Vietnam: Trademarks Comparative Guide

Last Updated: 21 May 2019
Article by Le Quang Vinh
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1 Legal framework

1.1 What is the statutory or other source of trademark rights?

  • The Paris Convention for the Protection of Industrial Property;
  • The Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks;
  • The Madrid Agreement Concerning the International Registration of Marks;
  • The Agreement on Trade-Related Aspects of Intellectual Property Rights;
  • The Law on Intellectual Property of 2005, as amended in 2009;
  • The Penal Code of 2015, as revised in 2017; and
  • The Civil Code of 2015.

1.2 How do trademark rights arise (ie, through use or registration)?

In accordance with the first-to-file principle, Vietnam sets out in Article 6 of the IP Law that trademark rights shall be generated and established only on the basis of:

  • a decision of the competent state body to grant a protection title or;
  • the recognition of international registration pursuant to an international treaty to which Vietnam is a signatory.

Thus, the rights afforded to a mark by a particular registration certificate will establish the scope of protection of that mark enjoyed by the registrant.

However, in the case of a well-known mark, IP rights shall be established based on use, without any need for registration. Similarly, according to international practices and norms, the IP rights in a trade name are established based on its lawful use in commerce without registration.

Regardless of Vietnam's adoption of the first to file principle, IP rights over unregistered marks, trade names or business indications – namely trade dress, slogans, packaging and so on – may in limited cases may be protected and enforced in Vietnam as though they had been registered in the form of a trademark or industrial design. These exceptional provisions aim to comply with the Paris Convention provisions on preventing IP-related acts of unfair competition.

The burden of proving that a mark or trade name is well known, or that an act of unfair competition in relation to the same has occurred, rests with the holder of the mark or name.

1.3 What is the statutory or other source of the trademark registration scheme?

  • Decree 103/2006/ND-CP of 22 September 2006 as revised by Decree 122/2010/ND-CP detailing and guiding the Implementation of a number of articles of the IP Law (Decree 103, as revised);
  • Decree 105/2006/ND-CP of 22 September 2006 as revised by Decree 119/2010/ND-CP detailing and guiding the Implementation of a number of articles of the IP Law with respect to protection of industrial property rights (Decree 105, as revised); and
  • Circular 01/2007/TT-BKHCN of 14 February 2007, as revised latest by Circular 06/2016/TT-BKHCN of 30 June 2016 guiding the implementation of Decree 103, as revised (Circular 01, as revised).

2 What constitutes a trademark?

2.1 What types of designations or other identifiers may serve as trademarks under the law?

To be eligible for registration as a trademark, a mark must be a visible sign in the form of letters, words, drawings or images, including holograms, or a combination thereof, represented in one or more colours

2.2 What are the requirements for a designation or other identifier to function as a trademark?

To be eligible for registration as a trademark, a mark must satisfy the following conditions:

  • It is a visible sign in the form of letters, words, drawings or images, including holograms, or a combination thereof, represented in one or more colours;
  • It is capable of distinguishing the goods or services of the mark owner from those of others; and
  • It is neither confusingly similar to earlier marks nor misleading or deceptive to consumers as to the origin or other characteristics of the goods or services to which it relates.

2.3 What types of designations or other identifiers are ineligible to function as trademarks?

A mark will be refused protection if it constitutes a sign that is prohibited from protection under Section 73 of the IP Law or if it is not deemed distinctive (absolute grounds for refusal). Such signs include the following, among others:

  • signs which are identical or confusingly similar to national flags or national emblems;
  • signs which are identical or confusingly similar to emblems, flags, armorial bearings, abbreviated names or full names of Vietnamese state bodies, political organisations, socio-political organisations, socio-political-professional organisations, social organisations, socio-professional organisations or international organisations, unless permitted by such bodies or organisations;
  • signs which are identical or confusingly similar to real names, aliases, pseudonyms or images of leaders, national heroes or famous personalities of Vietnam or foreign countries;
  • signs which are identical or confusingly similar to certification seals, check seals or warranty seals of international organisations which require that their signs not be used, unless such seals are registered as certification marks by such organisations; and
  • signs which cause misunderstanding or confusion, or which deceive consumers as to the origin, properties, use, quality, value or other characteristics of the goods or services.

3 Registration procedure

3.1 Which governing body (ie, trademark office) controls the registration process?

The National Office of Intellectual Property of Vietnam (NOIP), an agency under the Ministry of Science and Technology, is responsible for receiving applications and granting trademark protection.

3.2 What fees does the trademark office charge for an application, during prosecution and for issuance of a registration?

The official fee for filing one trademark/one class/up to six items is $45.50; the fee for issuance of registration is $18.

3.3 Does the trademark office use the Nice Classification scheme?

Yes. Vietnam applies the Nice Classification, 11th Edition.

