ABSTRACT
This study aims to understand the role of collective organizations in the construction, management and development of geographical indications (GIs) in Vietnam through documentary research and in-depth interviews. The research results show that Vietnam has regulations on the establishment of protection rights for GIs, and regulations on GIs owners. However, specific regulations on the roles and responsibilities of state management agencies, collective organizations, and entities authorized to use GIs have not yet been reflected in the legal system. In addition, the study also shows that the role of collective organizations in the process of building, managing and developing GIs is limited, mainly at the level of supporting participation. On the basis of the findings, recommendations on management and supporting policies to promote the role of organizations in building, managing and developing GIs are also mentioned in this study.
Keywords: Geographical indications, collective organizations, community properties.
INTRODUCTION
In the context of today’s globalization, the advantages of geographical indications (GIs) and their investments are being paid much attention by many countries. Products bearing GIs not only contain physical advantages but also include cultural elements to make them unique products with regional or even national characteristics. On the one hand, GIs enhance commercial and economic benefits, and add local values of the environment, culture and tradition to the products. On the other hand, products bearing GIs inherently contain the characteristics of a brand, having a great impact on the supply chain of products and services in an area, thereby promoting business development and improving economic integration (Dao, 2017; Hoang et al., 2020)
In essence, GI products have the characteristics of a common resource, built on geographical conditions, including two factors: natural resources (specifically, natural factors such as climate, hydrology, geology, topography, ecosystems and other natural conditions specified in Clause 2, Article 82 of the 2005 Intellectual Property Law) and indigenous knowledge and production practices (humanitarian element). Therefore, GI is the common intellectual property of the community of product producers associated with the respective geographical area because it has its own characteristics associated with the geographical area and is the crystallization of traditions and customs (NOIP, 2021). Therefore, all construction, management and development activities should be carried out on the basis of the community's asset management platform.
In Vietnam, appellations of origin of goods are protected under the Ordinance on Protection of Industrial Property dated January 28, 1989 of the State Council. Six years later, the appellation of origin of goods was determined as one of the industrial property objects protected by the state in the Civil Code 1995. This has historical significance, because before that, the system of Vietnam's intellectual property rights protection mainly operated based on sub-law documents and had many inappropriate points (NOIP, 2006). In 2000, the concept of GI was officially used in the system of national legal documents under Decree No. 54/2000/ND-CP. Since 2005, the strategy to support the development of GIs has been concretized in the Prime Minister's Decision No. 68/2005/QD-TTg approving the Program 68 to support the development of intellectual property of enterprises. Since then, many policies, programs and solutions to support GI development have been developed and put into practice from central to local levels. By the end of December 2020, Vietnam has protected 101 GIs, including 94 Vietnamese GIs and 7 foreign GIs (NOIP, 2021).
Currently, in addition to the regulations on establishing protection rights for GIs, there are still no specific regulations on the organizational model of GI management. In addition, the role of collective organizations in the process of building, managing and developing GIs has not been specifically mentioned in the policies. This study will analyze and clarify the role of collective organizations in the stages of formation and development of GIs in Vietnam. On that basis, recommendations will be proposed to contribute to promoting the construction, management and development of GIs in Vietnam.
RESEARCH METHODOLOGY
The study mainly uses desk research and expert interviews to learn about the role of collective organizations in the construction, management and development of GIs in Vietnam. The research has synthesized and analyzed Vietnam's policies related to GIs, including the Law on Intellectual Property (IP), Government decrees, circulars of the Ministry of Science and Technology (Science and Technology), guidelines of National Office of Intellectual Property (NOIP) as well as other relevant documents and studies. At the same time, the study also conducted a number of in-depth interviews with 5 experts working in the field of IP who have implemented programs/projects related to the construction, management and development of GIs in the localities.
RESEARCH RESULTS AND DISCUSSION
The concept of Geographical Indications
According to Decree No. 54/2000/ND-CP, GIs are defined similarly to appellations of origin, but include a broader concept. It is information to indicate the geographical origin of goods not only as a name, but also as a sign, symbol or image. As a rule, these are two different objects of protection. In case the GI is the same as the appellation of origin of goods, the same protection is applied to the appellation of origin. In this period, the provisions of the law are not consistent, which makes it difficult to distinguish the two terms GI and appellation of origin (Dang, 2018). Actual implementation shows that, before 2005, no GIs were protected, only 2 appellations of origin of products were protected in 2001. By 2005, the IP Law was promulgated, the appellation of origin concept was canceled, and using only the geographical indication (GI) for product protection. In this new IP Law, Vietnam has introduced the definition of GIs as in Article 22 of the Agreement on Trade-Related Aspects of Intellectual Property Rights -TRIPS Agreement (WTO, 1994). Accordingly, GI is defined as “a sign used to indicate a product originating from a specific region, locality, territory or country” (Article 4 of the IP Law, 2005).
According to Article 79 of the IP Law 2005, a GI is protected if it fully meets two criteria: (i) The product bearing the GI has geographical origin from the region, locality, territory or country corresponding to the GI; and (ii) Products bearing a GI whose reputation, quality or characteristics are mainly determined by the geographical conditions of the region, locality, territory or country corresponding to that GI. For these reasons, “A description of the characteristics, particular quality, reputation of the product bearing the GI and the characteristic factors of natural conditions that create the characteristic, characteristic quality and reputation of the product” is a mandatory document and the most important document in the application for registration of establishing GI rights. Accordingly, Clause 2, Article 106 of the 2005 Intellectual Property Law stipulates that a Description of Specific Properties must contain the following contents: (i) Description of local and stable production and processing methods; and (ii) Information on the relationship between the specific nature, quality or reputation of the product and geographical conditions. Thus, indicating the relationship between the specific nature, quality or reputation of the product and the geographical conditions is a mandatory condition when registering for GI protection.
State regulation and management of Geographical Indications
Currently, legal documents do not clearly distinguish between state management and asset management for GIs. Specifically: Article 10 of the 2005 IP Law provides for state management, including the promulgation and organization of implementation of legal documents on IP and handling of violations of the law on IP. At the same time, the responsibility for state management of IP is determined to be the People's Committees of all levels according to the provisions of Article 11. This responsibility is specified in Article 3 of Decree 103/2006/ND-CP in the content of GI management, and is belonging to the locality, including place names and other signs indicating the geographical origin of local specialties.
Meanwhile, Article 88 of the 2005 IP Law on the right to register states that “…The State allows organizations and individuals to produce products bearing geographical indications, representative collective organizations or management agencies. The administrative management of the locality where the GI is located shall exercise the right to register the GI”. In addition, the owner of an industrial property object specified in Article 121 of the 2005 IP Law is the State or an organization representing the interests of organizations and individuals that have been granted the right to use GIs by the State. The geographical indication management organization is allowed to exercise the rights of the owner to the geographical indication specified in Clause 2, Article 123, Article 198 of the IP Law 2005. Thus, in the current legal provisions, there are shortcomings when there is no clear distinction between state management and asset management for GIs.
