Law Amending Law on Insurance Business and Law on Intellectual Property, Law No. 42/2019/QH14

Order

On the promulgation of law

THE PRESIDENT OF THE SOCIALIST REPUBLIC OF VIETNAM

Pursuant to Articles 88 and 91 of the Constitution of the Socialist Republic of Vietnam;

Pursuant to Article 80 of the Law on Promulgation of Legal Documents,

PROMULGATES:

The Law on Amending and Supplementing a Number of Articles of the Law on Insurance Business and the Law on Intellectual Property,

which was passed on June 14, 2019, by the XIV^thNational Assembly of the Socialist Republic of Vietnam at its 7^thsession.

President of the Socialist Republic of Vietnam
NGUYEN PHU TRONG

LAW

Amending and Supplementing a Number of Articles of the Law on Insurance Business and the Law on Intellectual Property^[1]

Pursuant to the Constitution of the Socialist Republic of Vietnam;

The National Assembly promulgates the Law Amending and Supplementing a Number of Articles of Law No. 24/2000/QH12 on Insurance Business which was amended and supplemented under Law No. 61/2010/QH12 and Law No. 50/2005/QH11 on Intellectual Property which was amended and supplemented under Law No. 36/2009/QH12.

Article 1.To amend and supplement a number of articles of the Law on Insurance Business

1. To add Clauses 21, 22, 23, 24, 25 and 26 below Clause 20, Article 3 as follows:

“21.Insurance auxiliary servicesmean a constituent of the insurance business, which are performed by insurance enterprises, insurance brokerage enterprises or other organizations or individuals for profit, including insurance consultancy, insurance risk assessment, insurance actuary, insurance loss assessment, and insurance claim settlement support.

22.Insurance consultancymeans the provision of consultancy services on insurance programs, insurance products, insurance risk administration, and loss prevention and restriction.

23.Insurance risk assessmentmeans the identification, classification, and assessment of the nature and level of risks and assessment of the administration of human, property and civil liability risks to obtain grounds for insurance participation.

24.Insurance actuarymeans the collection and analysis of statistical figures, calculation of insurance premiums, technical reserves, capital and solvency margin, assessment of business operation performance, and enterprise valuation so as to ensure financial safety of insurance enterprises.

25.Insurance loss assessmentmeans the determination of the current situation, causes, and levels of loss, and allocation of responsibilities for compensation to serve as a basis for insurance claim settlement.

26.Insurance claim settlementsupportmeans the provision of support to insurance buyers, the insured, beneficiaries, or insurance enterprises in carrying out procedures for insurance claim settlement.”.

2. To amend and supplement Article 11 as follows:

“Article 11. Right to join socio-professional insurance business organizations

Insurance enterprises, insurance agents, insurance brokerage enterprises, and individuals and insurance auxiliary service-providing organizations may join socio-professional insurance business organizations operating for the purpose of developing the insurance market and protecting lawful rights and interests of members in accordance with law.”.

3. To amend and supplement the title of Chapter IV as follows:

“Chapter IV

INSURANCE AGENTS, INSURANCE BROKERAGE ENTERPRISES, INSURANCE AUXILIARY SERVICES”

4. To add Section 3 below Section 2, Chapter IV as follows:

“Section 3

INSURANCE AUXILIARY SERVICES

Article 93a.Provision of insurance auxiliary services

1. Principles of provision of insurance auxiliary services:

a/ Honesty, objectivity, and transparency; assurance of lawful rights and interests of related parties;

b/ Compliance with standards and technical regulations on insurance auxiliary services;

c/ Compliance with codes of professional ethics and conduct issued by socio-professional organizations.

2. Individuals and organizations satisfying the conditions prescribed in Article 93b of this Law may provide insurance auxiliary services according to the following regulations:

a/ Individuals may provide insurance consultancy services;

b/ Insurance enterprises, insurance brokerage enterprises and other organizations having  the legal person status may provide insurance auxiliary services (below referred to as insurance auxiliary service-providing organizations).

