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Cablegate: Vietnam: Intellectual Property Rights On the Agenda

This record is a partial extract of the original cable. The full text of the original cable is not available.

130516Z Jun 02

2002HANOI01523 - UNCLASSIFIED

UNCLASSIFIED PTQ6986

PAGE 01 HANOI 01523 01 OF 03 130517Z
ACTION EB-00

INFO LOG-00 AGRE-00 AID-00 AMAD-00 CEA-01 CIAE-00 CTME-00
DINT-00 DODE-00 ITCE-00 DOTE-00 SRPP-00 EAP-00 EXME-00
OIGO-00 E-00 FAAE-00 UTED-00 VC-00 FRB-00 H-01
TEDE-00 INR-00 ITC-01 LAB-01 LOC-01 L-00 VCE-00
AC-01 NSAE-00 NSCE-00 OES-01 OMB-01 OPIC-01 PA-00
PRS-00 ACE-00 SP-00 SSO-00 SS-00 STR-00 TEST-00
TRSE-00 USIE-00 EPAE-00 DRL-02 G-00 NFAT-00 SAS-00
/011W
------------------BC54B5 130518Z /38
FM AMEMBASSY HANOI
TO SECSTATE WASHDC PRIORITY 6752
INFO AMCONSUL HO CHI MINH CITY
USDOC WASHDC
USDA WASHDC

UNCLAS SECTION 01 OF 03 HANOI 001523

SIPDIS

STATE FOR EB/IPC:DRBEAN, EAP/BCLTV AND EB/ODC
STATE ALSO PASS USTR BURCKY/ALVAREZ AND BRYAN
STATE ALSO PASS USPTO FOR URBAN
STATE ALSO PASS LIBRARY OF CONGRESS FOR TEPP
USDA FOR FAS/FAA/AO HUETE
USDOC FOR LASHLEY AND 4431/MAC/AP/OKSA/HPPHO
USDOC ALSO FOR ITA/TD/OTEA/JJANICKE AND ITA/TD/SIF/CMUIR

E.O. 12958: N/A
UNCLASSIFIED

PAGE 02 HANOI 01523 01 OF 03 130517Z
TAGS: KIPR ETRD ECON VN IPROP
SUBJECT: VIETNAM: INTELLECTUAL PROPERTY RIGHTS ON THE AGENDA
FOR PRIVATE SECTOR AND GOVERNMENT AGENCIES


1. SUMMARY: INTELLECTUAL PROPERTY RIGHTS CONTINUES A FRONT-
BURNER ISSUE AMONG THE PRIVATE SECTOR AND SOME GOVERNMENT
AGENCIES IN VIETNAM. THIS CABLE SUMMARIZES TWO RECENT IPR
SEMINARS IN HANOI SPONSORED BY FRANCE AND SWITZERLAND AND
WHICH INCLUDED PARTICIPATION BY THE EMBASSY ECONOMIC
SECTION, THE USAID-FUNDED STAR PROJECT, AND A NUMBER OF U.S.
FIRMS. IT WAS CLEAR FROM BOTH SEMINARS THAT THERE IS A GREAT
DEAL OF INTEREST FROM BOTH FOREIGN AND DOMESTIC FIRMS IN
VIETNAM ON WHO THE ENFORCEMENT PLAYERS ARE AND HOW THE
PROCESS SHOULD WORK. IT WAS ALSO CLEAR THAT, SPURRED BY
THEIR OBLIGATIONS UNDER THE U.S.-VIETNAM BILATERAL TRADE
AGREEMENT, VIETNAMESE AGENCIES INVOLVED IN IPR ENFORCEMENT
ARE BEGINNING TO EXAMINE THEIR ROLES AND IDENTIFY AREAS
WHERE THEY LACK CAPACITY AND TRAINING. WHILE THE LARGER
LEGAL CONTEXT FOR IPR PROTECTION APPEARS TO BE ON TRACK,
THERE REMAINS A GENERAL LACK OF UNDERSTANDING OF IPR
PROTECTION AMONG AUTHORITIES, FIRMS AND THE PUBLIC AND A
LACK OF CLEAR OPERATING GUIDELINES FOR AGENCIES CHARGED WITH
IPR ENFORCEMENT IN THE FIELD. END SUMMARY.