The role of collective organizations in the construction, management and development of geographical indications
International experiences
In Europe, collective organizations play an important role in the construction, management and development of GIs. According to the regulations of the European Union (EU), the registration of GIs must be done by an organization that works with the products to be protected (Article 49 of Regulation 1151/2012) (EU, 2012). These organizations are often professional associations-collective organizations representing manufacturers, processors, and product servicers. These organizations carry out registration, internal management, and development of GIs. Accordingly, these organizations are responsible for: (i) Ensuring the quality and reputation of the product; (ii) Taking measures to protect the reputation of the product; (iii) Implement information and product promotion activities; (iv) Take measures to improve the effectiveness of the protection mechanism; and (v) Propose initiatives to enhance product value (Clause 1, Article 45 of Regulation 1151/2012). Member States may encourage the formation and operation of such organizations in their territories by administrative measures (Clause 2, Article 45 of Regulation 1151/2012). External control will be carried out by independent certification bodies (like the current VietGap certification bodies in Vietnam). These certification bodies will sign contracts with professional associations, the costs will be paid by the professional associations (which can be allocated to industry actors). Because they benefit from the management and development of GIs themselves, these collective organizations are also the "most enthusiastic" in optimizing the use of this tool. In France, for example, collective organizations are known as ODGs (Organizations for Protection and Management). This is the organization that brings together all actors, including manufacturers, primary processors and processors of products. ODGs must ensure “representation of actors and an equal degree of representation of different actors” (Article l642-18 Ordinance 256-1547 2006) (French Government, 2006). Accordingly, ODGs are responsible for submitting GI registration documents, developing and implementing internal control measures for GIs, and promoting GIs (Article l642-18 of Ordinance 256-1547 2006). External control by the Directorate General for Competition, Consumer and Commercial Fraud (DGCCRF) and independent certification bodies (OCs) or an inspection body designated by the collective body but under the consent of the French National Institute of Origin and Quality (INAO) - the agency that issues GIs.
In other countries that are not part of the European Union, such as Switzerland, collective organizations also play a central role in the construction, management and development of GIs. In Switzerland, the registration of GIs must be submitted by the organization representing the product (Article 5 of the Ordinance on Appellations of Origin and GI 1997) (Swiss Government,1997). This organization is considered representative if: (i) The members of the organization produce or process at least half of the total output; (ii) At least 60% of manufacturers, 60% of processors and 60% of finishers are members; and (iii) Operate according to democratic principles. Internal control of GI products is carried out by a collective organization, external control by an independent certification body and is subject to annual supervision by the Federal Agricultural Service (Article 21 Ordinance 21) on appellations of origin and GIs in 1997 (Swiss Government, 1997).
In some other countries in Asia, collective organizations also play an important role in the formation and development of GIs. In Indonesia, the entities that can apply for a GI registration include the organization representing the producers of products bearing the GI or the local administrative authority where the GI is located (Article 53 of the 2016 Trademark and GI Law) (Republic of Indonesia, 2016). Similarly, in Japan, applicants for GI registration must be collective organizations representing the community of producing, processing and trading products. This leads to the fact that when registering for GI protection for Luc Ngan lychee (Bac Giang) in Japan, the applicant now has to change from the Department of Science and Technology of Bac Giang province (when registering for protection of GIs in the country) to the Product Association, production and consumption of Luc Ngan litchi.
Vietnam's experiences
"Collective organizations" in Vietnam within the scope of this study are understood as organizations working directly with products bearing GIs. Collective organizations can be divided into two groups: (i) groups having legal status including: cooperatives, unions of cooperatives, associations, etc. of manufacturers and traders of products bearing GIs. These organizations were established according to the Government's regulations on organization, operation and management of associations (Decree No. 45/2010/ND-CP 2010; amended and supplemented according to Decree No. 33/2012/ ND-CP 2012) and the Law on Cooperatives; and (ii) groups without legal status including: cooperative groups, hobby clubs, production association groups, etc. That is, these organizations do not meet the criteria of Article 74 of the Civil Code 2015 (established in accordance with regulations; has an organizational structure according to regulations; has independent assets and is responsible for its own assets; independently participates in legal relations in his name).
Based on the process approach, the construction, management and development of GIs is divided into 3 phases: (a) the stage of establishing the protection rights to the GI; (b) the stage of building a legal basis and implementing a system of tools for GI management; and (c) the stage of commercial promotion and development for GIs. The role of the Vietnamese collective organizations is shown in each stage as follows:
a) The stage of establishing the protection rights for GIs
This stage is to develop and submit the registration dossiers for GI protection. Currently, according to regulations, the owner of GIs in Vietnam is the State (Article 121 of the 2005 IP Law). In addition, Article 88 of the 2005 Intellectual Property Law also defines the right to register GIs of Vietnam as belonging to the State. According to the law, organizations and individuals producing products are allowed to carry GIs and have the right to register GIs, those who exercise the right to register GIs will not become the owners of that GI. Referring to this issue, the report of the National Office of Intellectual Property (2021) said that GIs are the common intellectual property of the community associated with the respective geographical area, so the state should perform the regulatory role and a collaborator but should not be the owner in order to ensure the harmony of interests and fairness in the construction, registration and management of GIs (NOIP, 2021).
Currently, the establishment of GI protection rights in Vietnam is being carried out in the direction of a top-down approach (Pick B. et al., 2017). Accordingly, based on the guidelines of the central government, localities develop programs to support the development of local intellectual property, including the protection of GIs. The agency assigned the task is usually the Department of Science and Technology. The state agency can be the lead agency, with the support of research and consulting units or the governing body. However, the majority of protected GIs are registered and managed by organizations belonging to the local government system. The participation of manufacturers, businesses, associations of product manufacturers and traders in the process of building and developing GIs is still limited (NOIP, 2020). Currently, the participation of people, businesses and collective organizations (associations, cooperatives, etc.) is mainly coordinated, they mainly only participate in seminars and conferences to collect opinions on samples, trademarks, rules, and regulations. This practice is very different from the European Union (EU) approach to collective and community organizations. This fact can be explained by three reasons: First, due to the complexity of GI registration dossiers, it is difficult for collective organizations to have the capacity to build a set of dossiers to establish rights, especially demonstrate the correlation between the characteristics, specific quality and reputation of the product with the characteristic elements of natural conditions that create the specific properties, quality, and reputation of the product. Second, the budget for the activity of establishing rights is relatively large, ranging from US$10,870-13,044. If the costs for the construction, management, and development of GIs are included, the cost ranges from US$65,217-86,957. Therefore, it is difficult for collective organizations to have enough financial resources to implement. Third, many GIs are built for products without collective organizations. Some collective organizations are built at the same time or after GIs have been protected, or small-scale collective organizations (cooperatives, production groups) are not capable of implementing them.
However, because production practices are one of the important characteristics that create GIs, the lack of community participation can lead to people's traditional values and specific skills in the production process may be left open. This may lead to the management and development of GIs will not be as expected.
b) The phase of building a legal basis and implementing a system of tools to serve the management of GIs
The current national legal document system has a number of related regulations on management models of GIs such as Article 121, Article 123, Article 198 of the 2005 Intellectual Property Law; Article 19 of the Decree 103/2006/ND-CP. However, these are general terms, regulations on GI owners or owners' rights. So far, in addition to stipulating the content of establishing the protection rights for GIs, there are currently no specific documents on the organizational model of GI management including: roles and responsibilities of regulatory agencies, countries, collective organizations; entities entitled to use GIs; and content, methods and tools for managing and developing GIs. Currently, models of GI management, use and development are built depending on the approach of each locality, issued by the People's Committee of the province/city or an authorized agency (Department of Science and Technology, District People's Committee, etc.). Depending on the approach of each locality, these documents are also very diverse.