3.4 Are ‘class-wide' applications allowed, or must the applicant identify the specific goods or services for which the mark will be used?

Yes, ‘class-wide' applications are allowed without restriction, even if the trademark has not been used for the specific goods or services and a bona fide intent to use has not been confirmed; albeit that such applications must comply with the Nice Classification

3.5 Must an applicant have a bona fide intention to use the trademark for the goods or services identified in the application in order to apply for registration?

No.

3.6 Does the trademark office perform relative examination of trademark applications (ie, searches for earlier conflicting marks)?

Yes.

3.7 What types of examinations does the trademark office perform other than relative examination?

Before examining a mark for both absolute and relative grounds for refusal, NOIP will check whether the mark complies with the formality standards (eg, applicant's information, classification, payment of fees), which takes about one month.

3.8 Apart from confusion with a senior mark, descriptiveness and genericness, are there other grounds under which a mark is ineligible for registration, such as public policy reasons?

In addition to genericness, which has been not yet incorporated into the IP Law, other grounds for refusal include descriptiveness, misleading or deceptive nature, or other public policy reasons. Section 73(5) of the IP Law prohibitions registration of a mark which causes misunderstanding or confusion or which deceives consumers as to the origin, properties, use, quality, value or other characteristics of goods or services, a provision which may be interpreted broadly. Section 7 – which states that "the exercise of intellectual property rights must not infringe the interests of the State, the public interest or the legitimate rights and interests of other organizations and individuals, and must not breach other relevant provisions of law" – may further apply.

Registration of marks comprised of foreign words other than those in Latin characters – for example, in Chinese, Russian or Thai – is often refused, except where a transliteration is added thereto. However, a mark comprised of a surname may be registered, unless there is evidence that such surname lacks distinctiveness.

3.9 Is there a separate or supplemental register on which descriptive marks may be registered?

There is no separate or supplemental register for descriptive marks. However, descriptive marks may still be accepted for registration if they have acquired distinctiveness through use before the trademark application is filed.

3.10 Can a third party object to registration of a mark before the application has been published (eg, by letter of protest to the trademark office)?

A third party cannot object to registration (eg, through a letter of protest to NOIP) to registration of a mark before the application is published; it must await publication of the mark in Gazette A, confirming its formal acceptance by NOIP, before opposing it.

3.11 Must the applicant use the trademark commercially in order to obtain a registration?

No. However, a registered mark may be vulnerable to invalidation if a third party can show that it has not been used for a consecutive period of five years.

3.12 How much time does it typically take from filing an application to the first office action?

If NOIP's check for compliance with the formality standards reveals that the application has shortcomings or irregularities, an office action is usually issued within one month of filing. An office action at the stage of substantive examination may be issued within between 14 months and 20 months from the date of publication in Gazette A, depending on NOIP's workload at the time.

3.13 How much time does it typically take from filing an application to publication?

It typically takes about two to three months from filing of an application until publication of the application, where no office action is issued

4 Appeals

4.1 If the trademark office refuses registration, can the applicant appeal? If so, to what body and by what procedure?

Where NOIP issues an office action (a provisional refusal of protection), the applicant may submit a first appeal arguing that the mark is eligible for protection. If NOIP is not satisfied by this response, it will issue a decision confirming refusal. The applicant can appeal this decision before NOIP's Appeal Settlement and Enforcement Division. However, for Madrid-based applications, the first appeal will be handled by NOIP's Geographical Indication and International Trademark Division, which handles Madrid applications.

4.2 What is the procedure for appealing a trademark office refusal?

For both national applications and international (Madrid-based) applications, if NOIP issues notification of refusal or notification of provisional refusal of protection (issued by the Trademark Division or the Geographical Indication and International Mark Division, respectively), the applicant has the right to submit a review to the department which issued that notification within three months (extendable for a further three-month term upon payment of a prescribed charge) of the date of issuance or from the date of NOIP sending notification.

If NOIP's notification is upheld, the applicant may submit a further review to another independent department under NOIP – the Appeal Settlement and Enforcement Division – within 90 days (non-extendable) of the date of issuance of the review decision.

4.3 Can the reviewing body's decision be appealed? If so, to what body and by what procedure?

If the review decision is upheld, the applicant may appeal to the Ministry of Science and Technology, under which NOIP operates, within 30 days of the date of issuance of the Appeal Settlement and Enforcement Division's decision; or may initiate an administrative lawsuit before the courts within one year of the date of receipt of that decision.

5 Oppositions

5.1 Can a third party oppose a trademark application?

Yes.

5.2 Who has standing to oppose a trademark application?

Under Article 112 of the IP Law, any organisation or individual has the right to oppose a pending trademark, without any need to demonstrate a related interest or right.

5.3 What is the timeframe for opposing a trademark application?

A third party may oppose a trademark application from the date the application is published in the Official Gazette of Industrial Property until the date a decision on grant is issued.

