1. The Parties shall comply with the rights and obligations set out in the following international treaties:
(a) the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, as last revised at Paris on 24 July 1971 (hereinafter referred to as "the Berne Convention");
(b) the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, done at Rome on 26 October 1961; and
(c) the TRIPS Agreement.
2. The Parties shall accede to the following international treaties within three years from the date of entry into force of this Agreement:
(a) the WIPO Copyright Treaty, adopted in Geneva on 20 December 1996; and
(b) the WIPO Performances and Phonograms Treaty, adopted in Geneva on 20 December 1996.
Article 12.6. Authors
Each Party shall provide for authors to have the exclusive right to authorise or prohibit:
(a) direct or indirect reproduction by any means and in any form, in whole or in part, of their works;
(b) any form of distribution to the public, by sale or other transfer of ownership, of the original of their works or of copies thereof; and
(c) any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 12.7. Performers
Each Party shall provide for performers to have the exclusive right to authorise or prohibit:
(a) the fixation of their performances;
(b) direct or indirect reproduction by any means and in any form, in whole or in part, of fixations of their performances;
(c) distribution to the public, by sale or other transfer of ownership, of the fixations of their performances;
(d) the making available to the public, by wire or wireless means, of fixations of their performances in such a way that members of the public may access them from a place and at a time individually chosen by them; and
(e) the broadcasting by wireless means and the communication to the public of their unfixed performances, except where the performance is itself already a broadcast performance.
Article 12.8. Producers of Phonograms
Each Party shall provide for phonogram producers to have the exclusive right to authorise or prohibit:
(a) direct or indirect reproduction by any means and in any form, in whole or in part, of their phonograms;
(b) distribution to the public, by sale or other transfer of ownership, of their phonograms, including copies thereof; and
(c) the making available to the public, by wire or wireless means, of their phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 12.9. Broadcasting Organisations
Each Party shall provide broadcasting organisations with the exclusive right to authorise or prohibit:
(a) the fixation of their broadcasts;
(b) the reproduction of fixations of their broadcasts;
(c) the distribution to the public of fixations of their broadcasts; and
(d) the rebroadcasting of their broadcasts by wireless means.
Article 12.10. Broadcasting and Communication to the Public
Each Party shall provide to performers and producers of phonograms a right in order to ensure that a single equitable remuneration is paid by the user to them, if a phonogram published for commercial purposes or a reproduction of such phonogram is used for broadcasting by wireless means or for any communication to the public. Each Party shall ensure that this remuneration is shared between the relevant performers and phonogram producers. Each Party may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.
Article 12.11. Term of Protection
1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for not less than 50 years after his death, irrespective of the date when the work is lawfully made available to the public.
2. In the case of a work of joint authorship, the term referred to in paragraph 1 shall be calculated from the death of the last surviving author.
3. The rights of performers shall expire not less than 50 years after the date of the performance. If a fixation of the performance is lawfully published or lawfully communicated to the public within that period, those rights shall expire not less than 50 years from the date of the first lawful publication or the first lawful communication to the public, whichever is earlier.
4. The rights of producers of phonograms shall expire not less than 50 years after the fixation is made. If the phonogram has been lawfully published within this period, those rights shall expire not less than 50 years from the date of the first lawful publication. If no lawful publication has taken place within the period referred to in the first sentence, and if the phonogram has been lawfully communicated to the public within that period, those rights shall expire not less than 50 years from the date of the first lawful communication to the public.
5. The rights of broadcasting organisations shall expire not less than 50 years after the first transmission of a broadcast, whether that broadcast is transmitted by wire or over the air, including by cable or satellite.
6. The terms laid down in this Article shall be calculated from 1 January of the year following the event which gives rise to them.
Article 12.12. Protection of Technological Measures
1. Each Party shall provide adequate legal protection against the circumvention of any effective technological measures, which are used by the right holder of any copyright or related right which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
2. Each Party shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, offer to public for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services, which:
(a) are promoted, advertised or marketed for the purpose of circumvention of any effective technological measures;
(b) have only a limited commercially significant purpose or use other than to circumvent any effective technological measures; or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.
