Law Amending and Supplementing Certain Articles of the Insurance Business Law and the Intellectual Property Law No. 42/2019/QH14

 

LAW

AMENDMENTS AND SUPPLEMENTS TO CERTAIN PROVISIONS OF THE INSURANCE BUSINESS LAW

INSURANCE BUSINESS LAW, INTELLECTUAL PROPERTY LAW

          On the basis of the Constitution of the Socialist Republic of Vietnam;

    The National Assembly promulgates the Law amending and supplementing certain Articles of the Insurance Business Law No. 24/2000/QH10 which has been amended and supplemented by Law No. 61/2010/QH12 and the Intellectual Property Law No. 50/2005/QH11 which has been amended and supplemented by Law No. 36/2009/QH12.

          Article 1. Amendments and supplements to certain provisions of the Insurance Business Law

           1. Supplement Clauses 21, 22, 23, 24, 25, and 26 following Clause 20 of Article 3 as follows:

       "21. Ancillary insurance services are part of the insurance business activities carried out by insurance companies, insurance brokerage firms, and other organizations and individuals for profit purposes, including insurance advisory services, risk assessment services, insurance calculation services, insurance loss appraisal services, and assistance in claims settlement.

       22. Insurance advisory services are activities providing advice on insurance programs, insurance products, risk management, and prevention and limitation of losses.

       23. Risk assessment services for insurance are activities identifying, classifying, assessing the nature and degree of risks, evaluating human, property, and civil liability risk management to serve participation in insurance.

       24. Insurance calculation services are activities collecting and analyzing statistical data, calculating insurance premiums, reserves, capital, solvency margin, evaluating business performance, determining enterprise value to ensure financial safety of insurance companies.

       25. Insurance loss appraisal services are activities determining the condition, cause, extent of damage, calculating allocation of compensation responsibility to serve claims settlement.

       26. Assistance in insurance claims settlement is activity supporting policyholders, insured parties, beneficiaries, or insurance companies in carrying out procedures for claims settlement."

          2. Amend and supplement Article 11 as follows:

       "Article 11. Right to participate in social-professional organizations for insurance business

          Insurance companies, insurance agents, insurance brokerage firms, individuals, and organizations providing ancillary insurance services have the right to participate in social-professional organizations for insurance business with the aim of developing the insurance market and protecting the legitimate rights and interests of members in accordance with the provisions of the law."

          3. Amend the name of Chapter IV as follows:

"Chapter IV

INSURANCE AGENTS, INSURANCE BROKER COMPANIES,

ANCILLARY INSURANCE SERVICES"

          4. Supplement Section 3 following Section 2 of Chapter IV as follows:

"Section 3

AUXILIARY INSURANCE SERVICES

       Article 93a. Provision of ancillary insurance services

       1. Principles of provision of ancillary insurance services:

       a) Honesty, objectivity, transparency; ensuring the legitimate rights and interests of all parties involved;

       b) Compliance with technical standards and norms in the field of ancillary insurance;

       c) Compliance with ethical and professional conduct rules issued by social-professional organizations.

       2. Individuals and organizations meeting the conditions stipulated in Article 93b of this Law shall have the right to provide ancillary insurance services as follows:

       a) Individuals have the right to provide insurance advisory services;

       b) Insurance companies, insurance brokerage firms, and other organizations with legal personality have the right to provide ancillary insurance services (collectively referred to as service providers of ancillary insurance services).

       3. Responsibilities of individuals and organizations providing ancillary insurance services:

       a) Maintaining confidentiality of customer information, using customer information for intended purposes only, and not disclosing it to third parties without customer consent, except as provided by law;

       b) Individuals providing insurance advisory services must purchase professional liability insurance for their advisory services; organizations providing ancillary insurance services must purchase appropriate professional liability insurance for each type of ancillary insurance service;

       c) Organizations providing ancillary insurance services may not provide loss appraisal services and assistance in claims settlement for insurance contracts where such organizations are simultaneously the policyholder, insured party, or beneficiary;

       d) Insurance brokerage firms may not provide loss appraisal services for insurance contracts that they arrange to conclude.