FRANCE AND THE EU FOCUS ON ASIA

2. IN MAY, THE FRENCH NATIONAL INSTITUTE OF INDUSTRIAL
PROPERTY, IN CONJUNCTION WITH THE EUROPEAN COMMISSION, THE
VIETNAMESE, THAI AND MALAYSIAN GOVERNMENTS AND A NUMBER OF
PRIVATE SECTOR FIRMS (INCLUDING MICROSOFT AT OUR
SUGGESTION), SPONSORED A REGIONAL CONFERENCE IN HANOI ON THE
UNCLASSIFIED

PAGE 03 HANOI 01523 01 OF 03 130517Z
FUTURE FOR INTELLECTUAL PROPERTY IN ASIA. WHILE THE
CONFERENCE WAS NOT VIETNAM SPECIFIC, THE EMBASSY WAS INVITED
TO BRIEF THE CONFERENCE PARTICIPANTS ON THE IPR PROVISIONS
IN THE U.S. VIETNAM BILATERAL TRADE AGREEMENT (BTA) AND ON
OUR WORK WITH VIETNAM ON ITS IMPLEMENTATION. SINCE THE
CONFERENCE TOOK PLACE SHORTLY AFTER THE ANNOUNCEMENT OF
USTR'S SPECIAL 301 REPORT, OUR TALK INCLUDED A SHORT
REFERENCE TO THOSE CONCLUSIONS. WE STRESSED THAT THE U.S.
APPROACH WAS TO ADDRESS IPR ISSUES FIRST IN THE MULTILATERAL
CONTEXT, THEN REGIONAL OR BILATERAL, AND ONLY WHEN THOSE
APPROACHES WERE NOT SUFFICIENTLY EFFECTIVE, DID WE USE ALL
OTHER TOOLS AVAILABLE TO ENSURE ADEQUATE PROTECTION OF IPR.
MANY OF THE EUROPEAN PARTICIPANTS (AND SOME OF THE REGIONAL)
PROFESSED A PREFERENCE FOR "VOLUNTARY" MEASURES TO INCREASE
IPR PROTECTION IN ASIA, BUT IT WAS CLEAR THAT THE U.S. WAS
THE ONLY COUNTRY ABLE TO SHOW SPECIFIC PROGRESS WITH VIETNAM
ON IPR ISSUES, THANKS TO THE BTA. IN ADDITION TO OUR
EMBASSY SPEAKER, THE USAID-FUNDED STAR PROJECT ALSO
PARTICIPATED IN THE SEMINAR'S WORKSHOP ON DEVELOPMENT OF
TECHNICAL COOPERATION.

SWITZERLAND FOCUSES ON IPR ENFORCMENT

3. ALSO IN MAY, THE SWISS PUT ON ONE OF THE MOST USEFUL IPR
SEMINARS TO DATE IN HANOI, ENTITLED "SEMINAR ON INDUSTRIAL
PROPERTY AND THE INTEGRATION OF VIETNAM INTO THE
MULTILATERAL TRADE SYSTEM - ENFORCEMENT" AND ORGANIZED BY
THE "SPECIAL PROGRAMME OF COOPERATION BETWEEN VIETNAM AND
SWITZERLAND IN THE FIELD OF INTELLECTUAL PROPERTY. SPEAKERS
INCLUDED SOME OF THE VIETNAMESE GOVERNMENT OFFICIALS IN
CHARGE OF IPR PROTECTION AND ENFORCEMENT EFFORTS. SOME
UNCLASSIFIED

PAGE 04 HANOI 01523 01 OF 03 130517Z
HIGHLIGHTS OF THE CONFERENCE FOLLOW BELOW.

