TRADEMARK
A trademark consists signs that are used to distinguish goods and services of the same kind made by different producers. A trademark can be expressed by words, images or combination thereof in one or several colors. (Art. 785 The Civil Code).
Protection title for an trademark is the trademark registration certificate with the term of validity beginning on the date grant expiring at the end of 10 years counted from the official filing date and renewable indefinitely for consecutive terms of 10 years.
The “first to file” principle is also applied for trademark protection in Vietnam, accordingly the trademark registration will be granted to the person who first filed the trademark application.
However, the “first to file” principle shall not apply to cases of well-known marks under the Paris Convention or those which have been widely used and recognized. In such cases, the priority will be given to the person who can prove that his trademark has been well-known or been widely used and recognized, without subject to the “first to file” principle.
Well-known trademarks are protected in Vietnam without subject to registration, under the Paris Convention of which Vietnam is a member. However, unfortunately, the current rules do not provide for statutory criteria for determining a well-known trademark. Therefore, in practice, the determination of whether a trademark being well known is much depending on the NOIP’s examiners. In absence of the statutory requirements for a trademark to be deemed well-known, the NOIP usually bases on the following factors for determination: (1) quality of consumers being aware of the mark, (2) territories in which the products/services bearing the mark have been sold/provided, (3) the sale revenue and quality of the products/services sold or provided, (4) time of continuos use of the mark, (5) reputation of the products/services under the mark, and (6) the number of countries where the mark has been protected.