3. In providing adequate legal protection pursuant to paragraphs 1 and 2, a Party may adopt or maintain appropriate limitations or exceptions to measures implementing those paragraphs. The obligations under paragraphs 1 and 2 are without prejudice to the rights, limitations, exceptions, or defences to infringements of copyright or related rights under each Party's domestic law.
4. For the purposes of this Article, the term "technological measures" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject- matter, which are not authorised by the right holder of any copyright or related right as provided for by domestic legislation. Technological measures shall be deemed "effective" where the use of a protected work or other subject-matter is controlled by the right holders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the objective of protection.
Article 12.13. Protection of Rights Management Information
1. Each Party shall provide adequate legal protection against any person knowingly performing, without authority, any of the following acts:
(a) the removal or alteration of any electronic rights management information; or
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works, performances, phonograms or other subject-matter protected under this Sub-Section from which electronic rights management information has been removed or altered without authority,
if this person knows, or has reasonable grounds to know, that by so doing this person is inducing, enabling, facilitating or concealing an infringement of any copyright or any related right as provided for by domestic legislation.
2. For the purposes of this Article, the term "rights management information" means any information provided by right holders which identifies the work or other subject-matter referred to in this Sub-Section, the author or any other right holder, information about the terms and conditions of use of the work or other subject-matter, or any numbers or codes that represent such information.
3. Paragraph 2 applies when any of the items of information referred to in that paragraph is associated with a copy of, or appears in connection with the communication to the public of, a work or other subject-matter referred to in this Sub- Section.
Article 12.14. Exceptions and Limitations
1. Each Party may provide for exceptions and limitations to the rights set out in Articles 12.6 (Authors) to 12.10 (Broadcasting and Communication to the Public) only in certain special cases which do not conflict with a normal exploitation of the subject-matter and do not unreasonably prejudice the legitimate interests of the right holders in accordance with the international treaties to which they are party.
2. Each Party shall provide that acts of reproduction referred to in Articles 12.6 (Authors) to 12.10 (Broadcasting and Communication to the Public), which are transient or incidental, which are an integral and essential part of a technological process and the sole purpose of which is to enable:
(a) a transmission in a network between third parties by an intermediary; or
(b) a lawful use,
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Articles 12.6 (Authors) to 12.10 (Broadcasting and Communication to the Public).
Article 12.15. Artists' Resale Right In Works of Art
1. A Party may provide, for the benefit of the author of an original work of art, a resale right, to be defined as an inalienable right, to receive a royalty based on the sale price obtained for any resale of the work subsequent to the first transfer of the work by the author.
2. The right referred to in paragraph 1 applies to all acts of resale involving as sellers, buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in general, any professional dealers in works of art.
3. A Party may provide that the right referred to in paragraph 1 does not apply to acts of resale where the seller has acquired the work directly from the author less than three years before that resale and where the resale price does not exceed a certain minimum amount.
4. The right referred to in paragraph 1 may be claimed in a Party only if the domestic legislation of that Party to which the author belongs so permits, and to the extent permitted by the Party where this right is claimed. The procedure for collection and the amounts shall be determined in domestic legislation.
Article 12.16. Cooperation on Collective Management of Rights
The Parties shall endeavour to promote dialogue and cooperation between their respective collective management organisations for the purposes of promoting the availability of works and other protected subject-matter in the territories of the Parties and the transfer of royalties for the use of such works or other protected subject-matter.
Subsection 2. Trademarks
Article 12.17. International Treaties
1. The Parties affirm their rights and obligations under the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on 27 June 1989, as last amended on 12 November 2007.
2. Each Party shall use the classification provided for in the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, done at Nice on 15 June 1957, as amended on 28 September 1979 (hereinafter referred to as "Nice Classification") (54).