If considering the subject performing the function as a GI management organization, out of 101 GIs protected by the end of December 2020, there are 94 GIs of Vietnam, of which only 2 GIs have collective organization (Professional Associations) being authorized to act as the GI management organization, which is Hue GI for conical hats and Melaleuca essential oil products of Thua Thien Hue province. According to the results of expert consultation, GIs with the participation of professional associations in coordination in management only account for about one third of GIs. The participation of the cooperative only plays the role of internal control of its members in the process of using GIs.
Currently, Vietnam has three models in the form of the subject performing the function as a GI management organization, including: (i) the state agency is the subject performing the function as a management organization and without participation of collective organizations; (ii) a state agency is a subject performing the function of a management organization and with the participation and support of collective organizations; (iii) the collective organization is the subject performing the function as a management organization and the state management agencies participate in the role of supporting and performing the state management function.
- The management model of GIs is managed by the state agency as the only entity performing the function as an organization, without supports of other collective organizations. Some GIs are applying this model such as: Vinh GI for orange products, Phu Yen GI for cotton lobster, etc. Accordingly, the role of GI management is usually assigned by the People's Committee of the province/city to the Department of Science and Technology as leader. There are also collaborations in the management work of the Departments of Agriculture and Rural Development and the Department of Industry and Trade, etc.
Regarding GI control activities, this model is divided into internal control and external control. Accordingly, internal control is controlled by organizations and individuals that are granted the right to use GIs. External control is assigned to state agencies to perform, depending on the functions and tasks of each agency. The agency assigned to control is also quite diverse, usually the subordinate units under the management of the GI management agency.
However, the problem is that the resources of state agencies are limited, especially human resources are limited, so the control (including product origin, compliance with technical production processes) of GI products, the quality of GI products, the use of GI label templates for a large number of holders who are granted the right to use GIs are still relatively difficult, which leads to a lack of effective control.
- The GI management model is managed by a state agency as an organization and with the participation and support of collective organizations. Some GIs are applying this model such as: GI of Buon Ma Thuot for coffee products, Dai Hoang GI for banana products, Binh Thuan GI for dragon fruit products, etc. Accordingly, the management agencies of the state (Department of Science and Technology, District People's Committee) play the role of management organization, and collective organizations play a supporting role. The role of these collective organizations is usually specified in the Regulation on management and use of GIs issued by the Provincial People's Committee. If classified according to the role of a collective organization, it can be divided into:
- Collective organizations only perform internal management of the use of GIs for their members. Some GIs are applying this form such as: Dai Hoang GI for banana products, Ninh Thuan GI for grape products, Cao Bang GI for bamboo products and bamboo mats, etc.… In these cases, the state agencies play the role of managers (DOST, District people committee) and the collective organizations are assigned the task of internal management of its members. Practical implementation shows that the content of internal management is also different in different GIs. If Dai Hoang GI for banana products requires collective organizations to develop internal management regulations including the following contents: production process; mechanism for inspecting and supervising production, business and use of stamps and labels; regulations on management to ensure traceability; and to reward and handle violations. For the Cao Bang GI for bamboo products and bamboo mats, the regulation on management and use only stipulates the content of internal control.
- The collective organization performs two tasks: (i) internally manages the use of GIs for its members; and (ii) plays the role of appraising and certifying the application for a GI certificate of members. Some GIs are applying this model such as: Phu Quoc GI for fish sauce products, Buon Ma Thuot GI for coffee products, Binh Thuan GI for dragon fruit products, etc. Accordingly, in addition to controlling internally with members, these organizations will also be in charge of evaluating and appraising the members' registration dossiers for granting the right to use GIs, then submitting them to the management organization for decision making. In this form, collective organizations are assigned more responsibilities, the role of state management agencies is significantly reduced.
Thus, in this model, the collective organization, specifically the Professional Association, only plays the supporting role, performing the internal control function and/or playing the role of appraising and validating the application file, and issuing certificates of use rights of members. The problem is that internal control activities are a level of control (self-control, internal control, external control). This is a requirement in the regulation on management and use of GIs. However, there is still no document guiding the implementation of internal management of GIs for collective organizations. Therefore, each organization builds its internal management in a different way based on the knowledge and resources of the organization. At the same time, despite stipulating the role of a collective organization in internal control activities, this organization does not have the function of handling violations, that is, it does not have the right to revoke the right to use GIs. This leads to the fact that the actual role of these organizations in GI control is often not high. In addition, in the regulations on management and use of GIs, the coordination between external agencies and collective organizations can only be in the form of a general principle, that is, a collective organization is responsible for coordinating with external control of state agencies to carry out GI management for members in theory, but there is no realistic plan to coordinate in the practice. This leads to the weak coordination between these two levels of control, and the effectiveness of the GI use of the relevant entities is not high (Bui and Nguyen, 2020).
In addition, because GIs are community property, all individuals and organizations that meet the requirements for records and product quality have the right to use them, regardless of whether they are members of the organization, collective or not. This leads to unfair control. That is, members of a collective organization are subject to two levels of control (external control and internal control) while other subjects are only subject to external control. To address this inequity, a number of solutions have also been proposed, such as Cao Bang GI for bamboo products and bamboo mats that stipulate that a member of a collective organization must be a member of a collective organization to be granted the right to use GIs. However, this approach has problems that need to be considered, that is, GIs are the property of the community, and participating in collective organizations or not is the right of organizations and individuals. Meanwhile, the GI of Binh Phuoc for cashew products is using a different approach. That is for members not belonging to the Binh Phuoc Articles Association, the contract between the applicant and the Binh Phuoc Articles Association on the use of the internal control service of the Binh Phuoc Articles Association is a mandatory component of the application when registering to use the article. use CDL.
- The GI management model is participated by the collective organization as the subject performing the function as the management organization and the state management agencies participating in the role of supporting and performing the state management function. Currently, there are only two GIs of Thua Thien Hue province that are applying this model, namely Hue GI for conical cones and for cajeput essential oil products. Accordingly, the collective organization (Association) is authorized to act on behalf of the Provincial People's Committee to perform the function as the GI management organization. State agencies participate as support and exercise control according to the state management function. Accordingly, the Provincial People's Committee only regulates the general framework. Based on this regulation, the Association promulgates a detailed control plan, order, and procedure. This is a new point in the work for people to manage and develop their own products, the State is only for orientation and support, does not directly interfere in the production / business of enterprises, and does not change as before. However, in this model, there are still problems to discuss and overcome such as: the Association was established along with the project construction process, so it is still very young; the working process as well as the organizational apparatus has not been fully consolidated; the majority of members are testers (both participating in the production organization at the unit and participating in the Association's work); the financial source to maintain the operation of the organization is not available and unstable; and the organizations have not enough experience in GI management and development, etc.
c) Stage of promotion and commercial development for GIs
Currently, the content of activities to promote and develop products bearing GIs is proposed and mentioned in the Regulations on management and use of GIs. Accordingly, the promotion and commercial development of GIs is often assigned to state agencies in association with the functions and tasks of these organizations (Department of Industry and Trade, Department of Culture, Sports and Tourism, etc.). Accordingly, these units have the task of guiding and supporting organizations and individuals to exploit the domestic and export markets; assume the prime responsibility for organizing propaganda and promotion activities; trade promotion, introduction of GIs. Meanwhile, collective organizations are assigned the responsibility to actively coordinate with functional agencies in promoting and developing commercial products. However, these are all general provisions, with the nature of assignment of duties as the main one.
