, organizations are entitled to use the works that were published or disseminated provided that copying and taking picture of these works are not banned, and provided further that the use of these works does not aim at making profit and does not affect the normal use of these works, and does not cause any damage to their authors and owners; in this case individuals, organizations are entitled to use the works without the permission of authors or owners, and are not bound to pay a royalty but must indicate the authors' name and the source of the works used.

ARTICLE 761. The cases where the users of works are not to ask for authors' permission and to pay a royalty

The use of works as it is provided in Article 760 of this Code shall cover the following :

a) Making copy of works only for personal use;

b) Quoting works without alteration of their contents for commenting or for illustrating in one's works;

c) Making quotations from a work without alteration of the authors intention in one's articles, in periodic journals; in radio and television broadcasting programs, in documentary films;

d) Using work without alteration of the contents of the work for teaching and testing in universities, schools and colleges;

e) Archive and librarian use;

f) Translating works from Vietnamese language into the languages of ethnic groups in Vietnam;

g) Performing stage pieces, songs, music in cultural gatherings or in promotional campaigns held in public;

h) Recording and reporting performances for the purpose of information and education;

l) Taking picture of or broadcasting sculptures, architect projects, photographs, objects of fine art for the purpose of introduction to the public;

j) To translate into braille.

2. The right to use works as it is provided in paragraph 1 of this Article is not applied in regard of the copying architect project, works of fine art, computer software.

ARTICLE 762. Registration and application for protection

1. Author or owner of works is entitled :

a) To register their works with the competent State authorities;

b) To apply to the competent State authority for the protection of their works from violations by other persons.

2. Authors, owners who have registered their works with the competent state authority are obliged to prove the authorship or ownership on the works in case of a dispute.

ARTICLE 763. Copyright transfer

1. The personal rights of an author cannot be transferred except for the personal rights provided in point c and point d of paragraph 1 of Article 751 of this Code for an author who is the owner of his work.

2. The authors, owners of a work are entitled to transfer all or part of his material rights provided in paragraph 2 of Article 751, and in paragraph 2 of Article 752 or paragraph 2 of Article 753 of this Code to other persons under a contract or by the provisions of inheritance law.

ARTICLE 764. Inheritance of copyright

1. If an author dies his/her heirs shall have the following rights :

a) The personal rights provided in point c and d of paragraph 1 of Article 751 of this Code except the case when the author is not the owner of his work;

b) The material rights of an author provided in paragraph 2 of Article 751 and paragraph 2 of Article 752 of this Code.

In case it the deceased author does not have any heir or in case the heirs of the deceased authors waive the inheritable estate or are disinherited the rights mentioned above shall belong to the State.

2. If the heir(s) of the deceased author die before the term of protection expires the heirs(s) of the former shall have rights provided in paragraph 1 of this Article until the tern of protection expires.

3. The heirs of an author having the material rights provided in paragraph 2 of Article 751 and in paragraph 2 of Article 752 of this Code shall be the owners of these inherited rights and therefore are entitled to transfer all or part of the rights to other persons.

ARTICLE 765. Inheritance of co-authors

If one of the co-authors of a work that is their joint ownership dies leaving without heir(s) or leaving heir(s) who refuse to accept the inheritable estate or have been disinherited the material rights of the deceased co-author shall go to the State.

ARTICLE 766. Term of protection of copyrights

Term of protection of copyrights is provided as follow :

1. An authors personal rights provided in point a and b of paragraph 1 of Article 751 as well as in point b and c of paragraph 1 of Article 752 of this Code shall be protected for ever;

2. An author’s personal rights provided in point c and d of paragraph 1 of Article 751, and an authors' material rights provided in paragraph 2 of Article 751 and in paragraph 2 of Article 752, paragraph 2 of Article 748 of this Code shall be protected during the life of the author and fifty years follow the year of his death;

3. In regard of the works of co-authors, the personal rights provided in point "c" and "d" of paragraph 1 of Article 751, and the material rights provided in paragraph 2 of Article 751, paragraph 2 of Article 752 of this Code shall be protected during the life of the author and for fifty years follow the last co-author's death;

4. In regard of cinematographic works, radio and television programs, video records, the works that are published after the author's death the personal rights provided in point "c" and "d" of paragraph 1 of Article 751, and the material rights provided in paragraph 2 of Article 751 and in paragraph 2 of Article 752 of this Code shall be protected for fifty years follow the day of the first publication of the works;

5. In regard of the works the authors of which are unknown or unclear the copyright for such works shall belong to the State; if the author is found or determined during the ten-year period beginning from the first publication of the works, the rights of such authors shall be protected according to points 1,2,3 and 4 of this article and the time of protection shall run from the moment when the authors have been found or determined.