3. Each Party shall simplify and develop its trademark registration procedures using, inter alia, the Trademark Law Treaty, adopted at Geneva on 27 October 1994, and the Singapore Treaty on the Law of Trademarks, done at Singapore on 27 March 2006, as reference points.
Article 12.18. Rights Conferred by a Trademark
A registered trademark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade:
(a) any sign which is identical with the trademark in relation to goods or services which are identical with those for which the trademark is registered; (55) and
(b) any sign which is identical with or similar to the trademark in relation to goods or services which are identical with or similar to those for which the trademark is registered, where such use would result in a likelihood of confusion on the part of the public.
Article 12.19. Registration Procedure
1. Each Party shall provide for a system for the registration of trademarks in which each final refusal to register a trademark by the relevant trademark administration shall be communicated in writing and be duly reasoned.
2. Each Party shall provide for the possibility to oppose trademark applications and an opportunity for the trademark applicant to respond to such opposition.
3. Each Party shall provide a publicly available electronic database of published trademark applications and trademark registrations.
Article 12.20. Well-Known Trademarks
For the purposes of giving effect to protection of well-known trademarks, as referred to in Article 6bis of the Paris Convention and paragraphs 2 and 3 of Article 16 of the TRIPS Agreement, the Parties shall give consideration to the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks, adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the WIPO at the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO on 20 to 29 September 1999.
Article 12.21. Exceptions to the Rights Conferred by a Trademark
Each Party:
(a) shall provide for the fair use of descriptive terms (56) as a limited exception to the rights conferred by trademarks; and
(b) may provide for other limited exceptions,
provided that these exceptions take account of the legitimate interests of the owners of the trademarks and of third parties.
Article 12.22. Revocation of a Registered Trademark (57)
1. Each Party shall provide that a registered trademark shall be liable to revocation if, within a continuous period of five years prior to a request for revocation, it has not been put to genuine (58) use by its owner or the owner's licensee in the relevant territory in connection with the goods or services in respect of which it is registered, without justifiable reasons, except where the use is commenced or resumed at least three months before the request for revocation. A Party may provide that this exception be disregarded where preparations for the commencement or resumption occur only after the proprietor becomes aware that the request for revocation may be filed.
2. A Party may provide that a trademark can be liable to revocation if, after the date on which it was registered, it has become, as a result of acts or inactivity of the proprietor, the common name in the trade for a product or service in respect of which it is registered.
3. Any use of a registered trademark by the proprietor of the trademark or with his consent in respect of the goods or services for which it is registered that is liable to mislead the public, particularly as to the nature, quality or geographical origin of those goods or services shall make the trademark liable to revocation or, alternatively, be prohibited by relevant domestic law.
Subsection 3. Geographical Indications
Article 12.23. Scope of Application
1. This Sub-Section applies to the recognition and protection of geographical indications for wines, spirits, agricultural products and foodstuffs which are originating in the territories of the Parties.
2. Geographical indications of a Party, which are to be protected by the other Party, shall only be subject to this Sub-Section if they are protected as geographical indications in accordance with the system referred to in Article 12.24 (System of Registration and Protection of Geographical Indications) in the territory of the Party of origin.
Article 12.24. System of Registration and Protection of Geographical Indications
1. Each Party shall maintain a system for the registration and protection of geographical indications which shall contain at least the following elements:
(a) a register listing geographical indications protected in the territory of that Party;
(b) an administrative process verifying that geographical indications to be entered, or maintained, on the register referred to in subparagraph (a) identify a good as originating in a territory, region or locality of a Party, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;
(c) an opposition procedure that allows the legitimate interests of any natural or legal person to be taken into account; and
(d) procedures for rectification and removal or termination of the effects of the entries on the register referred to in subparagraph (a) that take into account the legitimate interests of third parties and the right holders of the registered geographical indications in question (59).
2. Each Party may provide in its domestic legislation more extensive protection than is required by this Sub-Section, provided that such protection does not contravene the protection provided under this Agreement.
