Real Property

Mortgages are recognized and enforced in Brunei; however, only Bruneian citizens can own land property in Brunei.  Foreigners and permanent residents can only hold properties under long-term leases. Most banks are reluctant to grant housing loans to foreigners and permanent residents.  According to the International Monetary Fund (IMF) Brunei country report, Brunei did not attract any foreign direct investment for real estate, rentals, and business activity in 2011 (latest data available).  Brunei’s Department of Economic Planning and Development does not publish FDI data for real estate. Every transfer of ownership in Brunei requires the approval of “His Majesty in Council” which is a council of officials representing the Sultan.  This process can be lengthy and at times opaque.

As of September 2016, the Brunei government announced land code amendments that allowed non-citizens to own properties under the Land Strata Act title for a maximum of 99 years without the means of powers of attorney.  Amendments to the Land Code are being considered to ban past practices of proxy land sales to foreigners and permanent residents using power of attorney and trust deeds. The amendments to the Land Code have made powers of attorney and trust deeds no longer recognized as mechanisms in land transactions involving non-citizens.  The government may grant temporary occupation permits over state land to applicants, for licenses to occupy land for agricultural, commercial, housing or industrial purposes. These licenses are not registered, and are granted for renewable annual terms.

Intellectual Property Rights

Brunei’s intellectual property rights (IPR) protection and enforcement regime is still in development but is increasingly strong and effective.  The country was removed from the U.S. Trade Representative’s Special 301 report in 2013, and has stayed off in recognition of its improving IPR protections, increasing enforcement, and efforts to educate the public about the importance of IPR.

Brunei finalized and adopted the Copyright (Amendment) Order 2013 in December 2013, a development long requested by the U.S. government.  The amendment enhanced enforcement provisions for copyright infringement by increasing the penalties for IP offenses; adding new offenses; strengthening the enforcement powers of the Royal Brunei Police Force and the Ministry of Finance Customs and Excise Department; and allowing for sanctioned private prosecution.  The amendments are designed to deter copyright infringements with fines of BND 10,000 (USD $7,400) to BND 20,000 (USD $14,800) per infringing copy, imprisonment for a term up to five years, or both. The new penalty is up to four times more severe than the previously existing penalty. Enforcement agencies are authorized to enter premises and arrest without warrant, to stop, search, and board vehicles and also to access computerized and digitized data.  The amendments further allow for admissibility of evidence obtained covertly and protect the identity of informants. Statistics on seizures of counterfeit goods are unavailable.

Brunei transferred its Registry of Trademarks from the Attorney General’s Chambers (AGC) to the Brunei Intellectual Property Office in 2013.  The transfer expanded the country’s Patents Registry Office’s (PRO) ability to accept applications for trademarks registration, in addition to patents and industrial designs.

In September 2013, Brunei acceded to the Geneva (1999) Act of the Hague Agreement Concerning the International Registration of Industrial Designs to protect IP from industrial designs, making it the second ASEAN Member country, following Singapore, to accede.  The accession emphasized Brunei’s commitment under the ASEAN Intellectual Property Rights Action Plan 2011 – 2015. Brunei also plans and has publicly committed to acceding to other World Intellectual Property Organization’s (WIPO) treaties including the Madrid Protocol for the International Registration of Marks, the WIPO Performances and Phonograms Treaty

(WPPT), and the UPOV Convention 1991 for the protection of New Varieties of Plants (PV).

For additional information about treaty obligations and points of contact at local IP offices, please see WIPO’s country profiles at: http://www.wipo.int/directory/en/  

Resources for Rights Holders

Contact at Mission:

Paul R. Estrada
Political/Economic/Consular Officer
Telephone: +673 238-4616 ext. 2172
Email: EstradaPR@state.gov

Real Property

Mortgages exist in Cambodia, and Cambodian banks often require certificates of property ownership as collateral before approving loans. The mortgages recording system, which is handled by private banks, is generally considered reliable.

Cambodia’s 2001 Land Law provides a framework for real property security and a system for recording titles and ownership. Land titles issued prior to the end of the Khmer Rouge regime (1975-79) are not recognized due to the severe dislocations that occurred during that time period. The government is making efforts to accelerate the issuance of land titles, but in practice, the titling system is reported to be cumbersome, expensive, and subject to corruption. The majority of property owners lack documentation proving ownership. Even where title records exist, recognition of legal titles to land has not been uniform, and there are reports of court cases in which judges have sought additional proof of ownership.

Foreigners are constitutionally forbidden to own land in Cambodia; however, the 2001 Land Law allows long and short-term leases to foreigners. Cambodia also allows foreign ownership in multi-story buildings, such as condominiums, from the second floor up. 

Cambodia was ranked 124 out of 190 economies for ease of registering property in the 2019 World Bank Doing Business Report.