Section 3

CONTRACT ON USING WORK

ARTICLE 767. A contract on use of work

1. A contract on use of work is an agreement between an author or an owner of work and other individual or organization by which the former transfers the work to latter (hereinafter referred to as the user) for using it.

2. A contract on use of a work must be in a written form if the parties or law do not provide otherwise.

ARTICLE 768. Contents of a contract on use of a work

Depending on the type of contracts on use of a work parties may agree on the following contents :

1. The form of use of a work;

2. Limits, duration of use of a work;

3. Royalty rate and the mode of its payment;

4. Liabilities of parties for breach of the concluded contract;

5. Other terms as they may be deemed necessary.

ARTICLE 769. Obligations of an author or owner of a work

Under a contract on use of a work, an author or owner has the following obligations :

1. To transfer the work to the user in the proper time, at the proper place as the parties have agreed upon; to pay for the damages caused to the user by the delay in transferring the work, or transferring it at improper place;

2. To restrain from transferring the work under the contract without the users consent to any other individual or organization during the term of contract; to terminate any violation causing damages to the user and to pay for the damages.

ARTICLE 770. Rights of an author and an owner

Under a contract on use of a work, an author or owner has the following rights :

1. To demand the user to display his/her name or pseudonym on the work while using it ;

2. To demand the user to pay royalty fully, timely and by the agreed mode of payment.

3. To transfer the work under the contract to other individuals for use of it if the parties do not provide otherwise.

ARTICLE 771. Obligations of a user

The user of a work has the following obligations :

1. To user the work in accordance with the form, limits and within the term as they are provided in the contract;

2. To restraint form transferring the work without the consent of the author or owner to other individuals or organizations;

3. To pay royalty fully, timely and by stipulated mode of payment;

4. To pay for the damages caused to the author or owner by breach of the obligations provided in paragraph 1, 2 and 3 of this Article;

ARTICLE 772. Rights of the user of a work

The user of a work has the following rights :

1. To publish and to disseminate the work within the stipulated time;

2. To user the work in accordance with the forms, limits and term as they are provided in the contract;

3. To terminate the contract and to demand the author or owner to pay for the damages if the latter did not transfer the work timely, at proper place as they are provided in the contract;

4. To suspend the performance of the contract and to demand the author or owner to pay for the damages if the latter breaches the obligations provided in paragraph 2 of Article 769 of this Code.

Section 4

RIGHTS OF PERFORMERS, PROCEDURES OF

AUDIO TAPE AND RECORDS, VIDEO TAPES AND DISKS,

RADIO AND TELEVISION BROADCASTING ORGANIZATIONS

ARTICLE 773. Performers

Performers shall include individual stage performer and assembles, producers of musical and radio and television broadcasting programs, directors, singers, stage actors and actresses, conductors of musical bands, and musicians.

ARTICLE 774. Obligations of performers

Performers have the following obligations :

1. To get permission of the authors or owners of unpublished works in order to perform them;

2. To pay the authors or owners royalty for the user of their works except for the cases provided in point g, paragraph 1 of Article 761 of this Code;

3. To pay the authors or the owners of the works for the damages caused to the latter by the breach of the obligations provided in paragraphs 1 and 2 of this Article.