DISCUSSION AND RECOMMENDATIONS
Currently, the GI management model in Vietnam has many points that are not suitable for capacity and operation. The state still plays a major role in the construction, management and development of GIs, the role of collective organizations is still fuzzy. In the types of collective organizations, only professional associations are present, but participation is still very limited. The Association's participation mainly stops at internal control, use of GIs by members of the Association and/or assisting state agencies in the process of receiving and appraising registration dossiers for use of GIs by organizations and individuals.
Experience in Vietnam shows that many GIs are "suspended" due to the lack of the role of the real private owner and the organization of the GI beneficiaries. Therefore, it is necessary to change the approach towards collective organizations centered in the model of building, managing and developing GIs. The state should only play the role of promoting, supporting (including supporting the establishment, management, development) and external supervision to ensure fairness, because GIs are the common property of communities in the geographical location of the product, and are not owned by any organization/individual. However, because the capacity of each type of collective organization is different, it is necessary to consider what type of collective organization can take on the role of GI management and what conditions are needed for these organizations to effectively exploit GIs.
For collective organizations, it is a cooperative/union of cooperatives. Over the past, the State has issued many policies to promote the establishment of cooperatives/unions of cooperatives and support solutions for these organizations to promote their role as one of the four key economic sectors of Vietnam. This is the type of organization that works directly with products, participates directly in the market, as well as benefits from the good management and exploitation of values from GIs. Therefore, these organizations are suitable to act as GI management organizations. However, it should be noted that cooperatives mainly operate on a small scale (village/communal) while the geographical area corresponding to GI products is often on a large scale (several communes within a district, inter-district) in a province/city), so it is difficult for cooperatives to have enough capacity (financial, human resources, understanding of IP asset management in general and GIs in particular) to manage a large area. Therefore, it is advisable to form cooperatives at commune or district level, to link and consolidate these collective organizations on a larger scale in the form of cooperative unions. These cooperative unions will act as GI management organizations.
For organizations, it is a Professional Association This is an organization that brings together production and business organizations and individuals that work directly with products. However, because these organizations are nonprofit organizations, the main source of income comes from the contributions of their members, and there is no revenue from production and business activities. This leads to difficulties in management, control and development of GIs. Therefore, in order to ensure the effective operation of the Association/Union of Associations, certain support from the State is required so that these organizations can maintain their operation. In addition, businesses and individuals with prestige and management and commercial qualifications, as well as enthusiasm and willingness to join the Association's executive committee, should be encouraged. At the same time, in order for the Association/Union of Associations to really promote its role as a representative of product manufacturers and traders, it is necessary to limit the intervention of the State in the organization's leadership.
On the basis of the analyzed contents, a number of recommendations to ensure effective and sustainable GI construction, management and development are proposed as follows:
- First, it is necessary to develop and issue guidelines on the management and control of GIs. Up to now, these activities have not been specified in legal documents. This not only creates open conditions for localities to apply their initiatives in management, use, exploitation and development of GIs, but also creates difficulties for localities in the implementation process. Experience from the European Union in the protection of GIs shows that GIs are not an effective and easily successful model without strict quality control measures (Nguyen, 2016). Therefore, it is necessary to develop implementation guidelines, especially those on the control of GIs after they have been protected, for localities to implement on the basis of creative application.
- Second, GI management activities should be carried out on the principle of close cooperation between the State and the community. It is necessary to create a clear legal basis for the community to jointly manage, use and dispose of according to agreement or custom. GIs need to be built on the basis of two main management entities, the State and the collective organization, in a simple and feasible manner, ensuring that it does not exceed the adaptability conditions of enterprises and producing households. At the same time, the building of a GI management model should be based on promoting the role of collective organizations and leading enterprises. The role of collective organizations in developing policy frameworks and management techniques for GIs needs to be more empowered to create community consensus and promote the value of traditions and skills. Empowering the collective organization also contributes to improving supervision and reducing the burden on state management agencies. Accordingly, it is necessary to create conditions for people to self-manage and develop their own products, the State is only oriented and supportive, the State does not participate, does not act as before.
- Third, the process of forming GIs should go hand in hand with supporting the establishment, consolidating the whole machine, and improving the capacity of collective organizations so that these organizations can have enough capacity to play the role of GI management. International experience, especially in Europe, shows that, in order to promote the advantages of GIs, the management and development of these GIs must have the participation of a strong enough collective, representing both producers and commercials. Accordingly, these collective organizations will play a pivotal role in controlling product quality, promoting and developing trade, and maintaining links between members. Only when members are willing to adopt a technical process and compliance with that process is closely monitored are they eligible to apply.
It is a reality that for many GIs, the collective organizations that work directly with GI products are relatively small in scale (cooperatives, cooperative groups). Many newly established organizations are still small, organization has not yet been perfected, and resources are limited (especially human and financial). Even after its establishment, resources to maintain regular operations become the main difficulty to maintain operations after the end of the subject or project. Therefore, there should be policies to support the establishment, as well as preferential policies (land, credit, science and technology, etc.) for these collective organizations. At the same time, it is necessary to have policies to support development and capacity building on a continuous and regular basis for collective organizations, especially skills in management, financial management, production organization and development. market development.
- Fourth, it is necessary to develop a Regulation on the management and use of GIs in a transparent and open manner to ensure the interests of individuals involved in producing, processing and trading. Accordingly, the activities of collective organizations must have the principle of "openness" to the participation of organizations and individuals. Regulations on becoming a member of a collective organization need to be the most common conditions of the community, not forming particular conditions to prevent the participation of the majority of members in the community. However, it is necessary to limit the expansion of too many members to ensure the management capacity of the organization. This does not mean to limit the size of the collective organization, but rather to build a collective organization with a size and scope consistent with management capacity.
- Fifth, in the context that Vietnam has signed many new-generation free trade agreements, this is both an opportunity but also a big challenge for Vietnamese businesses. Currently, there are 39 Vietnamese GIs protected in Europe right after the EVFTA Agreement was signed (EU, 2020), however, there are still significant challenges for Vietnamese GIs to be able to export to this market including strict technical barriers and non-tariff trade remedies. Therefore, there should be support and guidance for collective organizations, businesses, especially small and medium enterprises, on how to find and evaluate the potential market for their products in the target market, information related to tariffs and tax incentives and regulations, standards and requirements for imported goods, rules of origin, C/O, and competitors.
- Sixth, GIs need to be valued through signs. From the experience of Europe shows that, products originating from the European Union are commercialized as a protected appellation of origin or protected GIs, the symbols of the European Union will appear on product labels (EU, 2012). Other countries such as Indonesia, Japan, Thailand, etc. also have national GI logos. Therefore, Vietnam should develop a national GI logo, which can be used simultaneously with GI logos of each product to increase awareness in the market, especially when exporting to international markets. At the same time, it is necessary to strengthen the information and promotion of products, in which: (i) Emphasize the specific properties of the method of product production; and (ii) Widely promote the uniqueness of the protected GI and its traditional characteristics.
CONCLUSION
Currently, in addition to the content regulations on establishing protection rights for GIs, Vietnam still lacks specific regulations on the organization of GI management, and the management, use and development of GIs. Models of management, use and development of GIs are being built depending on the approach of each locality. The management of GIs is mainly carried out by state agencies. The participation of collective organizations is still relatively weak, mainly in supporting roles. The management and exploitation of the value of GIs are still limited due to the lack of roles of the private and institutional owners of GIs.