Intellectual Property Rights

Infringement of IPR is prevalent in Cambodia. Counterfeit and pirated goods are readily available in local markets and stores, and the enforcement  is weak. IP-infringing goods include counterfeit apparel, footwear, cigarettes, alcohol, pharmaceuticals, consumer goods, and pirated media such as software, music, and books. Although Cambodia is not a major center for the production and export of counterfeit or pirated materials, local businesses report that the problem is growing because of the lack of enforcement. To date, however, Cambodia has not been listed by the Office of the U.S. Trade Representative (USTR) in its annual Special 301 Report, which identifies trading partners that do not adequately protect and enforce IPR.

Cambodia has enacted several laws pursuant to its WTO commitments on intellectual property. Its key IP laws include the Law on Marks, Trade Names and Acts of Unfair Competition (2002), the Law on Copyrights and Related Rights (2003), the Law on Patents, Utility Models and Industrial Designs (2003), the Law on Management of Seed and Plant Breeder’s Rights (2008), the Law on Geographical Indications (2014), and the Law on Compulsory Licensing for Public Health (2018).Cambodia joined WIPO in 1995 and has acceded to a number of international IPR protocols, including the Paris Convention (1998), the Madrid Protocol (2015), the WIPO Patent Cooperation Treaty (2016), The Hague Agreement Concerning the International Registration of Industrial Design (2017), and the Lisbon Agreement on Appellations of Origin and Geographical Indications (2018). Despite this, many of the commitments included in these treaties remain unfulfilled due to Cambodia’s lack of institutional capacity.

To combat the trade in counterfeit goods, the Cambodian Counter Counterfeit Committee (CCCC) was established in 2014 under the Ministry of Interior to investigate claims, seize illegal goods, and prosecute counterfeiters. The Economic Police, Customs, the Cambodia Import-Export Inspection and Fraud Repression Directorate General, and the Ministry of Commerce also have IPR enforcement responsibilities; however, the division of responsibility among each agency is not clearly defined. This causes confusion to rights owners and muddles the overall IPR environment. Although in recent years seizure of counterfeit goods has increased, seizure usually does not occur unless a formal complaint has been made.

For additional information about treaty obligations and points of contact at local IP offices, please see the World Intellectual Property Organization’s country profiles at www.wipo.int/directory/en/details.jsp?country_code=KH  

Real Property

The Basic Agrarian Law of 1960, the predominant body of law governing land rights, recognizes the right of private ownership and provides varying degrees of land rights for Indonesian citizens, foreign nationals, Indonesian corporations, foreign corporations, and other legal entities. Indonesia’s 1945 Constitution states that all natural resources are owned by the government for the benefit of the people. This principle was augmented by the passage of a land acquisition bill in 2011 that enshrined the concept of eminent domain and established mechanisms for fair market value compensation and appeals. The National Land Agency registers property under Regulation No. 24/1997, though the Ministry of Forestry administers all ‘forest land’. Registration is sometimes complicated by local government requirements and claims, as a result of decentralization. Registration is also not conclusive evidence of ownership, but rather strong evidence of such. Government Regulation No.103/2015 on house ownership by foreigners domiciled in Indonesia allows foreigners to have a property in Indonesia with the status of a “right to use” for a maximum of 30 years, with extensions available for up to 20 additional years.

Intellectual Property Rights

Indonesia is currently on the U.S. Trade Representative’s (USTR) Special 301 priority watch list for intellectual property rights (IPR) protection. According to U.S. stakeholders, Indonesia’s failure to effectively protect intellectual property and enforce IPR laws has resulted in high levels of physical and online piracy. Local industry associations have reported tens of millions of pirated films, music, and software in circulation in Indonesia in recent years, causing potentially billions of dollars in losses.  Indonesian physical markets, such as Pasar Mangga Dua, and online markets Tokopedia, Bukalapak, and IndoXXI.com were included in USTR’s Notorious Markets list in 2018.

Indonesian efforts to enhance IP protection policy were mixed this year. The 2016 Patent Law, continues to be a source of significant concern for IP stakeholders, especially expansive compulsory license provisions and a requirement under Article 20 to produce a patented product in Indonesia within 36 months of the grant of a patent. In July 2018, the Ministry of Law and Human Rights (MLHR) enacted Ministerial Regulation 15/2018, allowing patent holders to request a five-year, renewable exemption from the 36-month local production requirement under Article 20.  However, MLHR issued Ministerial Regulation 39/2018 on December 28, providing new procedures for obtaining compulsory licenses for a variety of patented products. Regulation 39/2018 would allow individuals, government institutions, and patent holders to apply for a compulsory license on three bases: 1) failure to produce a patented product in Indonesia within 36 months; 2) use of a patent in a manner detrimental to the public interest; and 3) where a patent cannot be implemented without utilizing another party’s patent. The new regulation also gives MLHR the discretion to grant compulsory licenses to produce, import, and export patented products needed to remedy human disease in Indonesia and third countries.

MLHR reports that the five-year exemption from local production requirements under Regulation 15/2018 will continue to be available despite the issuance of Regulation 39/2018. The 2016 Patent Law contains several other provisions that some have defined as “concerning”, including a  definition of “invention” that potentially imposes an additional “increased meaningful benefit” requirement for patents on new forms of existing compounds, an expansive national interest test for proposed patent licenses, and disclosure of genetic information and traditional knowledge to promote access and benefit sharing.  The Directorate General for Intellectual Property (DGIP) is currently drafting guidelines on pharmacy, computer, and biotechnology patents for examiners; DGIP plans to release the guidelines in 2019.