3. Responsibilities of individuals and insurance auxiliary service-providing organizations:

a/ To keep secret customer information, to use customer information for the proper purposes and refrain from providing the information to any third parties without customers’ consent, except the cases prescribed by law;

b/ Individuals providing insurance consultancy services are required to buy professional liability insurance for the provision of insurance consultancy services; insurance auxiliary service-providing organizations are required to buy professional liability insurance compatible to each type of insurance auxiliary services they provide;

c/ Insurance auxiliary service-providing organizations may not provide insurance loss assessment and insurance claim settlement support services for insurance contracts in which they are insurance buyers, the insured or beneficiaries;

d/ Insurance brokerage enterprises may not provide the insurance loss assessment service for insurance contracts for which they arrange the conclusion.

4. Contracts for provision of insurance auxiliary services must be made in writing.

Article 93b. Conditions for provision of insurance auxiliary services

1. An individual providing insurance consultancy services must satisfy the following conditions:

a/ Being aged full 18 years or older, having full civil act capacity;

b/ Possessing a university or higher degree in insurance business. Those who do not possess such a degree must possess a university or higher degree in another discipline and an insurance consultant certificate granted by a training institution lawfully established and operating at home or abroad.

2. An insurance auxiliary service-providing organization must satisfy the following conditions:

a/ Having the legal person status and being lawfully established and operating;

b/ Its staff members who directly perform insurance auxiliary activities must satisfy the conditions prescribed at Point a, Clause 1 of this Article; possess degrees and certificates on auxiliary insurance compatible to the type of insurance auxiliary services they perform, which are granted by training institutions lawfully established and operating at home or abroad.

Persons directly performing insurance loss assessment must also satisfy the criteria on assessors in accordance with the commercial law.

Persons directly performing insurance actuary must also satisfy the criteria on law observance, ethical and professional qualifications, experience in insurance actuary, and membership status of the International Actuarial Association.

The Government shall detail this Point.

3. The Minister of Finance shall prescribe contents of training programs, testing and grant of insurance auxiliary certificates for domestic training institutions, and recognition of insurance auxiliary certificates granted by foreign institutions.”.

5. To amend and supplement the title of Chapter VI as follows:

“Chapter VI

FOREIGN-INVESTED INSURANCE ENTERPRISES AND INSURANCE BROKERAGE ENTERPRISES; CROSS-BORDER SERVICE PROVISION”

6. To amend and supplement Clause 2, Article 105 as follows:

“2. Foreign insurance enterprises and insurance brokerage enterprises providing cross-border insurance services; foreign organizations providing cross-border insurance auxiliary services, and foreign individuals providing the cross-border insurance consultancy service under the Government’s regulations.”.

7. To amend and supplement a number of clauses of Article 120 as follows:

a/ To amend and supplement Clause 1 as follows:

“1. Promulgating, and guiding the implementation of, legal documents on insurance business and insurance auxiliary services; formulating strategies, plans and policies on development of the insurance market in Vietnam;”;

b/ To amend and supplement Clause 4 as follows:

“4. Overseeing insurance business activities through professional activities, financial situation, enterprise governance, risk administration, and law observance of insurance enterprises, insurance brokerage enterprises; applying necessary measures so that insurance enterprises ensure financial requirements and fulfill their commitments to insurance buyers.

Overseeing the provision of insurance auxiliary services through compliance with standards and technical regulations on insurance auxiliary, responsibilities of individuals and insurance auxiliary service-providing organizations, and conditions for provision of insurance auxiliary services and cross-border insurance auxiliary services;”.

8. To add Clause 9a below Clause 9, Article 124 as follows:

“9a. Violating technical regulations on insurance auxiliary; responsibilities of individuals and insurance auxiliary service-providing organizations; conditions for provision of insurance auxiliary services; provision of different types of insurance auxiliary services; and provision of cross-border insurance auxiliary services;”.

Article 2.To amend and supplement a number of articles of the Law on Intellectual Property

1. To amend and supplement Point a, Clause 3, Article 6 as follows:

“a/ Industrial property rights to an invention, an industrial design, a layout-design, or a mark shall be established on the basis of a competent state agency’s decision on grant of a protection title according to the registration procedures prescribed in this Law or the recognition of international registration under treaties to which the Socialist Republic of Vietnam is a contracting party.

For a well-known mark, industrial property rights shall be established on the basis of use process, not subject to any registration procedures.

For a geographical indication, industrial property rights shall be established on the basis of a competent state agency’s decision on grant of a protection title according to the registration procedures prescribed in this Law or under treaties to which the Socialist Republic of Vietnam is a contracting party;”.

