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Protection of Plant Varieties in Vietnam
(Ngày đăng: 2020-06-14)

Protection of Plant Varieties in Vietnam

 

Email: vinh@bross.vn

 

Basic Features of Plant Varieties

 

(a) Definition: plant variety is a plant group within a single botanical taxon of the lowest known rank, which is morphologically uniform and suitable for being propagated unchanged, and can be defined by the expression of phenotypes resulting from a genotype or a combination of given genotypes, and distinguished from any other plant group by the expression of at least one inheritable phenotype.

 

(b) Conditions for protection: novelty, distinctness, uniformity, stability, proper names, and must be on the list of crops issued by the Ministry of Agriculture and Rural Development.

(i)        Novelty: A plant variety is considered to be new if its propagating material or harvested product has not been sold or distributed by the entitled person (who has the right to register) by Article 164 of this Law or his/her authorized person for the purpose of exploiting plant varieties in the territory of Vietnam within one year before the date of filing for registration or outside of Vietnam before the date of application within six years applicable for plant varieties belonging to species of woody plants and vines, or within four years for other plant varieties.

(ii)       Distinctness: a plant variety is considered to be distinctive if it is capable of clearly distinguishing it from other widely known plant varieties at the time of filing or of claiming the priority date (if any)

(iii)      Uniformity: a plant variety is deemed to be uniform if it has the same expression of the relevant traits (characteristic features), except for the variations within the permissible limits for certain specific traits during breeding process.

(iv)      Stability: a plant variety is considered to be stable if the relevant characteristics of that plant variety retain the same expression as originally described, unchanged after each propagation season or after every propagation cycle in the case of cyclic propagation.

(v)       Relevant name (denomination): the registrant must designate an appropriate name for the plant variety with the same name as the name registered in any country when applying for protection.

 

  1. Infringement of plant varieties[1]: exploitation and use of the exclusive rights of the holder of title of protection without his/her permission, namely production or propagation, processing for propagation purposes, offering for sale, selling or conducting other market access activities, export, import, and storage for carrying out acts mentioned above; infringement of the plant breeder’s rights, namely the right to attribution (acknowledgement as a credit to the plant varieties holder or author of the plant varieties), failure to pay remuneration[2].

 

Requirements

 

An application for registration of plant variety must be submitted to the New Plant Variety Protection Office under the Department of Crop Production, Ministry of Agriculture and Rural Development, including the following documents:

 

(a)        A request for registration using the prescribed form;

(b)       Photos, technical declaration form as prescribed;

(c)        Power of Attorney in favor of Bross & Partners;

(d)       Documents proving the entitlement to registration, if the registrant is the person assigned the right to register;

(e)        Documents proving the priority, if the application has a claim for priority;

(f)        Receipt of fees and charges in accordance with the Ministry of Finance's Circular 180/2011/TT-BTC dated December 14, 2011

 

Formality and Substantive Examination

 

The Plant Variety Protection Office under the Department of Crop Production shall receive and examine the application form within 15 days after receiving the applications. Where the application is deemed inappropriate, it will notify the applicant of the correction of deficiencies within 30 days.

 

Upon acceptance as to formality, the application shall be published on the Journal of Agriculture and Rural Development and examined as to substance by the Plant Variety Protection Office within 90 days counting the date of its receipt of technical test (the DUS test). The range of examination by the Plant Variety Protection Office comprises evaluation of novelty and appropriate names of plant varieties, and evaluation of technical test results of plant varieties.

 

The breeder or applicant submits the variety sample to the assaying agency and the testing agency shall conduct technical test in two crops of the same name (for short-term crops) or in 3-5 years (for long-term plants). After finishing the technical testing, within 30 days, the technical testing agency must send the test results report to the Plant Variety Protection Office.

 

After verification of technical test results, if the variety meets the protection conditions (novelty, distinctness, uniformity, stability, and proper name), the Plant Variety Protection Office shall submit the application for protection of plant variety to the Minister of Agriculture and Rural Development to issue a decision on grant of protection and shall publish it on the Agriculture and Rural Development magazine.

 

After the expiry of 30 days from the date of the decision of grant of protection is published on the magazine of agriculture and rural development, if no any opposition by third party is filed, a certificate of protection of plant variety is issued by Director of Department of Crop Production.

 

A sample of certificate of protection of plant variety as below

 

 

 

 

Annuities

 

A granted certificate of protection of plant variety is valid from the date of issuance till the expiry of twenty five years for woody plants and vines, or until the expiry of twenty years for other plant varieties. However, in order for this validity is not suspended, the registrant or owner of the certificate of variety protection must pay maintenance fees annually, ie. within 3 months after the date of grant of the protection certificate for the first year of validity, and every first month of each subsequent year of validity.

 

Bross & Partners is an accredited agent for registering plant variety before the Plant Variety Protection Office. Should you have specific needs, please contact: vinh@bross.vn; cellphone 84-903 287 057, 84-4-3555 3466; Wechat: wxid_56evtn82p2vf22; Skype: vinh.bross.

 

Bross & Partners, a renowned and qualified Patent, Design, Trademark, Copyright and Plant Varieties agent of Vietnam, constantly ranked and recommended by the Managing Intellectual Property (MIP), World Trademark Review (WTR), Legal 500 Asia Pacific, AsiaLaw Profiles, Asia IP and Asian Legal Business, is providing clients all over the world with the reliable, affordable contentious and non-contentious IP services including enforcement, anti-counterfeiting,  litigation regarding trademark, trade name, industrial design, patent, copyright and domain name.

 

 



[1] Where you want to know which type of infringement upon the plant breeders’ rights or owner of registered plant varieties can commence an action along with claim for damage before a court, see furtherWhich Disputes, Infringements of Intellectual Property Rights are Actionable at the Vietnamese Court System? at the link: http://bross.vn/newsletter/ip-news-update/Which-Disputes-Infringements-of-Intellectual-Property-Rights--are-Actionable-at-the-Vietnamese-Court-System

[2] To understand the legislation on the enforcement of intellectual property rights via administrative measure including the breeder’s rights or holder of title of protection of plant varieties, view our article titled “Enforcement of Intellectual Property Rights by Administrative Measures in Vietnam” at the link: http://bross.vn/newsletter/ip-news-update/Enforcement-of-Intellectual-Property-Rights-by-Administrative-Measures-in-Vietnam

 

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