What Is a Trademark?
According to Article 4, The Intellectual Property Law 2005 (Amended & Supplemented 2009) of Vietnam, a Trademark/Mark means any sign used to distinguish goods or services of different organizations or individuals.
(i) Collective mark means a mark used to distinguish goods or services of members of an organization which is the owner of such mark from marks of non-members of such organization.
(ii) Certification mark means a mark which is authorized by its owner to be used by another organization or individual on the latter’s goods or services in order to certify the origin, raw materials, materials, mode of manufacture of goods or manner of provision of services, and the quality, accuracy, safety or other characteristic of goods or services bearing such mark.
(iii) Integrated marks means identical or similar marks registered by the same entity and intended for use on products or services which are of the same, similar or interrelated type.
(iv) Well known mark means a mark widely known by consumers throughout the territory of Vietnam.
General conditions for marks to be eligible for protection
(1) Distinctiveness of marks
A mark shall be deemed to be indistinctive if it is a sign falling into one of the following categories:
(a) Simple shapes and geometric figures, numerals, letters or scripts of uncommon languages, except where such sign has been widely used and recognized as a mark;
(b) Conventional signs or symbols, pictures or common names in any language of goods or services that have been widely and regularly used and known to many people;
(c) Signs indicating time, place and method of production; category, quantity, quality, properties, ingredients, use, value or other characteristics descriptive of goods or services, except where such sign has acquired distinctiveness by use before the filing of the application for registration of the mark;
(d) Signs describing the legal status and business sector of business entities;
(dd) Signs indicating the geographical origin of goods or services, except where such sign has been widely used and recognized as a mark or registered as a collective mark or certification mark as stipulated in this Law;
(e) Signs other than integrated marks which are identical with or confusingly similar to registered marks of identical or similar goods or services on the basis of applications for registration with earlier filing dates or priority dates, as applicable, including applications for registration of marks filed pursuant to a treaty of which the Socialist Republic of Vietnam is a member;
(g) Signs identical with or confusingly similar to another person’s mark which has been widely used and recognized for similar or identical goods or services before the filing date or the priority date, as applicable;
(h) Signs identical with or confusingly similar to another person’s mark which has been registered for identical or similar goods or services, the registration certificate of which has been invalidated for no more than five years, except where the ground for such invalidation was non-use of the mark pursuant to sub-clause (d) of article 95.1 of this Law;
(i) Signs identical with or confusingly similar to another person’s mark recognized as a well known mark which has been registered for goods or services which are identical with or similar to those bearing such well known mark, or for dissimilar goods or services if the use of such mark may affect the distinctiveness of the well known mark or the mark registration was aimed at taking advantage of the reputation of the well known mark;
(k) Signs identical with or similar to another person’s trade name currently in use if the use of such sign may cause confusion to consumers as to the origin of goods or services;
(l) Signs identical with or similar to a protected geographical indication if the use of such sign may mislead consumers as to the geographical origin of goods;
(m) Signs identical with, containing or being translated or transcribed from protected geographical indications for wines or spirits if such sign has been registered for use with respect to wines and spirits not originating from the geographical areas bearing such geographical indications;
(n) Signs identical with or insignificantly different from another person’s industrial design which has been protected on the basis of an application for registration of an industrial design with a filing date or priority date earlier than that of the application for registration of the mark.
(2) Signs ineligible for protection as marks
- Signs identical with or confusingly similar to national flags or national emblems.
- Signs identical with or confusingly similar to emblems, flags, armorial bearings, abbreviated names or full names of Vietnamese State bodies, political organizations, socio-political organizations, socio- politico-professional organizations, social organizations or socio-professional organizations or with international organizations, unless permitted by such bodies or organizations.
- Signs identical with or confusingly similar to real names, aliases, pseudonyms or images of leaders, national heroes or famous personalities of Vietnam or foreign countries.
- Signs identical with or confusingly similar to certification seals, check seals or warranty seals of international organizations which require that their signs must not be used, unless such seals are registered as certification marks by such organizations.
- Signs which cause misunderstanding or confusion or which deceive consumers as to the origin, properties, use, quality, value or other characteristics of goods or services.
*According to Article 4, 72, 73, 74, The Intellectual Property Law 2005 (Amended & Supplemented 2009) of Vietnam*