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

       Article 93b. Conditions for provision of ancillary insurance services

       1. Individuals providing insurance advisory services must meet the following conditions:

       a) At least eighteen years old, having full capacity for civil acts;

       b) Hold a bachelor's degree or higher in insurance. In cases where there is no bachelor's degree or higher in insurance, they must hold a bachelor's degree or higher in another field and a certificate in insurance advisory services issued by a training institution established and operating legally within or outside the country.

       2. Organizations providing ancillary insurance services must meet the following conditions:

       a) Have legal personality, established and operating legally;

          b) Individuals directly performing auxiliary insurance activities in organizations providing auxiliary insurance services must meet the conditions stipulated in point a, Clause 1 of this Article; hold certificates or diplomas in auxiliary insurance relevant to the type of auxiliary insurance service provided, issued by training institutions established and operating legally within the country or abroad.

          Individuals directly conducting insurance loss appraisal activities must also meet the standards for appraisers as prescribed by laws on commerce.

          Individuals directly carrying out insurance calculation activities must also meet the standards regarding compliance with laws, ethics, professional qualifications, experience in insurance calculation practice, and membership in the International Association of Insurance Calculators.

          The Government shall provide detailed regulations on this point.

          3. The Minister of Finance shall prescribe the content of training programs, examinations, and issuance of auxiliary insurance certificates for domestic training institutions and recognize foreign auxiliary insurance certificates issued by training institutions abroad.”

          5. Amend and supplement the name of Chapter VI as follows:

PROVISIONS ON THE SUPPLY, MANAGEMENT, AND USE OF INFORMATION ON VEHICLES ENTERING AND LEAVING PASSENGER TERMINALS”

INSURANCE COMPANIES AND

 INSURANCE INTERMEDIARY COMPANIES WITH FOREIGN INVESTMENT

 AND CROSS-BORDER SERVICE PROVISION”

          6. Amend and supplement Clause 2 of Article 105 as follows:

          “2. Foreign insurance companies, foreign insurance intermediary companies providing cross-border insurance services, foreign organizations providing cross-border auxiliary insurance services, and foreign individuals providing cross-border insurance advisory services as prescribed by the Government.”

          7. Amend and supplement some clauses of Article 120 as follows:

          a) Amending and supplementing Clause 1 as follows:

          “1. Issuing and guiding the implementation of legal normative documents on insurance business and auxiliary insurance services; developing strategies, plans, and policies for the development of the Vietnamese insurance market;”

          b) Amend and supplement Clause 4 as follows:

          “4. Supervising insurance business operations through business activities, financial status, corporate governance, risk management, and compliance with laws by insurance companies and insurance intermediaries; applying necessary measures to ensure that insurance companies meet financial requirements and fulfill commitments to policyholders.”

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

          8. Supplement Clause 9a following Clause 9 of Article 124 as follows:

          “9a. Violating provisions on technical standards in the auxiliary insurance sector; responsibilities of individuals and organizations providing auxiliary insurance services; conditions for providing auxiliary insurance services; types of auxiliary insurance services; cross-border auxiliary insurance service provision;”

          Article 2. Amending and supplementing some articles of the Intellectual Property Law

          1. Amending and supplementing Point a Clause 3 Article 6 as follows:

          "a) Industrial property rights for inventions, industrial designs, layout-designs, trademarks are established on the basis of decisions to grant protection certificates by competent state agencies according to the registration procedures prescribed in this Law or recognition of international registrations under international treaties to which the Socialist Republic of Vietnam is a member.

          Industrial property rights for well-known trademarks are established on the basis of use, regardless of the registration procedures.

          Industrial property rights for geographical indications are established on the basis of decisions to grant protection certificates by competent state agencies according to the registration procedures prescribed in this Law or under international treaties to which the Socialist Republic of Vietnam is a member;"

          2. Amending and supplementing Clause 3 and adding Clause 4 after Clause 3 Article 60 as follows:

          "3. An invention shall not be deemed to have lost novelty if it is disclosed publicly by the person entitled to file the application as provided for in Article 86 of this Law or by a person who has obtained information about the invention directly or indirectly from that person, provided that the application for the invention is filed in Vietnam within twelve months from the date of disclosure.

