LAO REFORMS INTELLECTUAL PROPERTY REGIME
On May 25, 2018, the new Law on Intellectual Property No. 38/NA, dated November 15, 2017, also known as the “New IP Law”, was officially published on the electronic Lao official gazette. The New IP Law was effective 15 days after its publication and replaces the Law on Intellectual Property No. 01/NA, dated December 20, 2011.
The New IP Law aimed to provide the Lao government with a means to provide support for trade and investment, and the capacity to compete according to the rules and mechanisms of a modern market economy. This approach endeavours to move the country towards the ASEAN single market economy. Intellectual property protection system has become a real tool for economic development, trade and investment, and research and development of innovation. Additionally, local authorities wish to promote local products by means of trusted brands or labels, such as geographical indications, which would enable these products to penetrate foreign markets, and to provide further international exposure to Laos. The government also seeks to support the development of SMEs, which remain a priority for sustainable growth within the country. Hence, the New IP Law becomes part of the government’s plans to diversify its economy, which presently relies too much on natural resources.
CLARIFICATION ON PROCEDURES
The New IP Law provides more clarification on procedures such as administrative remedies, Customs recordal, etc. while focusing on specific issues of concern, such as online infringement, that the authorities are endeavoured to tackle in Laos. It contains various changes, such as:
- Trademark definition is expanded to non-traditional marks. Oppositions have been introduced with the intention to create an online publication system.
- The patent regime is largely unchanged except for an increased ability of the government to challenge patents contrary to public policy.
- Industrial designs now have an opposition procedure.
- Plant Variety provision are changed in line with the Union for the Protection of New Varieties of Plants (UPOV) Convention.
- Copyright protections are expanded especially in the context of digital broadcasts.
Formerly, the law on intellectual property provided that words (including personal names), letters, numerals, packaging of good, figurative elements, and combination of colours, as well as any combination of these items, could be registered as trademarks. The New IP Law now provides that 3D images and animated images can be registered as trademarks as well.
Previously, when a trademark owner registered his/her trademark, there was no publication procedure available to inform and allow interested third parties to file an opposition if they consider a mark to be confusingly similar to theirs. The only possibility was to file a cancellation request with the Department of Intellectual Property (DIP), once the trademark certificate was issued and the trademark was registered with the DIP. Previously, a cancellation action was only possible if initiated within 5 years as of the date of publication of the registered trademark in the official gazette.
With the New IP Law, a digital platform will be created and will publish and notify third parties of the submission of a new trademark application. Third parties can oppose the trademark registration within 60 days of the publication date. Publication will occur once the preliminary examination is successful. The preliminary examination will consider the minimum required documents, along with the official application form (official form, specimen, and receipt evidencing payment of any official fees).
In addition, the New IP Law provides that trademark registration will be valid for a period of 10 years from the filing date.
There are no major changes to the framework for patents and petty patent registrations. However, the Lao authorities seem to take a stricter approach with regard to patent or petty patents. Patents and petty patents that may pose a threat to the public order or good morals of society, or to public health or the environment, or to the stability of the country will be refused.
Similar to trademarks, it is now also possible to oppose the registration of patents or petty patents. Once the preliminary examination has been satisfied, third parties will be notified of the application filed with the DIP through publication and will have 90 days, as from the date of notification, to oppose to registration of the patent or petty patent.
There are no major amendments for industrial design. However, an opposition procedure is now in place. Once a preliminary examination has been satisfactorily completed, third parties will be notified that an application has been filed with the DIP, and will have 60 days, as from the date of publication, to oppose the registration of the industrial design or layout design of integrated circuits.
The New IP Law does not bring major changes; however, it is moving the Laos IP law close to a regulatory framework in line with international. Third parties are provided with fuller rights to protect their intellectual property rights through the New IP Law. Also, it is no surprise to see the importance given to new plant varieties, when we know that most of the Lao economy relies on the agriculture sector.
The Lao authorities have already anticipated regulations issued to support the smooth implementation of the New IP Law. As such, we understand that new plant varieties will be subject to another regulatory framework, which will be more technical and less general. Trademarks will also be under dedicated regulations, as will Customs later on.
It is important to note that administrative remedies will now be circumscribed to limited types of action, since they will only concern issues of registration regarding industrial property rights, new plant varieties, copyright, and related rights. This could signal a major shift in intellectual property strategies for intellectual property owners in Laos. Additionally, it could be that matters that were previously handled solely through the administrative remedy process may now be handled directly by the Lao People’s Court, which would bring another degree of legitimacy regarding judicial decisions on intellectual property rights in Laos. This will certainly be subject to further regulation in order to clarify these new responsibilities vested in the courts of Laos.
Besides that, there will be also a time of transition in order to have all the above provision in force, such as the opposition procedure, since this involves also the development of other infrastructure and the training of the officers to take into consideration these new processes.
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