2. To amend and supplement Clause 3, and add Clause 4 below Clause 3, Article 60 as follows:

“3. An invention shall not be considered having lost its novelty if it is publicly disclosed by a person who has the right to make registration defined in Article 86 of this Law or a person who has acquired information on such invention directly or indirectly from the former as long as the invention registration application is filed in Vietnam within 12 months from the date of disclosure.

4. The provision in Clause 3 of this Article shall also apply to an invention publicly disclosed in an industrial property registration application or industrial property protection title announced by the state management agency in charge of industrial property in case the announcement does not conform with law or the registration application is filed by a person having no right to make registration.”.

3. To amend and supplement Article 61 as follows:

“Article 61. Inventive step of inventions

An invention shall be considered involving an inventive step if, based on technical solutions already publicly disclosed through use or by means of a written description or any other forms, inside or outside the country, prior to the filing date or the priority date, as applicable, of the invention registration application, it constitutes an inventive progress and cannot be easily created by a person with average knowledge in the corresponding field.

2. Technical solutions which are inventions disclosed as prescribed in Clauses 3 and 4, Article 60 of this Law may not serve as a basis for evaluation of the inventive step of such inventions.”.

4. To amend and supplement a number of clauses of Article 80 as follows:

a/ To amend and supplement Clause 1 as follows:

“1. Names or indications which have become generic names of goods as cognized by relevant consumers in the territory of Vietnam;”;

b/ To amend and supplement Clause 3 as follows:

“3. Geographical indications identical with or similar to a protected mark or a mark of which the registration application has the earlier filing date or priority date, if the use of such geographical indications is likely to cause confusion as to the origin of products;”;

5. To add Clause 3 below Clause 2, Article 89 as follows:

“3. An application for establishment of industrial property rights may be submitted in the printed form to the state management agency in charge of industrial property rights or filed in the electronic form via the online system for application submission.”.

6. To amend and supplement the title of Section 4, Chapter VIII as follows:

“Section 4

INTERNATIONAL APPLICATIONS AND REQUESTS, AND THE PROCESSING THEREOF”

7. To add Article 120a below Article 120 in Section 4, Chapter VIII as follows:

“Article 120a. International requests on geographical indications and the processing thereof

1. Requests for recognition and protection of geographical indications under treaties which the Socialist Republic of Vietnam is negotiating are called international requests.

2. The announcement of international requests, processing of third persons’ opinions, and assessment of conditions for protection of geographical indications in international requests must comply with relevant provisions of this Law regarding geographical indications in applications for registration of geographical indications filed to the state management agency in charge of industrial property rights.”.

8. To amend and supplement Clause 2, Article 136 as follows:

“2. Owners of marks are obliged to use such marks continuously. The use of a mark by the licensee under a mark license contract shall also be considered the same as the use by the mark owner. In case a mark has not been used for 5 consecutive years or more, its registration certificate shall be invalidated according to Article 95 of this Law.”.

9. To amend and supplement Article 148 as follows:

“Article 148.Validity of contracts for transfer of industrial property rights

1. For industrial property rights established on the basis of registration under Point a, Clause 3, Article 6 of this Law, industrial property right assignment contracts shall be valid upon registration with the state management agency in charge of industrial property rights.

2. For industrial property rights established on the basis of registration under Point a, Clause 3, Article 6 of this Law, industrial property object license contracts shall be valid as agreed upon by the involved parties.

3. Industrial property object license contracts prescribed in Clause 2 of this Article, except mark license contracts, must be registered with the state competent agency in charge of industrial property rights to be legally valid for the third parties.

4. The industrial property object license contract shall be invalidatedex-officioupon the termination of the licensor’s industrial property rights.”.

10. To add Clauses 4 and 5 below Clause 3, Article 198 as follows:

“4. If being concluded by the court as not having committed acts of infringing upon intellectual property rights, an organization or individual being the defendant in a lawsuit over intellectual property right infringement may request the court to force the plaintiff to pay it/him/her reasonable expenses for hiring lawyers and other expenses in accordance with law.