WTO - TRIPS AND DOHA

4. THE VIETNAMESE FIRMS AND GOVERNMENT OFFICIALS PRESENT
WERE PARTICULARLY INTERESTED IN THE SESSION ON "THE WTO
AFTER THE DOHA MINISTERIAL CONFERENCE - IP: PATENT,
GEOGRAPHICAL INDICATIONS AND TRADITIONAL KNOWLEDGE",
PRESENTED BY DR. FELIX ADDOR, CHIEF LEGAL OFFICER AND DEPUTY
DIRECTOR GENERAL, SWISS FEDERAL INSTITUTE OF IP. MUCH OF THE
Q&A SESSION WAS RELATED TO TRADITIONAL MEDICINES. OTHER
SESSIONS INCLUDED TRIPS OBLIGATIONS AND ENFORCEMENT ISSUES,
INCLUDING DISPUTE SETTLEMENT.

5. DR. PHAM DINH CHUONG, DIRECTOR, NATIONAL OFFICE OF
INDUSTRIAL PROPERTY RIGHTS, ADDRESSED THE SESSION ON
"ACCESSION NEGOTIATIONS OF VIETNAM TO THE WTO: STATE OF PLAY
IN THE FIELD OF IP." HE REVIEWED THE LATEST DEVELOPMENTS IN
THE NEGOTIATIONS WITHIN THE WTO WORKING GROUP ON IP. HE
TOLD THE AUDIENCE THAT VIETNAM HAD BUILT AN AMBITIOUS ACTION
PLAN ON IPR, NAMELY TRIPS. VIETNAM HAD EXPECTED TO BE FULLY
IN COMPLIANCE WITH TRIPS ON JANUARY 01, 2002. UP TO NOW, THE
PLAN HAS NOT BEEN FINISHED. HOWEVER, ACCORDING TO DR.
CHUONG, VIETNAM HAS REACHED SOME MOST IMPORTANT TARGETS, FOR
EXAMPLE, ON THE LEGAL IMPLEMENTATION OF TRIPS, VIETNAM'S
LEGAL SYSTEM IS ONLY SHORT OF REGULATIONS ON PROTECTION OF

UNCLASSIFIED

UNCLASSIFIED PTQ6987

PAGE 01 HANOI 01523 02 OF 03 130518Z
ACTION EB-00

INFO LOG-00 AGRE-00 AID-00 AMAD-00 CEA-01 CIAE-00 CTME-00
DINT-00 DODE-00 ITCE-00 DOTE-00 SRPP-00 EAP-00 EXME-00
OIGO-00 E-00 FAAE-00 UTED-00 VC-00 FRB-00 H-01
TEDE-00 INR-00 ITC-01 LAB-01 LOC-01 L-00 VCE-00
AC-01 NSAE-00 NSCE-00 OES-01 OMB-01 OPIC-01 PA-00
PRS-00 ACE-00 SP-00 SSO-00 SS-00 STR-00 TEST-00
TRSE-00 USIE-00 EPAE-00 DRL-02 G-00 NFAT-00 SAS-00
/011W
------------------BC54B9 130518Z /38
P 130516Z JUN 02
FM AMEMBASSY HANOI
TO SECSTATE WASHDC PRIORITY 6753
INFO AMCONSUL HO CHI MINH CITY
USDOC WASHDC
USDA WASHDC

UNCLAS SECTION 02 OF 03 HANOI 001523

SIPDIS

STATE FOR EB/IPC:DRBEAN, EAP/BCLTV AND EB/ODC
STATE ALSO PASS USTR BURCKY/ALVAREZ AND BRYAN
STATE ALSO PASS USPTO FOR URBAN
STATE ALSO PASS LIBRARY OF CONGRESS FOR TEPP
USDA FOR FAS/FAA/AO HUETE
USDOC FOR LASHLEY AND 4431/MAC/AP/OKSA/HPPHO
USDOC ALSO FOR ITA/TD/OTEA/JJANICKE AND ITA/TD/SIF/CMUIR

E.O. 12958: N/A
UNCLASSIFIED

PAGE 02 HANOI 01523 02 OF 03 130518Z

LAYOUT DESIGN OF INTEGRATED CIRCUITS.

