VietnamBelow is information that will help you protect your trademark rights.
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table of contents
Trademark rights in Vietnam (Regarding trademarks that can be registered)
*Revised law will come into effect from January 2023, 1*
(1) Trademark in Vietnam
It is defined as "a sign used to identify the goods or services of different organizations and individuals."
``A registrable mark is a visible mark expressed in one or more colors in the form of letters, words, pictures, photographs, holograms or a combination thereof, or an audible mark expressed in graphic form. The mark must be unique and must be able to distinguish the trademark holder's goods or services from those of others.''
*Some of the so-called new types of trademarks, such as "mere colors and not combinations with letters or figures," "smell," "taste," "moving trademarks," etc., cannot be registered as trademarks. Can not.
(2) Special trademark
- collective trademark
- certification trademark
- combined trademark
Trademark rights in Vietnam (from application to registration)
(1) Creation of rights
- Registration principle
- First-to-file principle
(2) Term of existence
- 10 years from the filing date (trademark protection begins from the registration date)
- Renewable every 10 years → Applications can be made from 6 months before the expiry of the term (by paying a premium fee, you can apply for renewal 6 months after the expiration of the term)
- A power of attorney must be submitted when renewing.
(3) Classification (goods or services)
- 1 application multi-division system adopted
- Adopted international classification (34 categories of goods, 11 categories of services)
- Retail service system (Class 35) available
*If you specify 7 or more products or services within 7 categories, official fees will be added for each item from the 7th category (excluding MadoPro).
(4) Application documents
- ①Application form
- ②Trademark sample (need to submit 6 copies)
- ③ Power of attorney (notarization/certification not required)
- ④Priority certificate (if claiming priority)
*Procedural language is Vietnamese
(5) Examination
- ①Formal examination
A formality examination will be conducted on the application documents.
In the event of a violation of the rules, a notice will be issued requesting correction or supplementation with a period for response. If the notification is not responded to or the deficiencies are not corrected, a notification of reasons for refusal of the application will be issued. - ②Substantive examination
After formality examination, substantive examination will be conducted.
If the requirements for registration are not met, a notice of reasons for refusal will be issued, specifying a period for response.
If there is no response to the notice of reasons for refusal or if the reasons for refusal are not resolved, a decision of refusal will be made. The applicant may request an appeal against the decision of refusal within 90 days from the date of issuance of the decision.
If the registration requirements are met, or if the reasons for refusal are resolved by a written opinion or amendment, a decision to register will be issued.
(6) Publication of application
If the application passes the formality examination, the application will be published in the gazette within two months from the date of notification of formality acceptance.
(7) Objection
- Any person may file an opposition within five months from the publication date of the application.
- Apart from this opposition, information provision procedures are also possible from the date of publication of the application until the date of the decision on registration.
(8) Judgment system
- ① Appeal against decision of refusal
- ② Invalidation trial
- ③Non-use cancellation trial
(Any person can request cancellation if it has not been used for 5 years.Cancellation can be made for each product/service)
*＜Average examination period in Vietnam＞ *As of June 2018
Currently, the examination period from application to registration is approximately 16 to 18 months unless there are reasons for refusal.
(9) Other
| Formality examination OA response period | 2 months |
| Substantive examination OA response period | 3 months |
| Excuse for expiration of office deadline | If the applicant submits an appeal along with evidence proving that the procedure could not be completed within the prescribed deadline due to force majeure or objective obstacles, and the examiner approves, the procedure after the office deadline has expired will be approved. |
| Response procedure in lieu of appeal | If you have received a decision of refusal and there are new facts or details that were not taken into consideration at the examination stage and may affect the examination result, you may submit these instead of filing a request for appeal. It is possible to. NOIP will cancel the decision of refusal and consider reexamining the application. |
| Handling of new facts or details at trial stage | Submissions of new facts or details will not be accepted. If there are new facts or details, there is a possibility that the application will be reexamined at the request of the applicant/petitioner. *However, the definition of "new facts or details" and procedural rules regarding reexamination have not yet been published. |
| Objection to disclaimer request | If NOIP requests you to disclaim certain elements in the composition of your trademark, you can file an opposition within 3 months. |
| Service of notice of request for appeal | NOIP will send a notice of appeal to the trademark right owner within one month from the date of receipt of the appeal request form. |
| Registration fee payment period | 3 months |
| Substantive examination OA response procedure when Vietnam is designated in MADOPRO | You can respond with a written opinion etc. within 3 months from the date of refusal. If the reasons for refusal are still not overcome by the response, a decision of refusal will be notified. An appeal can be filed within 90 days. |
Dealing with rights infringement (trademark infringement)
“Trademark infringement” in Vietnam refers to the following acts:
- Using a sign that is the same as a registered trademark on the same goods or services as the registered trademark without the permission of the trademark right holder.