International applications designating Vietnam are not republished in Vietnam at present. However, in the authors' experience, the timeframe for opposition is deemed to run from the date of publication in the World Intellectual Property Organization Gazette until the date on which Vietnam, as a designated country, must notify the World Intellectual Property Organization of its ex officio examination result.

5.4 Which body hears oppositions?

The NOIP Trademark Division is in charge of hearing oppositions.

5.5 What is the process by which an opposition proceeds?

If NOIP considers that an opposition is unfounded, it will not serve the opposition upon the applicant and will notify the third party that it will not consider the opposition, specifying its reasons.

If NOIP considers that an opposition may be well founded, it will notify the applicant accordingly within one month of the date of receipt of the written opposition and request a response from the applicant within a maximum timeframe of one month.

Upon receipt of the applicant's counterstatement, and if NOIP considers it necessary, NOIP shall notify the third party of the counterstatement and request an additional opposition from the third party within a maximum timeframe of one month.

NOIP shall review the evidence and arguments provided by both the third party and the applicant, and the data included in the application, in making its decision.

If NOIP considers it necessary and if the parties so request, NOIP may organise direct discussions between the third party and the applicant in order to clarify the matters they have raised.

5.6 Can the decision on the opposition be appealed? If so, to what body and by what procedure?

No. NOIP's notice of settlement of an opposition is final and is not subject to appeal. If the third party is dissatisfied with this decision, it must wait until the mark has been registered and then file a cancellation action.

6 Rights of registered and unregistered marks

6.1 What, if any, protection is afforded to unregistered trademarks?

In principle, no unregistered trademark is protected, unless it has been become well known in Vietnam.

The use of a mark in a way that causes confusion with a commercial indication (including an unregistered mark) in respect of business entities, business activities or the commercial origin of goods or services is in practice viewed as a type of likelihood of confusion, but it is governed by the anti-unfair competition regime under the IP Law (Section 130).

6.2 What legal rights are conferred by a trademark registration?

In accordance with the first to file principle, Article 6 of the IP Law provides that trademarks shall be generated and established only based on:

  • a decision of the competent state body to grant a protection title; or
  • the recognition of international registration pursuant to an international treaty to which Vietnam is a signatory.

For that reason, the rights afforded to a mark by a particular registration certificate will establish the scope of protection enjoyed by the registrant.

As provided by the IP Law, a trademark owner has the following rights:

  • to use or permit others to use the registered trademark;
  • to prohibit others from using the registered trademark; and
  • to dispose of the registered trademark.

6.3 If there is a separate register for descriptive marks, what legal rights are conferred by registration therein?

There is no separate register for descriptive marks. Descriptive marks are usually refused protection unless they have acquired distinctiveness (secondary meaning) through use in commerce.

7 Enforcement and remedies for trademark infringement

7.1 What remedies are available against trademark infringement?

Depending on the nature, extent and scope of the infringement, the remedies available to a trademark holder may take the form of a civil court judgment (civil measures), an administrative violation handling decision (administrative measures) or even a criminal court judgment (criminal measures).

7.2 What remedies are available against trademark dilution?

No concept of dilution or trademark dilution is provided in the IP Law. In practice, an applicant may register its trademark on a class-wide basis, or in multiple classes, in an attempt to prevent possible dilution. Alternatively, it may seek to have its trademark recognised as famous or well known, as in such case the trademark may be protected against use on dissimilar goods or services to those for which it has been registered.

7.3 Does the law recognise remedies against other harms to trademark rights besides infringement and dilution?

No.

7.4 What is the procedure for pursuing claims for trademark infringement?

In the event of infringement, the trademark owner should:

  • conduct investigations and gather evidence of infringement against allegedly infringing parties;
  • prepare and obtain infringement appraisals from VIPRI – an accredited quasi-governmental organisation which will investigate and issue an appraisal confirming infringement, where founded. This optional procedure involves seeking expert opinions and witness opinions; and
  • seek an enforcement remedy in the form of administrative measures, a civil lawsuit or criminal prosecution of the infringers.

7.5 What typical defences are available to a defendant in trademark litigation?

A registered trademark may be unenforceable if one of the following defences is successfully established:

  • no likelihood of confusion;
  • exhaustion (first sale doctrine);
  • use of a mark which is identical or similar to a protected geographical indication, where such mark had acquired protection in an honest manner before the date of filing of the application for registration of the geographical indication; and
  • honest use of a mark comprising a person's name, or which is descriptive of the type, quantity, quality, utility, value, geographical origin or other property of the goods or services.

A registered trademark may further be temporarily unenforceable where an alleged infringer's request for invalidation or cancellation of the mark is accepted by NOIP and there is reason to believe that this request is well founded, while the settlement of this request by NOIP or other competent authorities is pending.