DGIP has become more active in its efforts to collect patent annuity fees. On August 16, 2018, DGIP issued a circular letter warning stakeholders that it may refuse to accept new patent applications from rights holders that have not paid patent annuity fee debts. The letter gave rights holders until February 16, 2019, to settle unpaid patent annuity payments. On February 17, 2019, DGIP issued another circular letter on its website to extend the period of time for a patent holder to settle any unpaid annuities for 6 months to August 17, 2019. The U.S. government continues to monitor implementation of this policy with DGIP and industry stakeholders.

Indonesia deposited its instrument of accession to the Madrid Protocol with the World Intellectual Property Organization (WIPO) in October 2017 and issued implementing regulations in June 2018. Under the new rules, Madrid Protocol applicants are required to register their application with DGIP first, and must be Indonesian citizens, domiciled in Indonesia, or have clear industrial or commercial interests in Indonesia. Although the Trademark Law of 2016 expanded recognition of non-traditional marks, Indonesia still does not recognize certification marks. In response to stakeholder concerns over a lack of consistency in treatment of international well-known trademarks, the Supreme Court issued Circular Letter 1/2017, which advised Indonesian judges to recognize cancellation claims for well-known international trademarks with no time limit stipulation.

The Ministry of Finance’s Directorate General for Customs and Excise (DGCE) continued to implement ex officio authorities to investigate shipments of infringing goods in 2018. Under MOF Regulation 40/2018, DGCE launched an online trademark recordation system that enables customs officials to detain a shipment of potentially IP-infringing goods for up to two days in order to inform a registered rights holder of the suspect shipment. Once the rights holder confirms the shipment is suspect, it has four days to file a request to suspend the shipment with the Indonesian Commercial Court. Rights holders are required to provide a monetary guarantee of IDR 100 million (approximately USD 7,700) when they request suspension of a shipment. Despite  business stakeholder concerns, the GOI retained a requirement that only companies with offices domiciled in Indonesia may use the recordation system.

In 2015, DGIP and KOMINFO jointly released implementing regulations under the Copyright Law to provide for rights holders to report websites that offer IP-infringing products and sets forth procedures for blocking IP-infringing sites. Also in 2015, Indonesia’s Creative Economy Agency (BEKRAF) launched an anti-piracy task force with film and music industry stakeholders. BEKRAF reported that the taskforce remained focused on coordinating the review of complaints from industry about infringing websites in 2018. KOMINFO reported that it blocked 442 infringing websites in 2018.

DGIP reports that its directorate of investigation has increased staffing to 187 investigators, including 40 nationwide investigators and 147 staff certified to act as local investigators in 33 provinces when needed for a pending case, and saw the number of investigations double from 16 in 2017 to 36 in 2018. BPOM, Indonesia’s food and drug administration, reported the seizure of more than USD 6.3 billion in counterfeit drugs and cosmetics during the year. Trademark, Patent, and Copyright legislation requires a rights-holder complaint for investigations, and DGIP and BPOM investigators lack the authority to make arrests so must rely on police cooperation for any enforcement action.

Resources for Rights Holders

Additional information regarding treaty obligations and points of contact at local IP offices, can be found at the World Intellectual Property Organization (WIPO) country profile website http://www.wipo.int/directory/en/ .For a list of local lawyers, see: http://jakarta.usembassy.gov/us-service/attorneys.html.

Real Property

The government continues to consider changes to its existing land policy, although progress has been slow; and is complicated by sensitive issues including community-held land rights, traditional land rights, slash-and-burn or shifting cultivation, and a history of expropriation for infrastructure, mining, and power projects. A draft revision to the Law on Land Rights has been previewed at multiple National Assembly sessions, but continues to be delayed because of the numerous sensitivities.

Foreign investors are not currently permitted to own land.  However, Article 16 of the 2016 Law on Investment Promotion allows investors to obtain land for use through long-term leases or as concessions, and allows the ownership of leases and the right to transfer and improve leasehold interests.  Government approval is not required to transfer property interests, but the transfer must be registered and a registration fee paid.

Under existing law, a creditor may enforce security rights against a debtor and the concept of a mortgage does exist.  The Lao government is currently engaged in a land parceling and titling project, but it remains difficult to determine if a piece of property is encumbered in Laos.  Enforcement of mortgages is complicated by the legal protection given mortgagees against forfeiture of their sole place of residence.

Laos provides for secured interests in moveable and non-moveable property under the 2005 Law on Secured Transactions and a 2011 implementing decree from the Prime Minister.  In 2013, the State Assets Management Authority at the Ministry of Finance launched a new Secured Transaction Registry (STR), intended to expand access to credit for individuals and smaller firms.  The STR allows for registration of movable assets such as vehicles and equipment so that they may be easily verified by financial institutions and used as collateral for loans.