6. ACCORDING TO DR. CHUONG, IN THE CONTEXT OF ITS WTO
ACCESSION TALKS, VIETNAM HAS ALREADY FINISHED THE
"TRANSPARENCY" PHASE. VIETNAM IS NOW MOVING TO "SUBSTANTIAL
NEGOTIATION" PHASE. HE NOTED THAT THE LATEST NEGOTIATION
WAS HELD IN GENEVA ON APRIL 12-18, 2002 AND THAT DURING
THOSE TALKS THE U.S, EU, AUSTRALIA AND SWITZERLAND HAD RATED
HIGHLY VIETNAM'S EFFORT ON CREATING AN ADEQUATE LEGAL
STRUCTURE FOR IPR PROTECTION. HOWEVER, HE NOTED THAT VIETNAM
STILL HAS TO CONFRONT BIG CHALLENGES IN EFFECTIVE
ENFORCEMENT. AS REGARDS ENFORCEMENT, VIETNAM HAS PUT SPECIAL
EMPHASIS ON ADMINISTRATION REMEDIES TO PREVENT AND DEAL WITH
IPR VIOLATIONS. BUT, HE ADMITTED THAT IPR VIOLATIONS ARE A
REAL "HEADACHE ISSUE" IN VIETNAM WITH INCREASINGLY MORE
COMPLICATED INFRINGEMENT SITUATIONS. COUNTERFEIT AND PIRATED
PRODUCTS ARE SOLD PUBLICLY THROUGHOUT THE COUNTRY.
REGARDING COMPLETION OF AN EFFECTIVE IPR REGIME IN VIETNAM
THAT IS IN COMPLIANCE WITH TRIPS, DR. CHUONG NOTED EFFECTIVE
ENFORCEMENT IS THE GREATEST CHALLENGE AND NUMBER ONE TARGET
OF VIETNAM.

TRADEMARK ENFORCEMENT DRAWS INTEREST

7. ANOTHER AUDIENCE GRABBING SESSION WAS "TRADEMARK
ENFORCEMENT: AN INSIDER'S VIEW", PRESENTED BY BHARAT DUBE,
IP COUNSEL, RICHEMONT INTERNATIONAL. DUBE USED CASE STUDIES
UNCLASSIFIED

PAGE 03 HANOI 01523 02 OF 03 130518Z
(INCLUDING CARTIER) TO ILLUSTRATE THE TYPES OF
COUNTERFEITING ACTIVITIES THAT TAKE PLACE AND METHODS OF
INVESTIGATION, INCLUDING HOW TO DEVELOP EVIDENCE FOR LOCAL
LAW ENFORCEMENT AGENCIES AND HOW TO GET THEM TO ACT ON THAT
EVIDENCE. THE PARTICIPANTS WERE CLEARLY INTERESTED IN THIS
ISSUE AND IN UNDERSTANDING THE ROLES OF EACH OF DIFFERENT
ELEMENTS INVOLVING IN IPR ENFORCEMENT.

CUSTOMS LAYS OUT PROBLEMS AND FUTURE ACTIONS

8. VU NGOC ANH, DIRECTOR, INSTITUTE FOR CUSTOM RESEARCH,
GENERAL DEPARTMENT OF CUSTOM MADE A SPEECH ON "VIETNAMESE
CUSTOMS' EXPERIENCE IN IP ENFORCEMENT". HE SAID VIETNAM'S
CUSTOMS DEPARTMENT PLAYS AN IMPORTANT ROLE IN IPR PROTECTION
RELATED TO IMPORTS AND EXPORTS. HOWEVER, CUSTOMS'
ENFORCEMENT ACTIONS ARE STILL LIMITED. THE MAIN REASONS WERE
THE LACK OF AWARENESS OF IPR PROTECTION BY CUSTOMS
OFFICIALS, THE SHORTAGE OF SPECIALIZED CUSTOMS IPR SECTIONS,
AND CONSEQUENTLY, INCONSISTENT GUIDANCE WITHIN CUSTOMS ON
IPR ENFORCEMENT.

