Date: 23 November 2021
Writer: Tuyen Pham
To create new plant varieties, individuals/ organizations must spend a lot of expenses, time and human resources. The creation of new plant varieties not only brings economic benefits but also develops the agricultural-forestry industry for our country. Therefore, the protection of intellectual property for plant varieties is a necessary and worthy issue.
Through this article, BLawyers Vietnam would like to introduce to you 04 notes on intellectual property right (“IPR”) for plant varieties in Vietnam.
I. Conditions for protection of IPR for plant varieties
a. For domestic individuals/ organizations
Individuals/ organizations shall be protected with IPR for the new plant varieties which being selected or discovered and developed plant varieties or invested in the selection of plant varieties by them, or are transferred IPR to plant varieties.
In addition, to be protected, a plant variety shall be novelty, distinct, uniform, stable and designated by proper denominations. In which:
- Novelty means reproductive materials or harvested 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 01 year before the filing date of the application for registration, or for exploitation outside the territory of Vietnam 04–06 years before the filing date of the application for registration depending on the cultivar.
- Distinctiveness means being clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing the application or on the priority date.
- Uniformity means having the same expression of its relevant characteristics.
- Stability means that 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.
- 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.
b. For foreign individuals/organizations
Foreign individuals/organizations can only have this right protected in Vietnam if:
- They belong to a country that has concluded with Vietnam agreements on the protection of plant varieties;
- Having its permanent offices or residences in Vietnam or has establishments producing or trading in plant varieties in Vietnam; or
- Having a permanent offices or residences or establishments producing or trading in plant varieties in countries which have concluded with Vietnam agreements on the protection of plant varieties.
II. Establishment of IPR for plant varieties
To have the protected IPR with plant varieties, individuals/organizations must submit a protection registration application to the competent authorities.
At the same time, organizations/individuals need to pay attention to the first-to-file principle for plant varieties and the priority principle to protection registration applications.
III. Contents and limitations of IPR for plant varieties
Vietnamese law regulates that the protection certificate holders shall have the right to exercise or authorize others to exercise the related rights to reproductive materials of a protected plant variety including:
- Conducting production or propagation;
- Processing the reproductive materials for the purpose of propagation;
- Offering the reproductive materials for sale;
- Selling the reproductive materials or to conduct other marketing activities;
- Exporting the reproductive materials;
- Importing the reproductive materials;
- Stocking reproductive materials.
In addition, the protection certificate holder cannot do with IPR for plant varieties in some cases such as: other individuals/ organizations use plant varieties to serve personal and non-commercial needs; individuals/ organizations using plant varieties for experimental purposes; etc.
IV. Transfer/ Assignment of IPR to plant varieties
The protection certificate holder can transfer and assign the IPR to the plant variety based on their will.
Transfer of the use rights to plant varieties means permission from the protection certificate holder to another person to conduct one or more acts within the holder’s right to use the plant variety.
Assignment of IPR to a plant variety means the transfer by the plant variety protection certificate holder to the assignee of all rights for such plant variety.
However, individuals/ organizations should note that in some cases, the right to use a plant variety must be transferred to another organization/individual under a decision of a competent State authority without the consent from the protection certificate holder consent or the person who was transferred the exclusive by the protection certificate holder.
In summary, the establishment and exercise of IPR over plant varieties is a complex issue. Therefore, individuals/organizations should pay attention to the prescribed conditions when carrying out procedures related to this issue.
Should you have any questions about the above contents, please revert to BLawyers Vietnam at email@example.com. We are more than happy to hear from you!
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