According to Clause 1(d), Article 95 of the Intellectual Property Law, if the mark has not been used by its owner or the licensee of the owner without justifiable reason for five (5) consecutive years prior to a request for termination of validity, except where use is commenced or resumed at least three (3) months before the request for termination, the validity of a protection title shall be terminated.
So, what is the legitimate use of trademarks in Vietnam
According to Article 125.5 of Intellectual Property Law, using trademark in Vietnam means the performance of the following acts:
- Affixing the protected mark on goods, goods packages, means of business, means of service provision, transaction documents in business activities;
- Circulating, offering, advertising for sale or stocking for sale goods bearing the protected mark;
- Importing goods or services bearing the protected mark.
The definition of the use of trademarks is further clarified in Article 21, Decree of the Government No. 103/2006/ND-CP. Based on this Article, “circulation” of products stipulated in Clause 5(b) of Article 124 of Intellectual Property Law which includes the sale, display for sale or transportation of products.
The applicant can provide evidence of the widespread use of the mark. For example, start time, scope, level of use … in which the mark is only considered “used” when the use is made in the production, business, trade, advertising, legal marketing. In this case, the evidence will be considered valid if the mark is present in the evidence in the correct form as the mark applied for or is not materially different from the mark applied for. Generally, evidence is considered appropriate to justify the use of a trade mark, such as transaction papers, contracts, registered trade marks, and service facilities. Labeling orders, brochures in fact ….