9. ANH SAID THE CUSTOMS DEPARTMENT NEEDS TO DO THE
FOLLOWING TASKS IN THE FUTURE. FIRST, BUILD SPECIALIZED IPR
SECTIONS IN THE GENERAL DEPARTMENT OF CUSTOMS AS WELL AS IN
LOCAL CUSTOMS OFFICES WITH A DATABASE SYSTEM FOR KEEPING
TRACK OF GOODS AND TO COMPARE THE IMPORT OR EXPORT OF GOODS
THAT HAVE REGISTERED TRADEMARKS OR COPYRIGHTS. SECOND, TRAIN
THE PROFESSIONAL CUSTOMS STAFF TO INCREASE AWARENESS OF IPR
PROTECTION. THIRD, SET UP A MECHANISM FOR IPR HOLDERS TO
REQUEST IPR PROTECTION ON A LONG-TERM AND CASE-BY-CASE
BASIS. FINALLY, PUSH FOR INCREASED INTERNATIONAL COOPERATION
UNCLASSIFIED

PAGE 04 HANOI 01523 02 OF 03 130518Z
WITH OTHER COUNTRIES TO GET MORE EXPERIENCE IN IPR
ENFORCEMENT.

MARKET MANAGEMENT BUREAU EXPLAINS ITS ENFORCEMENT ROLE

10. LE THE BAO, DIRECTOR, MARKET MANAGEMENT BUREAU ("MMB")
PRESENTED "MARKET MANAGEMENT ENFORCERS WITH COUNTERFEIT AND
INDUSTRIAL PROPERTY INFRINGEMENT FIGHTING". (NOTE: THE MMB
IS THE STATE AGENCY RESPONSIBLE FOR DOMESTIC COMMERCE. IN
TERMS OF IPR PROTECTION, MMB IS RESPONSIBLE FOR INSPECTING
FOR AND DEALING WITH COUNTERFEIT TRADEMARKS AND INDUSTRIAL
PROPERTY INFRINGEMENT. MMB HAS COOPERATED WITH A NUMBER OF
COUNTRIES ON TRADEMARK ENFORCEMENT, IN PARTICULAR WITH
FRANCE ON A PROJECT FOR THE PROTECTION FOR APPELLATION OF
ORIGIN OF GOODS.) BAO OUTLINED THE MEASURES TAKEN BY MMB TO
PROTECT IPR, SUCH AS STRENGTHENING PUBLIC AWARENESS,
ENHANCING COOPERATION BETWEEN IPR ENFORCEMENT AGENCIES AND
IPR ADMINISTRATIVE AGENCIES, AND ENCOURAGING ENTERPRISES TO
ACTIVELY PROTECT THEIR PRODUCTS. BAO ALSO NOTED THAT THE MMB
FACES A NUMBER OF DIFFICULTIES IN TAKING ACTION AGAINST
COUNTERFEIT AND IPR INFRINGEMENT. IN PARTICULAR, HE SAID
THAT THE CURRENT LEGAL GUIDELINES THAT APPLIED TO THE MMB'S
WORK WERE AT TIMES UNCLEAR AND MADE A SOLID LEGAL
DETERMINATION OF INFRINGEMENT MORE COMPLICATED AND
"CONTROVERSIAL." FOR EXAMPLE, BAO CLAIMED THAT A NUMBER OF
LEGAL GUIDELINES MENTION THE CONCEPT OF "USE OF A SIGN THAT