Outside of urban areas, land rights can be even more complex.  Titles and ownership are not clear, and some areas practice communal titling.

Intellectual Property Rights

Intellectual property protection in Laos is weak, but steadily improving.  The USAID-funded Lao PDR-U.S. International and ASEAN Integration (USAID LUNA II) project assisted the Lao government’s efforts to increase its capacity in the area of IPR and to progress on the IPR-related commitments undertaken as a part of Laos’ 2013 WTO accession package. USAID LUNA II worked with the Ministry of Science and Technology’s Department of Intellectual Property to establish an online portal that provides detailed information regarding the registration of copyrights and trademarks. Interested individuals can use the portal to complete the application forms online. The portal officially launched in February 2019. Additionally, USAID LUNA II provided technical support to the Lao government in amending the Law on Intellectual Property.

Government reorganization in 2011 created the Ministry of Science and Technology, which controls the issuance of patents, copyrights, and trademarks.  Laos is a member of the ASEAN Common Filing System on patents but lacks qualified patent examiners. The bilateral Intellectual Property Rights (IPR) agreement between Thailand and Laos dictates that a patent issued in Thailand also be recognized in Laos.

Laos is a member of the World Intellectual Property Organization (WIPO) Convention and the Paris Convention on the Protection of Industrial Property but has not yet joined the Berne Convention on Copyrights.

In 2011 the National Assembly passed a comprehensive revision of the Law on Intellectual Property which brings it into compliance with WIPO and Trade-Related Aspects of Intellectual Property standards (TRIPS).  Amendments to the 2011 Law on Intellectual Property were made public in May 2018. The consolidation of responsibility for IPR under the Ministry of Science and Technology is a positive development, but the Ministry lacks enforcement capacity.

Laos is not listed in USTR’s Special 301 Report or the Notorious Markets report.

For additional information about treaty obligations and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/  .

Real Property

Land administration is shared among federal, state, and local government.  State governments have their own rules about land ownership, including foreign ownership.  Malaysian law affords strong protections to real property owners. Real property titles are recorded in public records and attorneys review transfer documentation to ensure efficacy of a title transfer.  There is no title insurance available in Malaysia. Malaysian courts protect property ownership rights. Foreign investors are allowed to borrow using real property as collateral. Foreign and domestic lenders are able to record mortgages with competent authorities and execute foreclosure in the event of loan default.  Malaysia ranks 29th (ranked 42nd in 2018) in ease of registering property according to the Doing Business 2019 report, right behind Finland and ahead of Hungary, thanks to changes it made to its registration procedures.

[Reference]

http://www.doingbusiness.org/rankings .

Intellectual Property Rights

In December 2011, the Malaysian Parliament passed amendments to the copyright law designed to, inter alia, bring the country into compliance with the WIPO Copyright Treaty and the WIPO Performance and Phonogram Treaty, define Internet Service Provider (ISP) liabilities, and prohibit unauthorized recording of motion pictures in theaters.  Malaysia subsequently acceded to the WIPO Copyright Treaty and the WIPO Performance and Phonogram Treaty in September 2012. In addition, the Ministry of Domestic Trade, Cooperatives, and Consumerism (MDTCC) took steps to enhance Malaysia’s enforcement regime, including active cooperation with rights holders on matters pertaining to IPR enforcement, ongoing training of prosecutors for specialized IPR courts, and the 2013 reestablishment of a Special Anti-Piracy Taskforce.

In response to trends of rising internet piracy, the interagency Special Anti-Piracy Task Force established a Special Internet Forensics Unit (SIFU) within MDTCC.  The SIFU team’s responsibilities include monitoring for sites suspected of being, or known as, purveyors of infringing content. This organization follows MDTCC’s practice of launching investigations based on information and complaints from legitimate host sites and content providers.  Capacity building remains a priority for the SIFU. Coordination with the Malaysian Communications and Multimedia Commission (MCMC), which has responsibility for overall regulation of internet content, has been improving, according to many rights holders in Malaysia. Our contacts at MDTCC have told Post that the process of developing investigative leads that would support a case for the Attorney General’s Chambers (equivalent to the U.S. Department of Justice) is a work in progress.

Despite Malaysia’s success in improving IPR enforcement, key issues remain, including relatively widespread availability of pirated and counterfeit products in Malaysia, high rates of piracy over the Internet, and continued problems with book piracy.  USTR conducted an Out-of-Cycle Review of Malaysia in 2018 to consider the extent to which Malaysia is providing adequate and effective IP protection and enforcement, including with respect to patents.  During this review, the United States and Malaysia have held numerous consultations to resolve outstanding issues.  In 2019, USTR extended the Out-of-Cycle Review of Malaysia while asking Malaysia to complete actions to fully resolve these concerns in the near term.

The United States continues to encourage Malaysia to accede to the WIPO Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.  In addition, the United States continues to urge Malaysia to provide effective protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical products, and to provide an effective system to address patent issues expeditiously in connection with applications to market pharmaceutical products.

For additional information about national laws and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/  .