In order to ensure effective management and use of GIs, the study suggests that it is necessary to give more rights and responsibilities to collective organizations, especially cooperatives/union of cooperatives, Associations/Union of Associations in their role as a GI management organization under Clause 2, Article 123 of the IP Law 2005. This contributes to improving supervision and reducing the burden on state management agencies. To achieve this, the State needs to have policies to support the establishment, development and capacity building on a continuous and regular basis for collective organizations, especially in management skills and financial management, production organization and market development. In addition, on the basis of the analysis, the study also proposes a number of recommendations to policy makers to improve the efficiency of GI management and development in Vietnam.
REFERENCES
Bui Thi Hang Nga & Nguyen Minh Bach Tung (2020). Protection of geographical indications: requirements of sustainable agricultural development. Journal of Legislative Studies, 17(417).
French Government (2006). Decree No. 2006-1547 dated December 7, 2006 on raising the value of agricultural, forestry and fishery products. https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006071367.
Swiss Government (1997). Decree of May 28, 1997 on the protection of appellations of origin and geographical indications as agricultural and processed agricultural products. https://wipolex.wipo.int/en/text/219896.
National Office of Intellectual Property NOIP (2006). Annual Report on Intellectual Property Activity 2005. Hanoi, Vietnam.
National Office of Intellectual Property NOIP (2020). Annual report on intellectual property activities 2019. Hanoi, Vietnam.
National Office of Intellectual Property NOIP (2021). Annual report on intellectual property activities 2020. Hanoi, Vietnam.
Dang Cong Nhat Thuan (2018). Protection of industrial property rights for geographical indications meeting the requirements of the Vietnam - EU Free Trade Agreement (EVFTA) [Master's Thesis, University of Law (Hue University)]. Thua Thien Hue, Vietnam.
Dao Duc Huan (2017). Management of geographical indications for agricultural products of Vietnam [PhD Thesis, National Economics University]. Hanoi, Vietnam.
Hoang, G., Le, HTT, Nguyen, AH, & Dao, QMT (2020). The impact of geographical indications on sustainable rural development: A case study of the Vietnamese Cao Phong orange. Sustainability, 12(11), 4711. https://doi.org/https://www.doi.org/10.3390/su12114711
Nguyen Thi Phuong Thao (2016). Building an independent control system to manage geographical indications of Vietnam [Master's Thesis, University of Social Sciences and Humanities (Vietnam National University, Hanoi)]. Hanoi, Vietnam.
Pick, B., Marie-Vivien, D., & Kim, DB (2017). The Use of Geographical Indications in Vietnam: A Promising Tool for Socioeconomic Development? In I. Calboli & WL Ng-Loy (Eds.), Geographical Indications at the Crossroads of Trade, Development, and Culture: Focus on Asia-Pacific (pp. 305-332). Cambridge University Press. https://doi.org/https://doi.org/10.1017/9781316711002.014
The Council of the European Union (2020). COUNCIL DECISION (EU) 2019/753 of 30 March 2020 on the conclusion of the Free Trade Agreement between the European Union and the Socialist Republic of Vietnam. http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437
The European Parliament and the Council of the European Union (2012). Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012R1151
The Republic of Indonesia (2016). Law of the Republic of Indonesia Number 20 of 2016 on Marks and Geographical Indications. https://internationalipcooperation.eu/sites/default/files/arise-docs/2019/Indonesia_Law-on-Marks-and-Geographical-Indications-20-2016.pdf
WTO (1994). Agreement on trade-related aspects of intellectual property rights. https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
The Collective Organizations Role in the Management and Development of Geographical Indication in Vietnam
ABSTRACT
This study aims to understand the role of collective organizations in the construction, management and development of geographical indications (GIs) in Vietnam through documentary research and in-depth interviews. The research results show that Vietnam has regulations on the establishment of protection rights for GIs, and regulations on GIs owners. However, specific regulations on the roles and responsibilities of state management agencies, collective organizations, and entities authorized to use GIs have not yet been reflected in the legal system. In addition, the study also shows that the role of collective organizations in the process of building, managing and developing GIs is limited, mainly at the level of supporting participation. On the basis of the findings, recommendations on management and supporting policies to promote the role of organizations in building, managing and developing GIs are also mentioned in this study.
Keywords: Geographical indications, collective organizations, community properties.
INTRODUCTION
In the context of today’s globalization, the advantages of geographical indications (GIs) and their investments are being paid much attention by many countries. Products bearing GIs not only contain physical advantages but also include cultural elements to make them unique products with regional or even national characteristics. On the one hand, GIs enhance commercial and economic benefits, and add local values of the environment, culture and tradition to the products. On the other hand, products bearing GIs inherently contain the characteristics of a brand, having a great impact on the supply chain of products and services in an area, thereby promoting business development and improving economic integration (Dao, 2017; Hoang et al., 2020)
In essence, GI products have the characteristics of a common resource, built on geographical conditions, including two factors: natural resources (specifically, natural factors such as climate, hydrology, geology, topography, ecosystems and other natural conditions specified in Clause 2, Article 82 of the 2005 Intellectual Property Law) and indigenous knowledge and production practices (humanitarian element). Therefore, GI is the common intellectual property of the community of product producers associated with the respective geographical area because it has its own characteristics associated with the geographical area and is the crystallization of traditions and customs (NOIP, 2021). Therefore, all construction, management and development activities should be carried out on the basis of the community's asset management platform.
In Vietnam, appellations of origin of goods are protected under the Ordinance on Protection of Industrial Property dated January 28, 1989 of the State Council. Six years later, the appellation of origin of goods was determined as one of the industrial property objects protected by the state in the Civil Code 1995. This has historical significance, because before that, the system of Vietnam's intellectual property rights protection mainly operated based on sub-law documents and had many inappropriate points (NOIP, 2006). In 2000, the concept of GI was officially used in the system of national legal documents under Decree No. 54/2000/ND-CP. Since 2005, the strategy to support the development of GIs has been concretized in the Prime Minister's Decision No. 68/2005/QD-TTg approving the Program 68 to support the development of intellectual property of enterprises. Since then, many policies, programs and solutions to support GI development have been developed and put into practice from central to local levels. By the end of December 2020, Vietnam has protected 101 GIs, including 94 Vietnamese GIs and 7 foreign GIs (NOIP, 2021).
Currently, in addition to the regulations on establishing protection rights for GIs, there are still no specific regulations on the organizational model of GI management. In addition, the role of collective organizations in the process of building, managing and developing GIs has not been specifically mentioned in the policies. This study will analyze and clarify the role of collective organizations in the stages of formation and development of GIs in Vietnam. On that basis, recommendations will be proposed to contribute to promoting the construction, management and development of GIs in Vietnam.
RESEARCH METHODOLOGY
The study mainly uses desk research and expert interviews to learn about the role of collective organizations in the construction, management and development of GIs in Vietnam. The research has synthesized and analyzed Vietnam's policies related to GIs, including the Law on Intellectual Property (IP), Government decrees, circulars of the Ministry of Science and Technology (Science and Technology), guidelines of National Office of Intellectual Property (NOIP) as well as other relevant documents and studies. At the same time, the study also conducted a number of in-depth interviews with 5 experts working in the field of IP who have implemented programs/projects related to the construction, management and development of GIs in the localities.