ARTICLE 775. Rights of performers

Performers have the following rights :

1. To have their names presented when perform works;

2. To protect their performance symbol against any falsification;

3. To authorize or not to authorize other persons to broadcast or televise their performances except for the cases when the radio or television report are carried out for the purpose of information and education;

4. To authorize or not to authorize other persons to make records or take picture or to make copy of their performances for distribution;

5. To be entitled to receive the royalty when their performances are used in the manners provided in paragraph 3 and 4 of this Article and for a business purpose;

6. To demand organizations and individuals, who violate their rights to terminate the violations, to publicly apologize or to make correction, and to demand remedy of damage;

ARTICLE 776. Obligations of individuals, organizations producing sound records, visual tapes and disks

The individuals, organizations producing sound records, visual tapes and disks have the following obligations :

1. To contract with the authors or owners of the unpublished works in a written form in order to use their unpublished works to produce programs;

2. To present authors' names, performers' names when use their works or performances to produce programs; to guarantee the integrity of works, to pay authors royalty if use their published works to produce programs;

3. To contract with performers. and pay them royalty if use their performances to produce programs.

ARTICLE 777. Righs to of the organizations producing sound recordings visual taper and disks

1. Organizations producing sound records, visual tapes and disks have the following rights in regard of their products :

a) To authorize or not to authorize the reproduction and publication of their products;

b) To derive benefits when their products are used.

2. The rights of producers of sound recordings records, visual tapes and disks shall be protected for fifty-year period beginning from the moment of the first publication.

3. During the term of protection, the successor of the protected producers shall have the rights provided for producers until the expiration of the term of protection.

ARTICLE 778. Obligations of radio and television broadcasting organizations

Radio and television broadcasting organizations have the following obligations :

1. To get authors' or owners' permission and to pay them royalty for the use of the latters' unpublished works for producing radio or television programs;

2. To have authors' name, performers' names presented when use their published works for producing radio and television programs, to guarantee the integrity of the contents of the works to be used;

3. To pay royalty to the authors or owners of the derivative works, and to pay royalty to the authors or owners of the original works.

ARTICLE 779. Rights radio and television broadcasting organizations

1. Radio and televisions broadcasting organizations have the following rights in regard of their programs :

a) To authorize or not to authorize other persons to use their programs;

b) To authorize or not to authorize other persons to make copies for a business purposes.

2. Radio and television broadcasting organizations' rights shall be protected for twenty-year period beginning the first broadcast of the programs.

3. During the term of protection, the organization that has succeeded the rights of radio and television broadcasting organization shall be entitled to have the rights provided in paragraph 1 of this Article until the term of protection expires.

CHAPTER II

INDUSTRIAL PROPERTY

Section 1

GENERAL PROVISIONS

ARTICLE 780. Industrial property

Industrial property is the ownership of individuals, legal persons on invention, utility solutions, industrial designs, trade marks, and on the use of original names of goods and other objects which law may provide.

ARTICLE 781. Objects of industrial property protected by the State

The objects of industrial property protected by the State include : inventions, utility solutions, industrial designs, trade marks, original names of goods and other objects that law may provide except for those which are provided in Article 783 of this Code.

ARTICLE 782. Inventions

An invention is a technical solution that is distinguished with world-wide novelty in terms of the present technical development, creativeness, and is applicable to different social and economic fields.

ARTICLE 783. Utility solution

A utility solution is a technical solution that is new in terms of the present technical development in the world and is applicable in different economic and social fields.

The State is promoting all activities leading to technical improvements, rationalization of production.

ARTICLE 784. Industrial design

An industrial design is a product's shape that is formed by lines, three-dimensional form, and colors or the combination thereof, and that has world-wide novelty and is used as the pattern of industrial or handicraft products.

ARTICLE 785. Trade mark

A trade mark consists of the signs that are used to distinguish goods or services of the same kind from different producers. A trade mark can be expressed by words, pictures or combination thereof in one or different colors.

ARTICLE 786. Original name of goods

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.

ARTICLE 787. Objects of industrial property not protected by the State

The State shall not protect the objects of industrial property that are against the public interest or public order, and are contrary to the principles of social humanity as well as other objects that industrial property law does not provide protection for.

Section 2

FORMATION OF INDUSTRIAL OWNERSHIP

ARTICLE 788. Formulation of industrial property by patents

Ownership on inventions, utility solutions, industrial designs, trade marks, and the original names of goods are created on the basis of the patents issued by the competent State authority. Ownership on other objects of industrial property is created also pursuant to the provisions of law.