- Using a sign that is identical or similar to a registered trademark on goods or services that are identical to, similar to, or related to the designated goods or services pertaining to the registered trademark without the permission of the trademark right holder. provided, however, that such use is likely to cause confusion as to the source of the goods or services.
Dealing with rights infringement (remedies)
Organizations and individuals who infringe on the trademark rights of others will be subject to civil, administrative, or criminal sanctions depending on the content and extent of the infringement (Article 199(1) of the Intellectual Property Law). .
① Civil remedies (Article 202 of the Intellectual Property Law) The court will take the following civil remedies against organizations and individuals who commit acts of infringement of intellectual property rights.
- Injunction against infringing acts
- Reputation correction and apology
- Fulfillment of civil obligations
- Restitution for Damages
- To compel the destruction, non-commercial distribution or use of goods, materials and equipment primarily used in the creation or trade of goods infringing intellectual property rights. provided, however, that such distribution and use does not affect the exercise of rights by intellectual property rights owners.
② Administrative remedies (Articles 211 and 214 of the Intellectual Property Law)
(i) Organizations and individuals who commit the following acts that infringe on intellectual property rights shall be subject to administrative violation penalties and corrective measures based on the Act on Administrative Violation Disposition.
- Intellectual property infringement causing loss to owners, consumers or society
- Producing, importing, or exporting counterfeit products, or entrusting these activities to others
- Producing, importing, or exporting stamps, labels, or other goods bearing counterfeit trademarks, or commissioning others to do so;
(ii) Organizations and individuals who commit the following acts of infringement of intellectual property rights shall be subject to the following corrective measures:
- Forced distribution or use for non-commercial purposes of intellectual property infringing products or tools, raw materials, or manufacturing materials used in the manufacture or trade of intellectual property infringing products. provided, however, that such distribution and use does not affect the exercise of rights by intellectual property rights owners.
(iii) There are two main administrative agencies that control counterfeit products:
- Industrial Property Audit Bureau
Because it has jurisdiction over all of Vietnam, it is easy to use when counterfeiting acts spread across Vietnam. - Market Management Bureau of the Ministry of Industry and Commerce
It is the most commonly used institution when seeking administrative punishment, has a large number of cases, and is capable of speedy processing. However, since they are established for each market, their jurisdiction is limited to that market.
③ Criminal remedies (Article 212 of the Intellectual Property Law)
Basically, penalties such as a warning or a fine will be taken against the infringer depending on the violation.
About Madpro application
- Similar to domestic applications, examination will be conducted on absolute grounds for refusal and relative grounds for refusal.
- There are two types of reasons for rejection: those that reject the whole thing and those that reject a part of it.In the case of a partial rejection, even if you leave it without responding, the parts that are not subject to rejection will remain as they are. Registration is approved.
- Applicants who do not have a domicile or business office in Vietnam must respond through a qualified representative in Vietnam.
| Substantive examination OA response procedure when Vietnam is designated in MADOPRO | (New) You can respond with a written opinion, etc. within 3 months from the date of refusal. If the reasons for refusal are still not overcome by the response, a decision of refusal will be notified. An appeal can be filed within 90 days. |
treaty
The status of membership in the main treaties is as follows:
| treaty of paris | WTO agreement | trademark law treaty | madpro | nice agreement |
| Join | Join | Not a member | Join | Not a member * |
*International classification adopted