RESEARCH RESULTS AND DISCUSSION
The concept of Geographical Indications
According to Decree No. 54/2000/ND-CP, GIs are defined similarly to appellations of origin, but include a broader concept. It is information to indicate the geographical origin of goods not only as a name, but also as a sign, symbol or image. As a rule, these are two different objects of protection. In case the GI is the same as the appellation of origin of goods, the same protection is applied to the appellation of origin. In this period, the provisions of the law are not consistent, which makes it difficult to distinguish the two terms GI and appellation of origin (Dang, 2018). Actual implementation shows that, before 2005, no GIs were protected, only 2 appellations of origin of products were protected in 2001. By 2005, the IP Law was promulgated, the appellation of origin concept was canceled, and using only the geographical indication (GI) for product protection. In this new IP Law, Vietnam has introduced the definition of GIs as in Article 22 of the Agreement on Trade-Related Aspects of Intellectual Property Rights -TRIPS Agreement (WTO, 1994). Accordingly, GI is defined as “a sign used to indicate a product originating from a specific region, locality, territory or country” (Article 4 of the IP Law, 2005).
According to Article 79 of the IP Law 2005, a GI is protected if it fully meets two criteria: (i) The product bearing the GI has geographical origin from the region, locality, territory or country corresponding to the GI; and (ii) Products bearing a GI whose reputation, quality or characteristics are mainly determined by the geographical conditions of the region, locality, territory or country corresponding to that GI. For these reasons, “A description of the characteristics, particular quality, reputation of the product bearing the GI and the characteristic factors of natural conditions that create the characteristic, characteristic quality and reputation of the product” is a mandatory document and the most important document in the application for registration of establishing GI rights. Accordingly, Clause 2, Article 106 of the 2005 Intellectual Property Law stipulates that a Description of Specific Properties must contain the following contents: (i) Description of local and stable production and processing methods; and (ii) Information on the relationship between the specific nature, quality or reputation of the product and geographical conditions. Thus, indicating the relationship between the specific nature, quality or reputation of the product and the geographical conditions is a mandatory condition when registering for GI protection.
State regulation and management of Geographical Indications
Currently, legal documents do not clearly distinguish between state management and asset management for GIs. Specifically: Article 10 of the 2005 IP Law provides for state management, including the promulgation and organization of implementation of legal documents on IP and handling of violations of the law on IP. At the same time, the responsibility for state management of IP is determined to be the People's Committees of all levels according to the provisions of Article 11. This responsibility is specified in Article 3 of Decree 103/2006/ND-CP in the content of GI management, and is belonging to the locality, including place names and other signs indicating the geographical origin of local specialties.
Meanwhile, Article 88 of the 2005 IP Law on the right to register states that “…The State allows organizations and individuals to produce products bearing geographical indications, representative collective organizations or management agencies. The administrative management of the locality where the GI is located shall exercise the right to register the GI”. In addition, the owner of an industrial property object specified in Article 121 of the 2005 IP Law is the State or an organization representing the interests of organizations and individuals that have been granted the right to use GIs by the State. The geographical indication management organization is allowed to exercise the rights of the owner to the geographical indication specified in Clause 2, Article 123, Article 198 of the IP Law 2005. Thus, in the current legal provisions, there are shortcomings when there is no clear distinction between state management and asset management for GIs.
The role of collective organizations in the construction, management and development of geographical indications
International experiences
In Europe, collective organizations play an important role in the construction, management and development of GIs. According to the regulations of the European Union (EU), the registration of GIs must be done by an organization that works with the products to be protected (Article 49 of Regulation 1151/2012) (EU, 2012). These organizations are often professional associations-collective organizations representing manufacturers, processors, and product servicers. These organizations carry out registration, internal management, and development of GIs. Accordingly, these organizations are responsible for: (i) Ensuring the quality and reputation of the product; (ii) Taking measures to protect the reputation of the product; (iii) Implement information and product promotion activities; (iv) Take measures to improve the effectiveness of the protection mechanism; and (v) Propose initiatives to enhance product value (Clause 1, Article 45 of Regulation 1151/2012). Member States may encourage the formation and operation of such organizations in their territories by administrative measures (Clause 2, Article 45 of Regulation 1151/2012). External control will be carried out by independent certification bodies (like the current VietGap certification bodies in Vietnam). These certification bodies will sign contracts with professional associations, the costs will be paid by the professional associations (which can be allocated to industry actors). Because they benefit from the management and development of GIs themselves, these collective organizations are also the "most enthusiastic" in optimizing the use of this tool. In France, for example, collective organizations are known as ODGs (Organizations for Protection and Management). This is the organization that brings together all actors, including manufacturers, primary processors and processors of products. ODGs must ensure “representation of actors and an equal degree of representation of different actors” (Article l642-18 Ordinance 256-1547 2006) (French Government, 2006). Accordingly, ODGs are responsible for submitting GI registration documents, developing and implementing internal control measures for GIs, and promoting GIs (Article l642-18 of Ordinance 256-1547 2006). External control by the Directorate General for Competition, Consumer and Commercial Fraud (DGCCRF) and independent certification bodies (OCs) or an inspection body designated by the collective body but under the consent of the French National Institute of Origin and Quality (INAO) - the agency that issues GIs.
In other countries that are not part of the European Union, such as Switzerland, collective organizations also play a central role in the construction, management and development of GIs. In Switzerland, the registration of GIs must be submitted by the organization representing the product (Article 5 of the Ordinance on Appellations of Origin and GI 1997) (Swiss Government,1997). This organization is considered representative if: (i) The members of the organization produce or process at least half of the total output; (ii) At least 60% of manufacturers, 60% of processors and 60% of finishers are members; and (iii) Operate according to democratic principles. Internal control of GI products is carried out by a collective organization, external control by an independent certification body and is subject to annual supervision by the Federal Agricultural Service (Article 21 Ordinance 21) on appellations of origin and GIs in 1997 (Swiss Government, 1997).
In some other countries in Asia, collective organizations also play an important role in the formation and development of GIs. In Indonesia, the entities that can apply for a GI registration include the organization representing the producers of products bearing the GI or the local administrative authority where the GI is located (Article 53 of the 2016 Trademark and GI Law) (Republic of Indonesia, 2016). Similarly, in Japan, applicants for GI registration must be collective organizations representing the community of producing, processing and trading products. This leads to the fact that when registering for GI protection for Luc Ngan lychee (Bac Giang) in Japan, the applicant now has to change from the Department of Science and Technology of Bac Giang province (when registering for protection of GIs in the country) to the Product Association, production and consumption of Luc Ngan litchi.
Vietnam's experiences
"Collective organizations" in Vietnam within the scope of this study are understood as organizations working directly with products bearing GIs. Collective organizations can be divided into two groups: (i) groups having legal status including: cooperatives, unions of cooperatives, associations, etc. of manufacturers and traders of products bearing GIs. These organizations were established according to the Government's regulations on organization, operation and management of associations (Decree No. 45/2010/ND-CP 2010; amended and supplemented according to Decree No. 33/2012/ ND-CP 2012) and the Law on Cooperatives; and (ii) groups without legal status including: cooperative groups, hobby clubs, production association groups, etc. That is, these organizations do not meet the criteria of Article 74 of the Civil Code 2015 (established in accordance with regulations; has an organizational structure according to regulations; has independent assets and is responsible for its own assets; independently participates in legal relations in his name).