5. In case an organization or individual abuses the procedures for protection of intellectual property rights, causing damage for another organization or individual, the latter may request the court to force the former to compensate for damage caused by such abuse, covering also reasonable expenses for hiring lawyers. Acts of abusing the procedures for protection of intellectual property rights include acts of deliberately surpassing the scope and targets of these procedures.”.

11. To amend and supplement Clause 1, Article 205 as follows:

“1. In case the plaintiff can prove that an act of infringing upon intellectual property rights has caused material damage to it/him/her, it/he/she may request the court to decide on the compensation level on one of the following bases:

a/ Total material damage calculated in an amount of money plus the profit gained by the defendant as a result of the act of infringing upon intellectual property rights, provided the plaintiff’s reduced profit amount has not yet been calculated into total material damage;

b/ The value of the intellectual property object license contract with the presumption that the defendant has been licensed by the plaintiff to use that object under a license contract within the scope corresponding to the infringing act already committed;

c/ The material damage calculated by other methods proposed by intellectual property right holders in accordance with law;

d/ In case it is impossible to determine the level of compensation for material damage on the bases specified at Points a, b and c of this Clause, such compensation level shall be set by the court, depending on the damage extent, but must not exceed VND 500 million.”.

12. To amend and supplement Clause 1, Article 218 as follows:

“1. When the person requesting the suspension of customs procedures has fulfilled the obligations specified in Article 217 of this Law, the customs office shall issue a decision on suspension of customs procedures for the goods lot. The customs office shall, within 30 days after issuing a decision on application of administrative measures for handing counterfeit mark goods and illegally reproduced goods under Clause 4, Article 216 of this Law, provide the intellectual property right holder with information on the names and addresses of the sender, exporter, goods recipient or importer; written goods descriptions; goods quantity; and the country of original of goods (if possible).”.

Article 3.Effect

1. This Law takes effect on November 1, 2019, except the cases prescribed in Clause 4 of this Article.

2. To add Section 32a below Section 32, Appendix 4, on the list of conditional business lines to Investment Law No. 67/2014/QH13, which was amended and supplemented under Law No. 90/2015/QH13, Law No. 03/2016/QH14, Law No. 04/2017/QH14, and Law No. 28/2018/QH14 as follows:

“32a. Insurance auxiliary services, including insurance consultancy, insurance risk assessment, insurance actuary, insurance loss assessment, and insurance claim settlement support”.

3. Insurance auxiliary services arising in the course of doing insurance business shall be prescribed by the Government with the approval of the National Assembly Standing Committee prior to their promulgation.

4. Provisions on intellectual property in this Law take effect on January 14, 2019, for the following cases:

a/ Applications for establishment of industrial property filed from January 14, 2019, onwards;

b/ Request for termination of invention patents, utility solution patents, and geographical indication registration certificates which are granted on the basis of the registration applications for establishment of industrial property rights filed from January 14, 2019, onwards;

c/ Requests for invalidation of mark registration certificates made from January 14, 2019, onwards;

d/ Lawsuits over intellectual property right infringement accepted by competent agencies from January 14, 2019, onwards; and other requests on protection of intellectual property rights made from January 14, 2019, onwards.

Article 4.Transitional provisions

1. Within 1 year after the effective date of this Law, individuals and insurance auxiliary service-providing organizations before the effective date of this Law must satisfy the conditions for provision of insurance auxiliary services prescribed in this Law. Past the time limit prescribed in this Clause, individuals and organizations that still fail to meet the prescribed conditions may not continue providing insurance auxiliary services until they fully meet these conditions.

2. Patent and geographical indication registration applications filed before January 14, 2019, shall be furthered processed under Law No. 50/2005/QH11 on Intellectual Property which was amended and supplemented under Law No. 36/2009/QH12.

3. Mark license contracts which have been signed but not yet registered with the state management agency in charge of industrial property rights before January 14, 2019, are legally valid to third parties from January 14, 2019.

4. Lawsuits over intellectual property right infringement which have been accepted by competent agencies before January 14, 2019, but not yet settled, shall be continued processed under Law No. 50/2005/QH11 on Intellectual Property which was amended and supplemented under Law No. 36/2009/QH12.

This Law was passed on June 14, 2019, by the XIVth National Assembly of the Socialist Republic of Vietnam at its 7th session.-

Chairwoman of the National Assembly
NGUYEN THI KIM NGAN