          4. The provisions of Clause 3 of this Article also apply to inventions disclosed in applications for industrial property rights or protection certificates for industrial property rights published by the competent state management agency for industrial property rights in cases where such publication does not comply with the provisions of the law or the application is filed by a person without the right to file;"

          3. Amending and supplementing Article 61 as follows:

          "Article 61. Inventive Step of Invention

          1. An invention shall be considered to have inventive step if, based on technical solutions that have been disclosed publicly through use, described in writing or in any other form in Vietnam or abroad before the filing date or the priority date of the application for the invention in cases where the application for the invention claims priority, it represents a non-obvious advance over prior art, and cannot be easily created by a person having ordinary skill in the relevant field of technology.

          2. Technical solutions disclosed as inventions under Clauses 3 and 4 of Article 60 of this Law shall not serve as a basis for assessing the inventive step of those inventions;"

          4. Amending and supplementing some clauses of Article 80 as follows:

          a) Amending and supplementing Clause 1 as follows:

          "1. Names or designations that have become generic terms for goods according to the perception of related consumers in the territory of Vietnam;"

          b) Amending and supplementing Clause 3 as follows:

          "3. A geographical indication that is identical or similar to a trademark already protected or applied for with an earlier filing date or priority date, if the use of that geographical indication would likely cause confusion regarding the commercial origin of the goods;"

          5. Adding Clause 3 after Clause 2 Article 89 as follows:

          "3. Applications for establishing industrial property rights may be submitted in paper form to the competent state management agency for industrial property rights or electronically via the online submission system;"

          6. Amending and supplementing the title of Section 4 Chapter VIII as follows:

"Section 4

INTERNATIONAL APPLICATIONS AND PROPOSALS

AND HANDLING OF INTERNATIONAL APPLICATIONS AND PROPOSALS"

          7. Adding Article 120a after Article 120 in Section 4 Chapter VIII as follows:

          "Article 120a. International Proposals and Handling of International Proposals Regarding Geographical Indications

          1. Proposals for recognition and protection of geographical indications under international treaties being negotiated by the Socialist Republic of Vietnam are referred to as international proposals.

          2. The publication of international proposals, handling third-party opinions, and evaluating the conditions for protecting geographical indications in international proposals shall be carried out according to the corresponding provisions of this Law for geographical indications in applications for geographical indications filed with the competent state management agency for industrial property rights;"

          8. Amending and supplementing Clause 2 Article 136 as follows:

          "2. The owner of a trademark has the obligation to continuously use the trademark. The use of the trademark by the recipient under a trademark usage contract is also considered an act of using the trademark by the trademark owner. If the trademark is not continuously used for five years or more, the Certificate of Registration for the trademark will lose its validity according to the provisions of Article 95 of this Law;"

          9. Amending and supplementing Article 148 as follows:

          "Article 148. Effectiveness of Contracts Transferring Industrial Property Rights

          1. For types of industrial property rights established on the basis of registration as provided for in Point a Clause 3 Article 6 of this Law, contracts transferring industrial property rights only take effect when registered with the competent state management agency for industrial property rights.

          2. For types of industrial property rights established on the basis of registration as provided for in Point a Clause 3 Article 6 of this Law, contracts for the use of industrial property objects take effect according to the agreement between the parties.

          3. Contracts for the use of industrial property objects under Clause 2 of this Article, except for trademark usage contracts, must be registered with the competent state management agency for industrial property rights to have legal effect against third parties.

          4. Contracts for the use of industrial property objects are automatically terminated if the industrial property rights of the transferor are terminated;"

          10. Adding Clause 4 and Clause 5 after Clause 3 Article 198 as follows:

          "4. Organizations or individuals who are defendants in infringement lawsuits on intellectual property rights, if found by the Court to not have committed acts of infringement, may request the Court to order the plaintiff to pay them reasonable costs for hiring lawyers or other expenses as stipulated by law."