Based on the process approach, the construction, management and development of GIs is divided into 3 phases: (a) the stage of establishing the protection rights to the GI; (b) the stage of building a legal basis and implementing a system of tools for GI management; and (c) the stage of commercial promotion and development for GIs. The role of the Vietnamese collective organizations is shown in each stage as follows:
a) The stage of establishing the protection rights for GIs
This stage is to develop and submit the registration dossiers for GI protection. Currently, according to regulations, the owner of GIs in Vietnam is the State (Article 121 of the 2005 IP Law). In addition, Article 88 of the 2005 Intellectual Property Law also defines the right to register GIs of Vietnam as belonging to the State. According to the law, organizations and individuals producing products are allowed to carry GIs and have the right to register GIs, those who exercise the right to register GIs will not become the owners of that GI. Referring to this issue, the report of the National Office of Intellectual Property (2021) said that GIs are the common intellectual property of the community associated with the respective geographical area, so the state should perform the regulatory role and a collaborator but should not be the owner in order to ensure the harmony of interests and fairness in the construction, registration and management of GIs (NOIP, 2021).
Currently, the establishment of GI protection rights in Vietnam is being carried out in the direction of a top-down approach (Pick B. et al., 2017). Accordingly, based on the guidelines of the central government, localities develop programs to support the development of local intellectual property, including the protection of GIs. The agency assigned the task is usually the Department of Science and Technology. The state agency can be the lead agency, with the support of research and consulting units or the governing body. However, the majority of protected GIs are registered and managed by organizations belonging to the local government system. The participation of manufacturers, businesses, associations of product manufacturers and traders in the process of building and developing GIs is still limited (NOIP, 2020). Currently, the participation of people, businesses and collective organizations (associations, cooperatives, etc.) is mainly coordinated, they mainly only participate in seminars and conferences to collect opinions on samples, trademarks, rules, and regulations. This practice is very different from the European Union (EU) approach to collective and community organizations. This fact can be explained by three reasons: First, due to the complexity of GI registration dossiers, it is difficult for collective organizations to have the capacity to build a set of dossiers to establish rights, especially demonstrate the correlation between the characteristics, specific quality and reputation of the product with the characteristic elements of natural conditions that create the specific properties, quality, and reputation of the product. Second, the budget for the activity of establishing rights is relatively large, ranging from US$10,870-13,044. If the costs for the construction, management, and development of GIs are included, the cost ranges from US$65,217-86,957. Therefore, it is difficult for collective organizations to have enough financial resources to implement. Third, many GIs are built for products without collective organizations. Some collective organizations are built at the same time or after GIs have been protected, or small-scale collective organizations (cooperatives, production groups) are not capable of implementing them.
However, because production practices are one of the important characteristics that create GIs, the lack of community participation can lead to people's traditional values and specific skills in the production process may be left open. This may lead to the management and development of GIs will not be as expected.
b) The phase of building a legal basis and implementing a system of tools to serve the management of GIs
The current national legal document system has a number of related regulations on management models of GIs such as Article 121, Article 123, Article 198 of the 2005 Intellectual Property Law; Article 19 of the Decree 103/2006/ND-CP. However, these are general terms, regulations on GI owners or owners' rights. So far, in addition to stipulating the content of establishing the protection rights for GIs, there are currently no specific documents on the organizational model of GI management including: roles and responsibilities of regulatory agencies, countries, collective organizations; entities entitled to use GIs; and content, methods and tools for managing and developing GIs. Currently, models of GI management, use and development are built depending on the approach of each locality, issued by the People's Committee of the province/city or an authorized agency (Department of Science and Technology, District People's Committee, etc.). Depending on the approach of each locality, these documents are also very diverse.
If considering the subject performing the function as a GI management organization, out of 101 GIs protected by the end of December 2020, there are 94 GIs of Vietnam, of which only 2 GIs have collective organization (Professional Associations) being authorized to act as the GI management organization, which is Hue GI for conical hats and Melaleuca essential oil products of Thua Thien Hue province. According to the results of expert consultation, GIs with the participation of professional associations in coordination in management only account for about one third of GIs. The participation of the cooperative only plays the role of internal control of its members in the process of using GIs.
Currently, Vietnam has three models in the form of the subject performing the function as a GI management organization, including: (i) the state agency is the subject performing the function as a management organization and without participation of collective organizations; (ii) a state agency is a subject performing the function of a management organization and with the participation and support of collective organizations; (iii) the collective organization is the subject performing the function as a management organization and the state management agencies participate in the role of supporting and performing the state management function.
Regarding GI control activities, this model is divided into internal control and external control. Accordingly, internal control is controlled by organizations and individuals that are granted the right to use GIs. External control is assigned to state agencies to perform, depending on the functions and tasks of each agency. The agency assigned to control is also quite diverse, usually the subordinate units under the management of the GI management agency.
However, the problem is that the resources of state agencies are limited, especially human resources are limited, so the control (including product origin, compliance with technical production processes) of GI products, the quality of GI products, the use of GI label templates for a large number of holders who are granted the right to use GIs are still relatively difficult, which leads to a lack of effective control.
Thus, in this model, the collective organization, specifically the Professional Association, only plays the supporting role, performing the internal control function and/or playing the role of appraising and validating the application file, and issuing certificates of use rights of members. The problem is that internal control activities are a level of control (self-control, internal control, external control). This is a requirement in the regulation on management and use of GIs. However, there is still no document guiding the implementation of internal management of GIs for collective organizations. Therefore, each organization builds its internal management in a different way based on the knowledge and resources of the organization. At the same time, despite stipulating the role of a collective organization in internal control activities, this organization does not have the function of handling violations, that is, it does not have the right to revoke the right to use GIs. This leads to the fact that the actual role of these organizations in GI control is often not high. In addition, in the regulations on management and use of GIs, the coordination between external agencies and collective organizations can only be in the form of a general principle, that is, a collective organization is responsible for coordinating with external control of state agencies to carry out GI management for members in theory, but there is no realistic plan to coordinate in the practice. This leads to the weak coordination between these two levels of control, and the effectiveness of the GI use of the relevant entities is not high (Bui and Nguyen, 2020).
In addition, because GIs are community property, all individuals and organizations that meet the requirements for records and product quality have the right to use them, regardless of whether they are members of the organization, collective or not. This leads to unfair control. That is, members of a collective organization are subject to two levels of control (external control and internal control) while other subjects are only subject to external control. To address this inequity, a number of solutions have also been proposed, such as Cao Bang GI for bamboo products and bamboo mats that stipulate that a member of a collective organization must be a member of a collective organization to be granted the right to use GIs. However, this approach has problems that need to be considered, that is, GIs are the property of the community, and participating in collective organizations or not is the right of organizations and individuals. Meanwhile, the GI of Binh Phuoc for cashew products is using a different approach. That is for members not belonging to the Binh Phuoc Articles Association, the contract between the applicant and the Binh Phuoc Articles Association on the use of the internal control service of the Binh Phuoc Articles Association is a mandatory component of the application when registering to use the article. use CDL.
c) Stage of promotion and commercial development for GIs
Currently, the content of activities to promote and develop products bearing GIs is proposed and mentioned in the Regulations on management and use of GIs. Accordingly, the promotion and commercial development of GIs is often assigned to state agencies in association with the functions and tasks of these organizations (Department of Industry and Trade, Department of Culture, Sports and Tourism, etc.). Accordingly, these units have the task of guiding and supporting organizations and individuals to exploit the domestic and export markets; assume the prime responsibility for organizing propaganda and promotion activities; trade promotion, introduction of GIs. Meanwhile, collective organizations are assigned the responsibility to actively coordinate with functional agencies in promoting and developing commercial products. However, these are all general provisions, with the nature of assignment of duties as the main one.