ARTICLE 789. Right to apply for patents

1. The following person are entitled to apply for patents in regard of inventions, utility solutions, and industrial designs :

a) The authors who create inventions, utility solutions, and industrial designs with their own efforts and expenses;

b) The employers in regard of the inventions, utility solutions and industrial designs created by their employees while they fulfil the assigned duties if there is no different agreement between the employers and employees;

c) Legal persons and individuals who hire the authors to carry out scientific research or project implementation;

d) Legal persons and individuals who receive inventions, utility solutions or industrial designs under the concluded contracts or pursuant to law.

2. Individuals and legal persons who legally conduct business are entitled to apply for patents to protect their trade marks.

3. Legal persons and individuals who trade specific goods coming from the locality that has the features provided in Article 782 of this Code are entitled to apply for patents to protect the original names of their goods.

ARTICLE 790. Priority right

1. The priority right in regard of application for patents of inventions, utility solutions, industrial designs, trade marks, the original names of goods and other objects that law may provide shall be determined on the basis of priority day;

2. Priority day shall be the day on which the application for patents are sent to the competent State authority, or shall be determined according to the conventions to which Vietnam has signed or joined to;

3. In order to have priority right determined by the conventions to which Vietnam has signed or joined to the applicant must indicate his/her intention in the application.

ARTICLE 791. Duration of protection

Ownership on the objects of industrial property shall be protected during the period of validity of patents and maybe extended pursuant to the provisions of law.

ARTICLE 792. Revocation of patents

1. Patents may be revoked in the following circumstances :

a) At the time of issuance of patents the objects of industrial property to be patented do not satisfy the requirement provided by law;

b) Patents have been issued to the persons who do not have right to apply for patents;

c) In other cases that law may provide.

2. When a patent is revoked the industrial property right under its protection deems to be not created.

ARTICLE 793. Suspension of patent's validity

1. The validity of patents shall be suspended in the following cases:

a) The owners of the objects of industrial property do not pay fee in time to maintain their patents;

b) The owner of trade marks, the original names of goods cease business activities;

c) The owner of trade marks do not use or do not transfer the rights to use patented trade marks to other persons during the period required by law since the moment the patents have taken effect;

d) In other cases that law may provide.

2. When patents' validity is suspended the industrial ownership protected under them shall be suspended from the moment of the validity of patents is terminated.

Section 3

OWNERS OF THE OBJECTS OF INDUSTRIAL

PROPERTY, AUTHORS OF INVENTIONS, UTILITY

SOLUTIONS, INDUSTRIAL DESIGNS

ARTICLE 794. Owners of industrial property

Legal persons and individuals to patents on inventions, utility solutions, industrial designs, trade marks and other objects are granted by the competent State authority or receive them by transfer agreement shall be the owners of the patented inventions, utility solutions, industrial designs, trade marks and other objects.

ARTICLE 795. Persons who have the legitimate rights to use the original names of goods

Legal persons and individuals to whom a patent on the original names of goods is granted by the competent State authority shall be legitimate users of the patented original names of goods.

ARTICLE 796. Rights of the owners of the objects of industrial property

1. The owners of inventions, utility solutions, industrial designs and trade marks have the following rights:

a) To have exclusive right to use the patented objects of industrial property;

b) To transfer the right to use the patented objects of industrial property to other persons;

c. To demand the competent State authority to force the persons who violate their ownership to terminate the violations and to pay for damages;

2. The ownership on inventions, utility solutions, industrial designs, trade marks can be inherited or transferred to other persons.

ARTICLE 797. Right of the users of the original names of goods

1. The users of the original names have the following rights:

a) To place the patented original names of goods on their products;

b) To demand the competent State authority to force the illegal users of the names of original goods to terminate the violations and to pay for damages.

2. Right of the users of the original names of goods can be transferred to other persons in any forms.

ARTICLE 798. Obligation of the owners of the patented inventions, utility solutions, and industrial designs

The owners of the patented inventions, utility solutions, industrial designs have the following obligations:

1. To pay royalty to the authors when the owners are not the author of the patented objects if between themselves there is no different agreement;

2. To pay fee to maintain the patents;

3. To use or to authorize other persons to use patented objects of industrial property pursuant to Article 789 of this Code.