Real Property

The Philippines recognizes and protects property rights, but the enforcement of laws is weak and fragmented.  The Land Registration Authority and the Register of Deeds (http://www.lra.gov.ph/), which facilitate the registration and transfer of property titles, are responsible for land administration, with more information available on their website  s.  Property registration processes are tedious and costly.  Multiple agencies are involved in property administration, which results in overlapping procedures for land valuation and titling processes.  Record management is weak due to a lack of funds and trained personnel. Corruption is also prevalent among land administration personnel and the court system is slow to resolve land disputes.  The Philippines ranked 114th out of 190 economies in terms of ease of property registration in the World Bank’s 2018 Ease of Doing Business report.

Intellectual Property Rights

The Philippines is not listed on the United States Trade Representative’s (USTR) Special 301 Report.  The country has a robust intellectual property rights (IPR) regime in place, although enforcement is irregular and inconsistent.  The total estimated value of counterfeit goods reported seized in 2018 was USD 453 million, nearly a 180 percent increase from USD 162 million in 2017.  The sale of imported counterfeit goods in local markets has visibly decreased, though stakeholders report the amount of counterfeit goods sold online is gradually increasing.

The Intellectual Property (IP) Code provides legal framework for IPR protection, particularly in key areas of patents, trademarks, and copyrights.  The Intellectual Property Office of the Philippines (IPOPHL) is the implementing agency of the IP Code, with more information available on its website  .  The Philippines generally has strong patent and trademark laws.  IPOPHL’s IP Enforcement Office (IEO) reviews IPR-related complaints and visits establishments reportedly engaged in IPR-related violations.  However, weak border protection, corruption, limited enforcement capacity by the government, and lack of clear procedures continue to weaken enforcement.  In addition, IP owners still must assume most enforcement costs when counterfeit goods are seized.

Enforcement actions are often not followed by successful prosecutions.  The slow and capricious judicial system keeps most IP owners from pursuing cases in court.  IP infringement is not considered a major crime in the Philippines and takes a lower priority in court proceedings, especially as the courts become more crowded out with criminal cases, which receive higher priority.  Many IP owners opt for out-of-court settlements (such as ADR) rather than filing a lawsuit that may take years to resolve in the unpredictable Philippine courts. The IPOPHL has jurisdiction to resolve certain disputes concerning alleged infringement and licensing through its Arbitration and Mediation Center.

For additional information about treaty obligations and points of contact at the local IP offices, see WIPO’s country profiles at http://www.wipo.int/directory/en/  .

Resources for Rights Holders

Contact at Mission:

Douglas Fowler, Economic Officer
Economic Section, U.S. Embassy Manila
Telephone: (+632) 301.2000
Email: ManilaEcon@state.gov

A list of local lawyers can be found on the U.S. Embassy’s website: https://ph.usembassy.gov/u-s-citizen-services/attorneys/

Real Property

Property rights and interests are enforced in Singapore. Residents have access to mortgages and liens, with reliable recording of properties. In the 2018 World Bank Doing Business Report, Singapore ranks first in the world in enforcing contracts and number 21st in registering property.

Foreigners are not allowed to purchase public housing (HDB) in Singapore, and prior approval from the Singapore Land Authority is required to purchase landed residential property and residential land for development. Foreigners are allowed to purchase non-landed, private sector housing (e.g. condominiums or any unit within a building) without the need to obtain prior approval, however they are not allowed to acquire all the apartments or units in s development without prior approval. These restrictions also apply to foreign companies.

There are no restrictions on foreign ownership of industrial and commercial real estate. In December 2011, the government enacted an additional effective ten percent tax, or Additional Buyer’s Stamp Duty (ABSD), on foreigners who purchase homes in Singapore. In July 2018 the government raised the ABSD to 20 percent; however, U.S. citizens are accorded national treatment under the FTA, meaning only second and subsequent purchases of residential property will be subject to 12 and 15 percent ABSD, equivalent to Singaporean citizens.

The availability of covered bond legislation under MAS Notice 648 has provided an incentive for Singapore financial institutions to issue covered bonds. Under Notice 648, only a bank incorporated in Singapore may issue covered bonds. The three main Singapore banks: DBS, OCBC, and UOB, all have in place covered bond programs, with the majority of issues being private placements. The banking industry has made suggestions to allow the use of covered bonds in repo transactions with the central bank and to increase the encumbrance limit, currently at four percent. (http://www.mas.gov.sg/regulations-and-financial-stability/regulations-guidance-and-licensing/commercial-banks/notices/2013/notice-648-issuance-of-covered-bonds-by-banks-incorporated-in-singapore.aspx )

Intellectual Property Rights

Singapore has developed one of the strongest intellectual property rights (IPR) regimes in Asia and has brought its IPR laws in line with international standards. However, some businesses have expressed concern in certain areas such as business software piracy, online piracy, and enforcement.

The Patents (Amendment) Act will close the foreign route for examination which allows granting of a patent based on a search and examination results of a foreign patent office with effect from January 1, 2020. All patent applications must be fully examined by Intellectual Property Office of Singapore (IPOS) to ensure that granted patents fully satisfy Singapore’s patentability criteria. The Registered Designs (Amendment) Act broadens the scope of registered designs to include virtual designs and color as a design feature, and will stipulate the default owner of designs to be the designer of a commissioned design, rather than the commissioning party.