UNCLASSIFIED

UNCLASSIFIED PTQ6988

PAGE 01 HANOI 01523 03 OF 03 130518Z
ACTION EB-00

INFO LOG-00 AGRE-00 AID-00 AMAD-00 CEA-01 CIAE-00 CTME-00
DINT-00 DODE-00 ITCE-00 DOTE-00 SRPP-00 EAP-00 EXME-00
OIGO-00 E-00 FAAE-00 UTED-00 VC-00 FRB-00 H-01
TEDE-00 INR-00 ITC-01 LAB-01 LOC-01 L-00 VCE-00
AC-01 NSAE-00 NSCE-00 OES-01 OMB-01 OPIC-01 PA-00
PRS-00 ACE-00 SP-00 SSO-00 SS-00 STR-00 TEST-00
TRSE-00 USIE-00 EPAE-00 DRL-02 G-00 NFAT-00 SAS-00
/011W
------------------BC54BD 130518Z /38
P 130516Z JUN 02
FM AMEMBASSY HANOI
TO SECSTATE WASHDC PRIORITY 6754
INFO AMCONSUL HO CHI MINH CITY
USDOC WASHDC
USDA WASHDC

UNCLAS SECTION 03 OF 03 HANOI 001523

SIPDIS

STATE FOR EB/IPC:DRBEAN, EAP/BCLTV AND EB/ODC
STATE ALSO PASS USTR BURCKY/ALVAREZ AND BRYAN
STATE ALSO PASS USPTO FOR URBAN
STATE ALSO PASS LIBRARY OF CONGRESS FOR TEPP
USDA FOR FAS/FAA/AO HUETE
USDOC FOR LASHLEY AND 4431/MAC/AP/OKSA/HPPHO
USDOC ALSO FOR ITA/TD/OTEA/JJANICKE AND ITA/TD/SIF/CMUIR

E.O. 12958: N/A
UNCLASSIFIED

PAGE 02 HANOI 01523 03 OF 03 130518Z

IS IDENTICAL OR SIMILAR TO THE PROTECTED TRADEMARK" OR "USE
OF A SIGN THAT IS EASY TO CAUSE CONFUSION." BAO CONCLUDED
THAT THE CONCEPT OF IPR IN VIETNAM WAS STILL A NEW AND
"SENSITIVE" MATTER. AWARENESS OF IPR PROTECTION AMONG THOSE
WHO ARE SUPPOSED TO ENFORCE THE LAW, THE PRODUCERS, THE
TRADERS AND THE PUBLIC IS VERY LIMITED.

COURTS NEED SEPARATE IPR CODE AND BETTER LITIGATION LAW

11. NGUYEN VAN LUAT, VICE DIRECTOR, INSTITUTE FOR JUDICIAL
SCIENCE (SUPREME PEOPLE'S COURT) ADDRESSED THE ISSUE OF "THE
ROLE OF VIETNAM'S COURTS IN PROTECTING INDUSTRIAL PROPERTY
RIGHTS UNDER CIVIL AND CRIMINAL LITIGATION PROCEDURES." THE
PRESENTATION OUTLINED THE COURT'S ROLE AND VIETNAM'S CIVIL
AND CRIMINAL LITIGATION PROCEDURES FOR SETTLING IPR
DISPUTES. HE NOTED THAT VIETNAM NEEDS TO COMPLETE LEGAL
REGULATIONS ON IPR, IN PARTICULAR, TO PROMULGATE A SEPARATE
IPR CODE AND TO PERFECT LITIGATION LAW.

12. THE FINAL PRESENTATION "COMMENTS ON IPR ENFORCEMENT"
MADE BY JOSEPH T. SIMONE, MR. MAGNUS HIRSHCH, AND MR. PAUL
NORRIS, LAWYERS OF BAKER & MCKENZIE IN HONG KONG/ BEIJING/
FRANKFURT/ HO CHI MINH. THIS SESSION DREW A GREAT DEAL OF
ATTENTION FROM THE AUDIENCE. THE SPEAKERS FOCUSED ON ISSUES
RELATED TO IPR, IPR INFRINGEMENT, AND IPR ENFORCEMENT
THROUGH JUDICIAL, ADMINISTRATIVE AND PRIVATE REMEDIES USING
EXAMPLES FROM HONG KONG, CHINA AND GERMANY'S LEGAL SYSTEM ON
UNCLASSIFIED

PAGE 03 HANOI 01523 03 OF 03 130518Z
IPR ENFORCEMENT AND LEGAL REMEDIES DEALING WITH IPR
VIOLATIONS.
PORTER

UNCLASSIFIED

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