          5. Any organization or individual who abuses intellectual property protection procedures causing damage to other organizations or individuals shall allow the damaged organization or individual to request the Court to compel the abuser to compensate for the damages caused by such abuse, including reasonable costs for hiring a lawyer. The act of abusing intellectual property protection procedures includes intentionally exceeding the scope or purpose of such procedures.

          11. Amend and supplement Clause 1 of Article 205 as follows:

          “1. In cases where the plaintiff proves that the infringement of intellectual property rights has caused tangible losses to themselves, they have the right to request the Court to determine the amount of compensation based on one of the following grounds:

      a) The total tangible loss calculated in money plus the profit earned by the defendant from carrying out the infringement of intellectual property rights, if the reduction in profit suffered by the plaintiff has not been included in the total tangible loss;

      b) The transfer price of the object of intellectual property usage, assuming the defendant had transferred the usage rights of the object to the plaintiff according to an intellectual property usage contract within the scope corresponding to the infringement committed;

          c) Tangible losses calculated in other ways proposed by the intellectual property rights holder in accordance with the provisions of the law;

          d) In cases where it is impossible to determine the amount of compensation for tangible losses based on the grounds specified in points a, b, and c of this clause, the amount of compensation for tangible losses shall be determined by the Court depending on the extent of the damage, but not exceeding five hundred million dong.”

          12. Amend and supplement Clause 1 of Article 218 as follows:

          “1. When the person requesting a temporary suspension of customs procedures has fulfilled all obligations prescribed in Article 217 of this Law, the customs authority shall issue a decision to temporarily suspend customs procedures for the consignment. The customs authority shall provide the intellectual property rights holder with information about the name and address of the sender; exporter, recipient, or importer; description of goods; quantity of goods; country of origin of the goods, if known, within thirty days from the date of applying administrative measures to handle counterfeit goods and illegally copied goods in accordance with Clause 4 of Article 216 of this Law.”

          Article 3. Effectiveness

          1. This Law takes effect from November 1, 2019, except for the cases provided for in Clause 4 of this Article.

          2. Supplement Item 32a after Item 32 of Appendix 4 of the List of Industries and Businesses Subject to Conditions for Investment under Law on Investment No. 67/2014/QH13 which has been amended and supplemented by Laws No. 90/2015/QH13, No. 03/2016/QH14, No. 04/2017/QH14, and No. 28/2018/QH14 as follows:

          “32a. Insurance auxiliary services include insurance advisory services, risk assessment services, insurance calculation services, insurance loss appraisal services, and assistance in resolving insurance compensation claims.”

      3. New insurance auxiliary services arising in insurance business operations shall be regulated by the Government and must obtain the consent of the Standing Committee of the National Assembly before promulgation.

          4. The provisions on intellectual property in this Law take effect from January 14, 2019, in the following cases:

          a) Industrial property registration applications filed from January 14, 2019;

          b) Requests to revoke the validity of patents, utility models, and geographical indication certificates issued based on industrial property registration applications filed from January 14, 2019;

          c) Requests to terminate the validity of trademark registration certificates implemented from January 14, 2019;

          d) Intellectual property infringement lawsuits accepted by competent authorities from January 14, 2019; other requests for intellectual property protection implemented from January 14, 2019.

          Article 4. Transitional Provisions

          1. Within one year from the date this Law takes effect, individuals and organizations providing insurance auxiliary services prior to the effective date of this Law must meet the conditions for providing insurance auxiliary services as stipulated in this Law. If they fail to meet these conditions within the time limit specified in this clause, they may not continue to provide insurance auxiliary services until they meet all the required conditions.

          2. Patent and geographical indication registration applications submitted before January 14, 2019, will continue to be processed in accordance with the provisions of the Intellectual Property Law No. 50/2005/QH11 which has been amended and supplemented by Law No. 36/2009/QH12.

          3. Trademark usage contracts signed between parties but not registered with the competent state management agency for industrial property rights before January 14, 2019, shall only have legal validity for third parties from January 14, 2019.

          4. Intellectual property infringement lawsuits accepted by competent authorities before January 14, 2019, but not yet resolved, shall continue to apply the provisions of the Intellectual Property Law No. 50/2005/QH11 which has been amended and supplemented by Law No. 36/2009/QH12 for resolution.

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