The USSFTA ensures that government agencies will not grant regulatory approvals to patent- infringing products, but Singapore does allow parallel imports. Under the Patents Act, with regards to pharmaceutical products, the patent owner has the right to bring an action to stop an importer of “grey market goods” from importing the patent owner’s patented product, provided that the product has not previously been sold or distributed in Singapore. If the conditions are met, the importation results in a breach of contract between the proprietor of the patent and any person licensed by the proprietor of the patent to distribute the product outside Singapore and the importer has knowledge of such.

The USSFTA ensures protection of test data and trade secrets submitted to the government for regulatory approval purposes. Disclosure of such information is prohibited. Such data may not be used for approval of the same or similar products without the consent of the party who submitted the data for a period of five years from the date of approval of the pharmaceutical product and ten years from the date of approval of an agricultural chemical. Singapore has no specific legislation concerning protection of trade secrets. Instead, it protects investors’ commercially valuable proprietary information under common law by the Law of Confidence as well as legislation such as the Penal Code (e.g. theft) and the Computer Misuse Act (e.g., unauthorized access to a computer system to download information). U.S. industry has expressed concern that this provision is inadequate.

Singapore is a member of the WTO and a party to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It is a signatory to other international intellectual property rights agreements, including the Paris Convention, the Berne Convention, the Patent Cooperation Treaty, the Madrid Protocol, and the Budapest Treaty. The World Intellectual Property Organization (WIPO) Secretariat opened a regional office in Singapore in 2005 (http://www.wipo.int/about-wipo/en/offices/singapore/  ). Amendments to the Trademark Act, which were passed in January 2007, fulfill Singapore’s obligations in WIPO’s revised Singapore Treaty on the Law of Trademarks.

Singapore ranked 10th out of 50 in the world in the 2019 U.S. Chamber of Commerce’s International IP Index. The index noted that Singapore’s key strengths include an advanced national IP framework and efforts to accelerate patent examination and grants.  The index also lauded Singapore as a global leader in online copyright enforcement.  Despite a decrease in estimated software piracy from 35 percent in 2009 to 27 percent in 2019, the Index noted that piracy levels remain high for a developed high-income country.  Lack of transparency and data on customs seizures of IP-infringing goods was also noted as a key area of weakness.

Singapore does not publicly report statistics on seizures of counterfeit goods, and does not score highly on enforcement of physical counterfeit goods, online sales of counterfeit goods or digital online piracy, according to the 2018 U.S. Chamber of Commerce’s International IP Index. Singapore is not listed in USTR’s Special 301 report, or the notorious market report.  For additional information about national laws and points of contact at local IP offices, see WIPO’s country profiles at http://www.wipo.int/directory/en/  

Real Property

Property rights are guaranteed by the Constitution against being condemned or nationalized without fair compensation. Thai government policy generally does not permit foreigners to own land, but there have been cases of granting official permission under certain laws or ministerial regulations for residential, business or even religious purposes. Foreigners can freely lease land, as the governing Civil and Commercial Code does not distinguish between foreign and Thai nationals in the exercise of lease rights. Foreign ownership of condominiums and buildings is also permitted under certain laws. Secured interests in property, such as mortgage and pledge, are recognized and enforced. Under Thai law, unoccupied property legally owned by foreigners or Thais may be subject to adverse possession by squatters or people who stay on that property for at least 10 years. According to the World Bank’s 2019 Doing Business report, Thailand’s Registering Property ranking rose to 66 from 68 in 2018.

Intellectual Property Rights

Thailand’s efforts to clamp down on widespread commercial IP counterfeiting and piracy have been enhanced by Prime Minister Prayut Chan-o-cha’s strong political commitment to IPR enforcement. The Prime Minister ordered the establishment of a 12-agency IPR Cabinet sub-committee and the development of a 20-year IP Roadmap as well as closer coordination among the country’s Internal Security Operations Command, law enforcement agencies, and IP rights holders. In December 2018, the National Broadcasting and Telecommunications Commission (NBTC), the country’s telecom regulator, the Royal Thai Police, and the Department of the Intellectual Property (DIP) at the Ministry of Commerce combined to set up a new “Center of Operational Policing for Thailand against Intellectual Property Violations and Crimes on the Internet Suppression” to expedite efforts to tackle online IPR violations.

Patents and Trademarks

Thailand’s patent regime generally provides protection for most inventions. The examination of patent applications through issuance of patents takes on an average of six to eight years. Patent issuance may take longer in certain technology sectors. In order to address the backlog problem, DIP hired 88 additional patent and trademark examiners over the last few years.  Additional examiners helped decrease the patent application backlog by 20 percent in 2018. As of September 2018, approximately 16,000 patent applications were pending for examination, according to DIP. With regard to trademarks, DIP takes on average 10-14 months for trademark approvals.