ARTICLE 799. Authors of inventions, utility solutions, industrial designs

1. The authors of a invention, a utility solution, an industrial design is the person who creates that invention, utility solution, or industrial design.

2. The co-authors of a invention, a utility solution, an industrial design are the persons who jointly create invention, utility solution or industrial design.

ARTICLE 800. Rights of the authors of inventions, utility solution and industrial design

1. The authors of inventions, utility solutions, industrial designs have the following rights:

a) To have their names displayed in the patents of inventions, utility solutions, and industrial designs, and in other scientific materials;

b) To receive royalty from other persons who use the patented inventions and industrial designs provide that if the owners and authors do not agree otherwise;

c) To demand Courts, the competent State authority to intervene when their rights are violated;

d) The authors who are simultaneously the owners of the patented inventions, utility solutions and industrial designs have the rights provided in paragraph 1 of this Article.

2. The authors who are simultaneously the owners fo the patented inventions, utility solusions and industrial designs have the rights provided in paragraph 1 of this Article.

Section 4

RESTRICTED USE OF INDUSTRIAL PROPERTY

ARTICLE 801. Rights of the persons who use inventions, utility solutions and industrial designs before their patenting

The persons who have been using inventions, utility solutions and industrial designs before their owners apply for patents are entitled to continue using them provide that such persons shall not increase the quantity and scope of the use and shall not transfer the patented objects of industrial property to other individuals.

ARTICLE 802. Transfer of the right to use the patented inventions, utility solutions, industrial designs by the decision of the competent State authority

By the application of persons having the need in the patented inventions, utility solutions and industrial designs the competent State authority may order of the owners of these objects to transfer them to the former on the reimbursement basis in the following circumstances:

1. The owners, without reasonable motivation do not use, or use these objects not in accordance with the needs of economic, social development of the country;

2. The persons who have the needs in using the patented inventions, useful solutions, industrial designs have negotiated with the owners in different ways and have offered reasonable price but the latter still refuse to conclude a contract on transfer of the right to use these patented objects;

3. The use of the patented objects of industrial property is necessary for satisfying interest of national defense, national security, health, or other urgent need of the society.

ARTICLE 803. Using the patented inventions, utility solutions, industrial designs without royalty payment and application for permission

During the period of validity of the patented inventions, utility solutions and industrial designs any individual or legal person is entitled to use the patented objects without remedy to or application for permission from the owners if:

1. The use of these objects is not for business purposes;

2. Circulation and usage of the objects that the owners or the persons having right of use in advance, the transferees had traded in markets;

3. The usage of these objects by foreign transportation means that temporarily are or travel by transit through the territory of Vietnam provide that this usage is for maintaining the activities on such transportation means.

Section 5

PROTECTION OF INDUSTRIAL PROPERTY

ARTICLE 804. Protection of industrial property

1. Any person who uses the patented objects of industrial property of other person without the permission of their owner is deemed to violate industrial property except for the cases provided in Article 801 and Article 803 of this Code.

2. When an industrial property is violated the owner shall have the rights provided point c, pharagraph 1 of Article 796 of this Code.

ARTICLE 805. Violations of industrial property

1. Violations against the patented inventions, utility solutions pursuant to the provisions in paragraph 1 of Article 804 of this Code shall include:

a) Producing products by the inventions, utility solution patented in Vietnam;

b) Usage, importation, advertisement and circulation of products that are produced by the inventions, utility solutions patented in Vietnam;

c) The application of the solution that is patented in Vietnam as an invention or a utility solution.

2. Violations against the patented industrial designs pursuant to the provisions provided in paragraph 1 of Article 804 of this Code shall include:

a) Producing products by the industrial designs patented in Vietnam;

b) Importation, sale, advertisements or usage of the products produced by the industrial designs patented in Vietnam for business purposes.

3. Violations against the patented trade marks pursuant to the provisions provided in paragraph 1 of Article 804 of this Code shall include:

a) Placing other person’s trade marks patented in Vietnam or similar trade marks on one’s products or packages;

b) Importation, sale or offer of the products attached with the trade marks patented in Vietnam in Vietnamese markets.