DISCUSSION AND RECOMMENDATIONS
Currently, the GI management model in Vietnam has many points that are not suitable for capacity and operation. The state still plays a major role in the construction, management and development of GIs, the role of collective organizations is still fuzzy. In the types of collective organizations, only professional associations are present, but participation is still very limited. The Association's participation mainly stops at internal control, use of GIs by members of the Association and/or assisting state agencies in the process of receiving and appraising registration dossiers for use of GIs by organizations and individuals.
Experience in Vietnam shows that many GIs are "suspended" due to the lack of the role of the real private owner and the organization of the GI beneficiaries. Therefore, it is necessary to change the approach towards collective organizations centered in the model of building, managing and developing GIs. The state should only play the role of promoting, supporting (including supporting the establishment, management, development) and external supervision to ensure fairness, because GIs are the common property of communities in the geographical location of the product, and are not owned by any organization/individual. However, because the capacity of each type of collective organization is different, it is necessary to consider what type of collective organization can take on the role of GI management and what conditions are needed for these organizations to effectively exploit GIs.
For collective organizations, it is a cooperative/union of cooperatives. Over the past, the State has issued many policies to promote the establishment of cooperatives/unions of cooperatives and support solutions for these organizations to promote their role as one of the four key economic sectors of Vietnam. This is the type of organization that works directly with products, participates directly in the market, as well as benefits from the good management and exploitation of values from GIs. Therefore, these organizations are suitable to act as GI management organizations. However, it should be noted that cooperatives mainly operate on a small scale (village/communal) while the geographical area corresponding to GI products is often on a large scale (several communes within a district, inter-district) in a province/city), so it is difficult for cooperatives to have enough capacity (financial, human resources, understanding of IP asset management in general and GIs in particular) to manage a large area. Therefore, it is advisable to form cooperatives at commune or district level, to link and consolidate these collective organizations on a larger scale in the form of cooperative unions. These cooperative unions will act as GI management organizations.
For organizations, it is a Professional Association This is an organization that brings together production and business organizations and individuals that work directly with products. However, because these organizations are nonprofit organizations, the main source of income comes from the contributions of their members, and there is no revenue from production and business activities. This leads to difficulties in management, control and development of GIs. Therefore, in order to ensure the effective operation of the Association/Union of Associations, certain support from the State is required so that these organizations can maintain their operation. In addition, businesses and individuals with prestige and management and commercial qualifications, as well as enthusiasm and willingness to join the Association's executive committee, should be encouraged. At the same time, in order for the Association/Union of Associations to really promote its role as a representative of product manufacturers and traders, it is necessary to limit the intervention of the State in the organization's leadership.
On the basis of the analyzed contents, a number of recommendations to ensure effective and sustainable GI construction, management and development are proposed as follows:
It is a reality that for many GIs, the collective organizations that work directly with GI products are relatively small in scale (cooperatives, cooperative groups). Many newly established organizations are still small, organization has not yet been perfected, and resources are limited (especially human and financial). Even after its establishment, resources to maintain regular operations become the main difficulty to maintain operations after the end of the subject or project. Therefore, there should be policies to support the establishment, as well as preferential policies (land, credit, science and technology, etc.) for these collective organizations. At the same time, it is necessary to have policies to support development and capacity building on a continuous and regular basis for collective organizations, especially skills in management, financial management, production organization and development. market development.
CONCLUSION
Currently, in addition to the content regulations on establishing protection rights for GIs, Vietnam still lacks specific regulations on the organization of GI management, and the management, use and development of GIs. Models of management, use and development of GIs are being built depending on the approach of each locality. The management of GIs is mainly carried out by state agencies. The participation of collective organizations is still relatively weak, mainly in supporting roles. The management and exploitation of the value of GIs are still limited due to the lack of roles of the private and institutional owners of GIs.
In order to ensure effective management and use of GIs, the study suggests that it is necessary to give more rights and responsibilities to collective organizations, especially cooperatives/union of cooperatives, Associations/Union of Associations in their role as a GI management organization under Clause 2, Article 123 of the IP Law 2005. This contributes to improving supervision and reducing the burden on state management agencies. To achieve this, the State needs to have policies to support the establishment, development and capacity building on a continuous and regular basis for collective organizations, especially in management skills and financial management, production organization and market development. In addition, on the basis of the analysis, the study also proposes a number of recommendations to policy makers to improve the efficiency of GI management and development in Vietnam.
REFERENCES
Bui Thi Hang Nga & Nguyen Minh Bach Tung (2020). Protection of geographical indications: requirements of sustainable agricultural development. Journal of Legislative Studies, 17(417).
French Government (2006). Decree No. 2006-1547 dated December 7, 2006 on raising the value of agricultural, forestry and fishery products. https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006071367.
Swiss Government (1997). Decree of May 28, 1997 on the protection of appellations of origin and geographical indications as agricultural and processed agricultural products. https://wipolex.wipo.int/en/text/219896.
National Office of Intellectual Property NOIP (2006). Annual Report on Intellectual Property Activity 2005. Hanoi, Vietnam.
National Office of Intellectual Property NOIP (2020). Annual report on intellectual property activities 2019. Hanoi, Vietnam.
National Office of Intellectual Property NOIP (2021). Annual report on intellectual property activities 2020. Hanoi, Vietnam.
Dang Cong Nhat Thuan (2018). Protection of industrial property rights for geographical indications meeting the requirements of the Vietnam - EU Free Trade Agreement (EVFTA) [Master's Thesis, University of Law (Hue University)]. Thua Thien Hue, Vietnam.
Dao Duc Huan (2017). Management of geographical indications for agricultural products of Vietnam [PhD Thesis, National Economics University]. Hanoi, Vietnam.
Hoang, G., Le, HTT, Nguyen, AH, & Dao, QMT (2020). The impact of geographical indications on sustainable rural development: A case study of the Vietnamese Cao Phong orange. Sustainability, 12(11), 4711. https://doi.org/https://www.doi.org/10.3390/su12114711
Nguyen Thi Phuong Thao (2016). Building an independent control system to manage geographical indications of Vietnam [Master's Thesis, University of Social Sciences and Humanities (Vietnam National University, Hanoi)]. Hanoi, Vietnam.
Pick, B., Marie-Vivien, D., & Kim, DB (2017). The Use of Geographical Indications in Vietnam: A Promising Tool for Socioeconomic Development? In I. Calboli & WL Ng-Loy (Eds.), Geographical Indications at the Crossroads of Trade, Development, and Culture: Focus on Asia-Pacific (pp. 305-332). Cambridge University Press. https://doi.org/https://doi.org/10.1017/9781316711002.014
The Council of the European Union (2020). COUNCIL DECISION (EU) 2019/753 of 30 March 2020 on the conclusion of the Free Trade Agreement between the European Union and the Socialist Republic of Vietnam. http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437
The European Parliament and the Council of the European Union (2012). Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012R1151
The Republic of Indonesia (2016). Law of the Republic of Indonesia Number 20 of 2016 on Marks and Geographical Indications. https://internationalipcooperation.eu/sites/default/files/arise-docs/2019/Indonesia_Law-on-Marks-and-Geographical-Indications-20-2016.pdf
WTO (1994). Agreement on trade-related aspects of intellectual property rights. https://www.wto.org/english/docs_e/legal_e/27-trips.pdf