7.6 What is the procedure for appealing a decision in trademark litigation?

If NOIP issues notification of refusal or notification of provisional refusal of protection (issued by the Trademark Division or the Geographical Indication and International Mark Division, respectively), the applicant has the right to submit a review to the department issued that notification within three months (extendable for a further three-month term upon payment of a prescribed charge) of the date of issuance or from the date of NOIP sending notification.

If NOIP's notification is upheld, the applicant may submit a further review to another independent department under NOIP – the Appeal Settlement and Enforcement Division – within 90 days (non-extendable) of the date of issuance of the review decision.

If the review decision is upheld, the applicant may appeal to the Ministry of Science and Technology, under which NOIP operates, within 30 days of the date of issuance of the Appeal Settlement and Enforcement Division's decision; or may initiate an administrative lawsuit before the courts within one year of the date of receipt of that decision.

8 Maintenance and removal of registrations

8.1 What is the length of the initial term of registration and what is the length of renewal terms?

A trademark registration remains valid for a term of 10 years as from the filing date and may be renewed indefinitely for further 10-year periods thereafter by filing a renewal application in the six months prior to the expiry date. In practice, a premature renewal request (eg, one year before the due date) will normally be accepted by NOIP without shortening the term of registration.

8.2 What, if anything, must be submitted to the trademark office to maintain or renew a registration?

Proof of use of a registered mark is not required as a prerequisite for renewal. However, as noted in question 3.11, a registered mark without use in commerce may be vulnerable to invalidation by a third-party request for invalidation based on five years' consecutive non-use.

8.3 What are the grounds for cancelling a trademark registration?

A potential claimant may seek invalidation or cancellation of a trademark registration on the grounds of Section 95 (invalidation) or Section 96 (cancellation). If an invalidation claim succeeds, the trademark will be declared invalid from the time an effective decision is issued. If a cancellation claim succeeds, the trademark registration shall be deemed void ab initio.

For claims based on Section 95, a registered mark may be invalidated on the following grounds:

  • The renewal fee was not paid in due time;
  • The trademark owner has relinquished its industrial property rights pertaining to the registered mark; or
  • The trademark owner no longer exists and does not have a lawful heir.

For claims based on Section 96, a registered mark may be cancelled on the following grounds:

  • The applicant did not have and was not assigned the right to register such mark; or
  • At the time of grant, the registered mark did not satisfy the conditions for protection.

8.4 Under what circumstances may the trademark office cancel a registration on its own initiative?

In theory, only where no renewal fee is paid may NOIP cancel a registration on its own initiative. However, as there are no specific provisions on this matter, in practice there have been no instances in which a registered mark has been declared invalid by NOIP.

8.5 What is the procedure by which a third party may seek cancellation of a trademark registration?

Any organisation or individual may request NOIP to invalidate or cancel a trademark registration by submitting a written request along with the legal grounds, relevant evidence and requisite fee. This request shall be initially accepted by NOIP's Appeal Settlement and Enforcement Division.

8.6 What is the procedure for appealing a decision cancelling a registration?

A trademark owner can appeal NOIP's decision to cancel a trademark registration before the upper body of NOIP (ie, the Ministry of Science and Technology) within 30 days of issue of NOIP's decision, or may initiate an administrative lawsuit before a Hanoi-based court within one year of the date of receipt of NOIP's decision.

9 Licensing

9.1 Are there particular requirements, such as quality control by the licensor, for a trademark licence to be valid?

The IP Law contains no provisions on quality control by the licensor where a trademark licence is issued.

9.2 Must trademark licences be recorded with the trademark office or other governing body?

No. However, if a licence is not registered, use by the licensee shall be not legally recognised as use in commerce by the licensor, which may lead to a possible non-use invalidation action by a third party.

9.3 Can a licensor lose its rights in a trademark by failing to comply with its obligations under the licence, such as maintaining quality control?

No.

10 Protection of foreign trademarks

10.1 Under what circumstances may foreign trademarks not registered in the jurisdiction be enforced (eg, under unfair competition law)?

Foreign trademarks which have not been registered in Vietnam may be enforced in Vietnam if they constitute either well-known marks under Sections 6(3)(a), 75 and 129(1)(d) of the IP Law or commercial indications protectable under the anti-unfair competition provisions of Section 130 of the IP Law (see question 6.1).

10.2 Does the trademark office permit registration of a mark based on a foreign or international (Madrid) registration?

Vietnam is a signatory to both the Paris Convention and the Madrid Agreement and Madrid Protocol. Accordingly, a foreign applicant may file a trademark application in Vietnam claiming a priority date based on the filing date of its foreign application/registration, provided that the Vietnamese application is filed within six months of the filing date of foreign application/registration. For Madrid applications designating Vietnam, a claim for priority date must be included.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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