Article 12.25. Established Geographical Indications
1. Having completed an opposition procedure and an examination of the geographical indications of the Union listed in Part A of Annex 12-A (List of Geographical Indications), Viet Nam recognises that those indications are geographical indications within the meaning of paragraph 1 of Article 22 of the TRIPS Agreement and that they have been registered by the Union in accordance with the system referred to in Article 12.24 (System of Registration and Protection of Geographical Indications). Viet Nam shall protect those geographical indications according to the level of protection provided for in this Agreement.
2. Having completed an opposition procedure and an examination of the geographical indications of Viet Nam listed in Part B of Annex 12-A (List of Geographical Indications), the Union recognises that those indications are geographical indications within the meaning of paragraph 1 of Article 22 of the TRIPS Agreement and that they have been registered by Viet Nam in accordance with the system referred to in Article 12.24 (System of Registration and Protection of Geographical Indications). The Union shall protect those geographical indications according to the level of protection provided for in this Agreement.
Article 12.26. Amendment of the List of Geographical Indications
1. The Parties may amend the list of geographical indications in Annex 12-A (List of Geographical Indications) in accordance with the procedure set out in subparagraph 3(a) of Article 12.63 (Working Group on Intellectual Property Rights, including Geographical Indications) and paragraph 1 of Article 17.5 (Amendments) by, inter alia:
(a) removing geographical indications which have ceased to be protected in the country of origin; or
(b) adding geographical indications, after having completed the opposition procedure and after having examined the geographical indications as referred to in Article 12.25 (Established Geographical Indications) to the satisfaction of both Parties.
2. A geographical indication for wines, spirits, agricultural products or foodstuffs shall not, in principle, be added to Annex 12-A (List of Geographical Indications), if it is a name that on the date of signing of this Agreement is listed in the relevant register of a Party with a status of "Registered".
Article 12.27. Protection of Geographical Indications
1. Each Party shall provide the legal means for interested parties to prevent:
a) the use of a geographical indication of the other Party listed in Annex 12-A (List of Geographical Indications) for an} geograp: y grap: y product that falls within the product class, as defined in Annex 12-B (Product Classes) and specified in Annex 12-A (List of Geographical Indications) for that geographical indication, and that either:
(i) does not originate in the country of origin specified in Annex 12-A (List of Geographical Indications) for that geographical indication; or
(ii) originates in the country of origin specified in Annex 12-A (List of Geographical Indications) for that geographical indication but was not produced or manufactured in accordance with the laws and regulations of the other Party that would apply if the product was for consumption in the other Party;
(b) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin or nature of the good; and
(c) any other use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention.
2. The protection referred to in subparagraph 1(a) shall be provided even where the true origin of the product is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like.
3. Without prejudice to Article 23 of the TRIPS Agreement, the Parties shall mutually decide the practical conditions of use under which homonymous geographical indications will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled. A homonymous name which misleads consumers into believing that a product comes from another territory shall not be registered even if the name is accurate as far as the actual territory, region or place of origin of the product in question is concerned.
4. When a Party, in the context of negotiations with a third country, proposes to protect a geographical indication of the third country which is homonymous with a geographical indication of the other Party protected under this Sub- Section, it shall inform the other Party thereof and give it an opportunity to comment before the third country's geographical indication becomes protected.
5. Nothing in this Sub-Section shall oblige a Party to protect a geographical indication of the other Party which is not, or ceases to be, protected in its country of origin. Each Party shall notify the other Party if a geographical indication ceases to be protected in the country of origin. Such notification shall take place in accordance with paragraph 3 of Article 12.63 (Working Group on Intellectual Property Rights, including Geographical Indications).
6. A Party shall not be required to protect as a geographical indication a name that conflicts with the name of a plant variety or an animal breed and as a result is likely to mislead the consumer as to the true origin of the product.
Article 12.28. Exceptions
1. Notwithstanding Article 12.27 (Protection of Geographical Indications), the protection of the geographical indications "Asiago", "Fontina" and "Gorgonzola" listed in Part A of Annex 12-A (List of Geographical Indications) shall not prevent the use of any of these indications in the territory of Viet Nam by any persons, including their successors, who made actual commercial use in good faith of those indications with regard to products in the class of "cheeses" prior to 1 January 2017.