CHAPTER III

TECHNOLOGY TRANSFER

Section 1

GENERAL PROVISIONS

ARTICLE 806. Objects of technology transfer

1. The objects of technology transfer include:

a) The objects of industrial property attached to or separated of the machines, equipment that law allows to transfer;

b) Know-hows, technology knowledge in forms of technology process, computer software, drawings, formulas, technical data attached to or separated from machines and equipment.

c) Technical services, training of technicians, information on the transferred technology;

d) The solution for the rationalization of production.

2. If the objects of technology transfer are protected as the object of industrial property then the passage of ownership on, or passage of the right to use of these objects must be carried out pursuant to law before technology is transferred.

ARTICLE 807. Right on technology transfer

1. The State shall guarantee the interests of individuals and legal persons in technology transfer;

2. Those legal persons, individuals who are the owners of the objects of industrial property, and those who are right to dispose of the objects of industrial property as well as those who are the owners of know-hows, technology knowledge have right to transfer the right to use these objects;

3. The authors who create know-hows, technology knowledge under the assigned duty or under the concluded contract on technical implementation may transfer these know-hows and technology knowledge by consents of the owners.

ARTICLE 808. The cases in which technology transfer is not allowed

Technology transfer cannot be carried out in the following cases:

1. Technology does not satisfy the provisions set forth by the competent State authority;

2. Other cases that law may provide.

Section 2

CONTRACT ON TECHNOLOGY TRANSFER

ARTICLE 809. Forms of technology transfer contract

1. A contract on technology transfer must be in a written form, and shall be registered with or permitted by the competent State authority if law so provides.

2. The technology transfers by the decision of the competent State authority also must be carried out through a written contract.

ARTICLE 810. The moment of validity of technology transfer contract

1. A technology transfer contract shall be valid for the period not beyond seven years from the moment when the contract takes effect. In extraordinary circumstances the competent State authority may extend the contract provide that in total the term of the contract shall not be beyond ten years.

2. The duration of technology transfer under the foreign investment projects shall be computed according to the duration of the investments.

ARTICLE 811. Moment when a technology transfer contract takes effect

The parties to a technology transfer contract may agree on the time when the contract shall take effect. If technology transfer is required to be registered with or to have permission from the competent State authority the contract shall take effect only form the moment of registration or issuance of permission.

ARTICLE 812. Contents of a technology transfer contract

In dependence of the objects of technology transfer contracts the parties to contracts may agree on the following essential terms:

1. Objects of a contract, the title and contents of objects, specific features and application results of the projects;

2. Quality of technology, contents and term of guarantees;

3. Place, time and schedule of technology transfer;

4. Scope and level of technology transfer;

5. Price of the transferred technology and the mode of payment;

6. Liability of parties in protection of technology;

7. Training obligations relating to technology transfer;

8. Obligations on mutual provision of information;

9. Conditions for altering or terminating a contract;

10. Liability for the breaches of the concluded contract and the mechanism of dispute resolution.

ARTICLE 813. Price of technology transfer

The price of technology transfer is determined by the parties. If there are provisions governing price setting frame for technology transfer the parties must observe these provisions.

ARTICLE 814. Quality of the transferred technology

The parties may agree on the quality of the transferred technology in consideration of the following factors:

1. The purpose of the use of technology;

2. The technical and economic indicators to be achieved according to the purpose of use of technology;

3. Quality indicators of the products that are to be made with the transferred technology;

4. The indicators of the products’ shape;

5. The indicators of environment protection.

ARTICLE 815. Guarantees and their duration

1. The transferor of technology is obliged to guarantee that the transferred technology satisfies with the stipulated quality pursuant to the provisions of Article 810 of this Code.

2. Guarantee period shall be determined by the parties or shall be governed by law.

3. Within the guarantee period if the transgressed technology is found not to satisfactory with the stipulated quality the transferor shall be obliged to repair the defects on his/her own expenses.

4. If the transferor have done all his/her bests the transferred technology remains unsatisfactory with stipulated quality the transferee the shall be entitled to terminate the contract and to demand remedy of damages.

Article 816. Rights of transferee of industrial property in the cases when the rights to use the transferred property is violated by third persons

1. The transferee of industrial property is entitled to request its owner, courts or the competent State authorities to force the persons violating his/her right to use the transferred property to terminate the violations.

