Fines for violations against regulations on rights of plant variety patent holders in Vietnam

Fines for violations against regulations on rights of plant variety patent holders in Vietnam in Vietnam (Internet image)

Rights of plant variety protection title holder in Vietnam

According to Clauses 5 and 24, Article 4 of the Law on Intellectual Property 2022, which regulates plant varieties and rights to plant varieties, then:

- Rights to plant varieties means rights of an organization or individual to new plant varieties which such organization or individual has selected and created, discovered and developed, or which they own.

- Plant variety means a plant grouping 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 grouping by the expression of at least one inheritable phenotype.

Pursuant to Article 186 of the Law on Intellectual Property 2022, the rights of protection certificate holders include:

- A protection certificate holder has the right to exercise or authorize others to exercise the following rights to reproductive materials of a protected plant variety:

= To conduct production or propagation;

= To process them for the purpose of propagation;

= To offer them for sale;

= To sell them or conduct other marketing activities:

= To export them;

= To import them:

= To store them for conducting acts specified at Points a. b. c. d. e and f of Clause 1 of Article 186 of the Law on Intellectual Property 2022.

- Rights of a plant variety protection title holder provided for in Clause 1 of Article 186 of the Law on Intellectual Property 2022 are applicable to materials harvested from the illegal use of reproductive materials of a protected plant variety, unless the protection title holder does not exercise his/her rights to reproductive materials though having art-opportunity to do so.

- To prevent others from using the plant variety under Article 188 of the Law on Intellectual Property 2022.

- To pass by inheritance or bequeath or assign the rights to the plant variety under Chapter XV of the Law on Intellectual Property 2022.

Fines for violations against regulations on rights of plant variety patent holders applied from July 28, 2023 in Vietnam

According to Article 17 of Decree 31/2023/ND-CP (effective as of July 28, 2023), fines for violations against regulations on rights of plant variety patent holders in Vietnam are as follows:

- A fine ranging from VND 20.000.000 to VND 30.000.000 shall be imposed for using a plant variety, of which the application for a patent has been accepted, for commercial purposes without payment of compensates as regulated in Article 189 of the Law on Intellectual Property 2022.

- A fine ranging from VND 40.000.000 to VND 50.000.000 shall be imposed for using rights of a plant variety patent holder on propagating materials of a registered plant variety without consent of such patent holder for any of the following purposes:

= Production or propagation;

= Treatment for propagation purpose;

= Offering;

= Sale or performance of activities for access to the market;

= Export;

= Import;

= Storage for performance any of the acts in Points a, b, c, d, dd and e of Clause 2 of Article 17 of Decree 31/2023/ND-CP;

= Performance of any of the acts in Points a, b, c, d, dd and e of Clause 2 of Article 17 of Decree 31/2023/ND-CP with regard to plant varieties of which the production must use the registered varieties;

= Performance of any of the acts specified in Points a, b, c, d, dd and e of Clause 2 of Article 17 of Decree 31/2023/ND-CP with regard to plant varieties originated from registered plant varieties, except for the cases where a registered plant variety is originated from another.

- A fine ranging from VND 40.000.000 to VND 50.000.000 shall be imposed for using any harvested material obtained from the illegal use of propagating materials of the registered plant variety to perform the acts specified in Clause 2 of Article 17 of Decree 31/2023/ND-CP, except for the case where the plant variety patent holder has had the reasonable opportunity to exercise his or her right to propagation materials without exercising the right.

- A fine ranging from VND 40.000.000 to VND 50.000.000 shall be imposed for using a variety denomination which is the same or similar with the denomination of a registered variety of the same, or a closely related, species.

In addition, according to Clause 5, Article 17 of Decree 31/2023/ND-CP (effective as of July 28, 2023) stipulating additional sanctions for violations against regulations on rights of plant variety patent holders is that exhibits and instrumentalities used for committing administrative violations specified in Clauses 1, 2 and 3 of Article 17 of Decree 31/2023/ND-CP shall be confiscated;

Pursuant to Clause 6, Article 17 of Decree 31/2023/ND-CP (effective as of July 28, 2023) stipulating on

The remedial measure for violations against regulations on rights of plant variety patent holders is that enforced return of illegal profits obtained from violations specified in in Article 17 of Decree 31/2023/ND-CP (effective as of July 28, 2023).

Thus, violations of plant seed production can be fined up to VND 50,000,000 for individuals and up to VND 100,000,000 for organizations.

In addition, when falling into the cases specified in Clauses 5 and 6, Article 17 of Decree 31/2023/ND-CP (effective from July 28, 2023), organizations or individuals that commit violations against regulations on rights of plant variety patent holders to be forced to take remedial measures and enforce additional sanctions in accordance with law.

Nguyen Pham Nhut Tan

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