The Thai government is in the process of adopting an amendment to the Patent Act that would streamline the patent registration process and implement its international obligations under the Amendment of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) related to patent and public health, which Thailand ratified in January 2016.  The draft amendment is pending the legislature’s approval.

Starting in September 2017, rights owners can file for sound trademark registration, a development enabled by a July 2016 amendment of Thailand’s Trademark Act. Thailand acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol) in August 2017, and the agreement entered into effect in November 2017. The Thai government is also working on an amendment to the Patent Act to prepare Thailand for accession to the Hague Agreement Concerning the International Registration of Industrial Designs.

Copyrights

Thailand’s amended Copyright Act came into effect on March 11, 2019. Thailand is a member of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. Thailand deposited the instrument of accession to the Marrakesh Treaty with the World Intellectual Property Organization (WIPO) on January 28, 2019.  

In addition, Thailand is in the process of a two-phase amendment of the Copyright Act. The first phase would enhance mechanisms to protect copyrights in the digital environment and prepare Thailand for accession to the WIPO Copyright Treaty; the second phase would prepare Thailand for accession to the WIPO Performances and Phonograms Treaty. The first-phase draft is under review by the Council of State, while the second phase amendment is in the drafting process.  

The Thai government amended the Computer Crime Act in 2017 to add IPR infringement as a predicate offense under Section 20, enabling IP right holders to file requests to either DIP or the Ministry of Digital Economy and Society for removal of IPR-infringing content from online computer systems or disabling of access to it. Online video providers and human rights advocates continue to voice serious concerns regarding use of the Computer Crimes Act to limit free speech and to compel internet service providers (ISP) to comply with Thai government requests to remove content or else face penalties.

Geographical Indications

Thailand’s Geographical Indications (GI) Act has been in force since April 2004. Thailand protects GIs, which identify goods by their specific geographical origins. The geographical origins identified by a GI must attribute to the reputation, qualities, or characteristics of the good. In Thailand, a registered trademark does not prevent a similar geographical name to be registered as a GI.

IP Enforcement

Thailand has provided ex-officio authority for border enforcement officials with respect to in-transit goods; set enforcement benchmarks; began monthly publishing of enforcement statistics online; and stepped up efforts to investigate IP cases. Thailand has a Court of Appeal for Specialized Cases, which hears appeals from the Central Intellectual Property and International Trade Court, including administrative appeals from DIP that already received a first instance decision from the Central Intellectual Property and International Trade Court.

In late 2017, Thailand was upgraded from the USTR Special 301 Priority Watch List, where it had been placed since 2007, to the Watch List. Currently, there are no Thai markets listed in the USTR Notorious Markets Report.

For additional information about national laws and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/  .

Real Property

The State collectively owns and manages all land in Vietnam, and therefore neither foreigners nor Vietnamese nationals can own land. However, the government grants land-use and building rights, often to individuals.  According to the Ministry of National Resources and Environment (MONRE), as of September 2018, the government has issued land-use rights certificates for 96.9 percent of land in Vietnam. If land is not used, according to the land-use rights certificate or if it is unoccupied, it reverts to the government. Vietnam is building a national land-registration database, and some localities have already digitized their land records.

The MONRE is drafting amendments to the 2013 Land Law, which would focus on several major issues, including eradicating the farmland acquisition quota, increasing cases of land recovery by the State, assigning district-level administrators rather than provincial-level administrators to accurately set land prices, and allowing foreigners to own homes in Vietnam. MONRE expects to submit the draft law to the National Assembly for review and approval in 2020.    

State protection of property rights is still evolving, as the State can expropriate land for socio-economic development. Under the Housing Law and Real Estate Business Law passed by the National Assembly in November 2014, the government can take land if it deems it necessary for socio-economic development in the public or national interest and the Prime Minister, the National Assembly, or the Provincial People’s Council approves such action. However, the law loosely defined “socio-economic” development, and there are many outstanding legal disputes between landowners and local authorities. Disputes over land rights continue to be a significant driver of social protest in Vietnam. Foreign investors also may be exposed to land disputes through merger and acquisition activities when they buy into a local company.

In addition to land, the State’s collective property includes “forests, rivers and lakes, water supplies, wealth lying underground or coming from the sea, the continental shelf and the air, the funds and property invested by the government in enterprises, and works in all branches and fields – the economy, culture, society, science, technology, external relations, national defense, security – and all other property determined by law as belonging to the State.”

The Housing Law and Real Estate Business Law extended “land-use rights” to foreign investors, allowing titleholders to conduct property transactions, including mortgages. Foreign investors can lease land for renewable periods of 50 years, and up to 70 years in some poor areas of the country.

In June 2018, the National Assembly decided to delay indefinitely the debate on and adoption of the controversial draft Law on Special Administrative and Economic Zones. The law aimed to loosen regulations on foreign investors, permitting them to lease land in the Van Don, Bac Van Phong, and Phu Quoc Special Administrative and Economic Zones for up to 99 years. The National Assembly’s decision followed widespread protests against the proposed law.  