2. If a person who has right to use the transferred industrial property brings a suit to a court then its owner must participate in the proceedings to protect the legitimate right and interest of such a person.

ARTICLE 817. Protection of the transferred technology against the limitations by third party

1. The parties agree on the territorial scope of the protection of the transferred technology against the limitation by third party; if the parties do not have any agreement on this issue the territorial scope of protection shall be the territory of Vietnam.

2. If the usage of the transferred technology within the territorial scope of protection provided in paragraph 1 of this Article is restricted by third party the transferee is entitled to demand the transferor to overcome the restrictions on his/her own expenses or to reduce the price. If the restriction cannot be overcome or can be overcome at very high expenses the parties have right to terminate the contract; the transferee are entitled to demand remedy of damages.

ARTICLE 818. Right to develop the transferred technology

1. The transferee of technology is entitled to develop the transferred technology without notifying the transferor if the parties do not agree otherwise.

2. If the transferor is interested in the results of the technology development the parties may agree of the transfer of the achieved results on the principles of mutual benefit.

ARTICLE 819. Sub-transfer of technology

1. The transferee of technology may sub-transfer the technology to other persons if the transferor gives his consents on that.

2. The transferor cannot deny the sub-transfer if it is carried out by the decisions of the competent State authority for the sake of the State’s interests, or public interests.

Article 820. Obligation to keep secret

1. The parties may agree on the limits and extent of secret of the transferred technology, if there is no agreement on this matter, the parties shall be deemed to have obligation to keep in secret all information that is the contents of or directly relating to the transferred technology during the term of the concluded contract in the same manner as they keep their own secret.

2. The transferee of technology must pay the transferor for the damages caused by breach of the obligations provided in paragraph 1 of this Articles.

Article 821. A contract on transfer of the exclusive right to use the patented inventions, utility solutions, industrial designs and trade marks.

1. If the parties agree on the transfer of the exclusive right to use the patented inventions, utility solutions, industrial designs and trade marks the transferee must not transfer the objects under the exclusive right to any third person.

2. If the transferor of the exclusive right breaches the obligations provided in paragraph 1 of this Article the transferee is entitled to demand the transferor to stop the violation and to pay for the damages, or to terminate the contract.

ARTICLE 822. A contract on transfer of right to use copy-righted trade marks

1. In a contract on transfer the right to use copyrighted trade marks, the parties may agree that the transferee is obliged to provide the products to be circulated under the transferred trade marks with the quality similar to that of the products of the transferor.

2. The transferor of the copyrighted trade marks has right to supervise the quality of the transferee’s goods that are produced and circulated under the transferred trade mark; to demand the transferee to take necessary measures to provide the good under the transferred trade marks with the stipulated quality; to terminate the contract and to demand remedy of damages if the transferee fails to take or not fully take the needed measures.

Article 823. A contract on transfer of the results of research and implementation of new technology

1. In a contract of transfer of the results of research and implementation of new technology, the parties may agree on the measures for protecting the copyright of the industrial property, the mode and rate of royalty payment to the authors of the results of research or of implementation of new technology if these results are used.

Article 824. A contract in supplementary services, technology consultation, training technical personnel, technology information supply

1. In a contract on supplementary services, technology consultation, training technical personnel, technology information supply, the parties must agree on the quality of services, the term and mode of rendering services, the qualification of the persons rendering services and the results to be achieved.

2. If in a contract the parties do not agree on the quality and the results to be achieved the party rendering service shall be deemed to fully perform his/her obligation if he/she renders the stipulated services with due care, with due qualification and within the stipulated time.

Article 825. Alteration and termination of a contract

1. The parties must inform each other about the scientific, technical knowledge that may affect the performance of the concluded contract, and in connection with that must consider the possibility of termination of the contract.

2. Article 809 of this Code that governs the forms of contracts shall be applied also to alteration and termination of contacts.

3. In case the concluded contract is altered or terminated due to the influence of new scientific and technical knowledge that the parties could not foresee at the moment of conclusion of the contract the transferor shall be liable for the expenses incurred as the consequences of the alteration or termination.