2. Notwithstanding Article 12.27 (Protection of Geographical Indications), the protection of the geographical indication "Feta" listed in Part A of Annex 12-A (List of Geographical Indications) shall not prevent the use of this indication in the territory of Viet Nam by any persons, including their successors, who made actual commercial use in good faith of this indication with regard to products in the class of "cheeses" made from sheep's milk or made from sheep and goat's milk, prior to 1 January 2017.
3. Notwithstanding Article 12.27 (Protection of Geographical Indications), during a transitional period of 10 years from the date of entry into force of this Agreement the protection of the geographical indication "Champagne", listed in Part A of Annex 12-A (List of Geographical Indications), shall not prevent the use of this indication, or its translation, transliteration or transcription in the territory of Viet Nam by any persons including their successors, who made actual commercial use in good faith of this indication with regard to products in the class of "wines".
4. A Party may provide that any request made under this Sub-Section in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Party or after the date of registration of the trademark in that Party, provided that the trademark has been published by that date, if such date is earlier than the date on which the adverse use became generally known in that Party, provided that the geographical indication is not used or registered in bad faith.
5. This Sub-Section shall not prejudice the right of any person to use, in the course of trade, that personâs name or the name of that personâs predecessor in business, except where such name is used in such a manner as to mislead the public.
Article 12.29. Right of Use of Geographical Indications
Once a geographical indication is protected under this Agreement, the legitimate use of such geographical indication shall not be subject to any registration of users, or further charges.
Article 12.30. Relationship to Trademarks
1. When a trademark has been applied for or registered in good faith, or when rights to a trademark have been acquired through use in good faith, in a Party before the applicable date set out in paragraph 2, measures adopted to implement this Sub-Section in that Party shall not prejudice eligibility for or the validity of the trademark, or the right to use the trademark, on the basis that the trademark is identical with, or similar to, a geographical indication.
2. For the purposes of paragraph 1, the applicable date is:
(a) the date of entry into force of this Agreement with regard to the geographical indications referred to in Article 12.25 (Established Geographical Indications); or
(b) the date on which the competent authority of a Party receives from the other Party a request with a complete application for the protection of an additional geographical indication as referred to in Article 12.26 (Amendment of the List of Geographical Indications).
3. A trademark as referred to in paragraph 1 may continue to be protected, used and renewed notwithstanding the protection of the geographical indication, provided that no grounds for the trademark's invalidity or revocation exist in the domestic legislation on trademarks of the Party concerned.
Article 12.31. Enforcement of Protection
1. Each Party shall provide for enforcement of protection of geographical indications by appropriate administrative action, to the extent provided for by its domestic law, to prohibit a person from manufacturing, preparing, packaging, labelling, selling, importing or advertising a food commodity in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its origin.
2. Each Party shall at least enforce the protection provided for in Articles 12.27 (Protection of Geographical Indications) and 12.30 (Relationship to Trademarks) at the request of an interested party.
Article 12.32. General Rules
1. Products bearing protected geographical indications shall comply with the product specifications, including any amendments thereto, approved by the authorities of the Party in the territory of which the product originates.
2. Any matter arising from product specifications of registered products shall be dealt with in the Working Group on Intellectual Property Rights, including Geographical Indications, referred to in Article 12.63 (Working Group on Intellectual Property Rights, including Geographical Indications).
Article 12.33. Cooperation and Transparency
1. The Parties shall, either directly or through the Working Group on Intellectual Property Rights, including Geographical Indications, referred to in Article 12.63 (Working Group on Intellectual Property Rights, including Geographical Indications), maintain contact on all matters relating to the implementation and functioning of this Sub- Section. In particular, a Party may request from the other Party information relating to product specifications, including any amendments thereto, and relevant contact points for control or management of geographical indications.