Some investors have encountered difficulties amending investment licenses to expand operations onto land adjoining existing facilities. Investors also note that local authorities may intend to increase requirements for land-use rights when current rights must be renewed, particularly in instances when the investment in question competes with Vietnamese companies.

Intellectual Property Rights (IPR)

The legal basis for IPR includes the 2005 Civil Code, the 2005 Intellectual Property (IP) Law as amended in 2009, the 2015 Penal Code, and implementing regulations and decrees. Vietnam has joined the Paris Convention on Industrial Property and the Berne Convention on Copyright; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the Patent Cooperation Treaty; the Madrid Protocol; and the International Convention for the Protection of New Varieties of Plants. It has worked to meet its commitments under these international treaties. The Vietnamese government has ratified the revised Trade-Related Aspects of Intellectual Property Rights protocol, which took effect on January 23, 2017.  On January 1, 2018, the 2015 Penal Code entered into force with clearer guidelines on the application of criminal penalties for certain acts of IPR infringement or piracy. For the first time, commercial entities can be liable for violations. On June 12, 2018, the National Assembly passed a new Law on Competition, eliminating outdated IP-related unfair competition provisions and bringing guidelines in line with Vietnam’s other IP laws. The government also issued Decree No. 22/2018/ND-CP, which replaced a 2006 regulation and updated copyright guidelines under the Civil Code and Law on IP. However, enforcement agencies still lack clarity and experience in how to impose criminal penalties on IPR violators and continue to wait for further implementing guidelines. On June 19, 2018, the Prime Minister issued Directive No. 17/CT-TTg to strengthen the fight against smuggling, commercial fraud, and the production and trade of low-quality foods and fake goods, pharmaceuticals, and cosmetics.

Circular No. 16/2016/TT-BKHCN, which amends and supplements a number of articles of Circular No. 01/2007/TT-BKHCN, one of the core regulations in the Vietnam IP system, came into force on January 15, 2018. IP attorneys expect the circular will have a significant, positive impact on patent and trademark examination procedures, but also expect further revisions in 2019 and in the IP Law revision. The National Assembly ratified the CPTPP on November 2, 2018, and Vietnam intends to amend laws, including the Law on Intellectual Property, to align with the international treaty by 2021. With technical support from the World Intellectual Property Organization (WIPO), Vietnam in 2017 also completed a National Strategy for Intellectual Property to create a roadmap for promoting innovation and a more effective IP framework by 2030.

Although Vietnam has made progress in establishing a legal framework for IPR protection, significant problems remain and new challenges are emerging. The country remains on the Special 301 Watch List. The rate of unlicensed software in Vietnam is still high, at 74 percent, according to the Software Alliance’s latest data, representing a commercial value of USD 492 million. In 2018, Vietnam had mixed results in its efforts to protect IPR. Vietnam’s continued integration into the global economic community, as well as increasing domestic pressure for IP protections, may stimulate positive change. Nevertheless, infringement and piracy remained commonplace, and the impact of digital piracy and the increasing prevalence of counterfeit goods sold online continued to undermine the IPR environment. The increasingly sophisticated capabilities of domestic counterfeiters, coupled with developing smuggling routes through Vietnam’s porous borders, were also worrisome trends. There are ten ministries sharing some level of responsibility for IPR enforcement and protection, which often leads to duplication or confusion. Additionally, the roles and power of these ministries and agencies varies widely. In October 2018, the MOIT upgraded the Market Surveillance Agency, the country’s leading IP enforcement agency, to the Directorate of Market Surveillance (DMS). The move requires all 63 provincial-level market surveillance departments to report directly to the national agency rather than to local provincial governments, improving coordination and efficiency among enforcement agencies.

In 2018, the Intellectual Property Office of Vietnam (IP Vietnam) reported receiving 108,375 IP applications of all types (an increase of 5.9 percent compared to 2017), of which 63,617 were registered for industrial property rights (up 8.7 percent compared to 2017). IP Vietnam reported granting 2,212 patents in 2018 (up 27 percent from 2017). Industrial designs registrations reached 2,360 in 2018 (up 4.1 percent from 2017). In total, IP Vietnam granted more than 29,040 protection titles for industrial property, out of more than 63,617 applications in 2018 (up 8.1 percent from 2017). The DMS processed 6,149 counterfeit and IP infringement cases and collected USD 5,500 in fines.  The most infringed products were agricultural materials, agricultural and pharmaceutical products, and spare automobile parts.  

The Copyright Office of Vietnam received and settled seven copyright petitions, and received and settled 12 requests for copyright assessment in 2018. In 2018, the Ministry of Culture, Sports, and Tourism Inspectorate carried out inspections for software licensing compliance and discovered 46 violations that resulted in fines of USD 58,000, a 15 percent decrease in fines from 2017.

For more information, please see the following reports from the U.S. Trade Representative:

Special 301 Report:

https://ustr.gov/issue-areas/intellectual-property/special-301/2018-special-301-review  

Notorious Markets Report: https://ustr.gov/sites/default/files/files/Press/Reports/2017 percent20Notorious percent20Markets percent20List percent201.11.18.pdf 

For additional information about national laws and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/  .