Trademark in Vietnam
Given that Vietnam is a “first-to-file” country, trademark registration is required in order to gain protection and property rights for it. Well-known trademarks, however, may sometimes be protected even if they have not yet been registered.
Registration of trademarks is required with the Vietnam National Office of Intellectual Property (NOIP).
Overview
Member of the Madrid Protocol is Vietnam. As a result, this nation is able to extend a worldwide trademark registration under the Madrid System. Click here for more details on our trademark filing services using the Madrid System.
In Vietnam, trademark applications and registrations are not required to be in use. Nonetheless, prolonged earlier use of the mark may demonstrate developed uniqueness and, as a result, aid in dispelling claims of lack of distinctiveness.
While previous use of the trademark is not a requirement for registration, it must be utilised within five years of registration in order to avoid termination for non-use. To meet this criteria, just a little quantity of usage is required.
After formality review, the application will be submitted for publication in the Official Gazette of Intellectual Property. Then, if they so want, other parties may bring opposition proceedings against the application. The trademarks office will conduct a substantive examination concurrently, which will be finished in 9 months. The registration of the mark will be approved upon the completion of this examination, provided no objections or conflicts have been submitted.
If you register a combination trademark in Vietnam (one that has both word and figurative features), your exclusive right to use the trademark is restricted to using it exactly as it was submitted and registered. It is advised that you file for a different trademark that only includes the word or figurative features you intend to use and protect separately. This is true if you wish to use the word element of your trademark separately from the logo (or vice versa).
Nevertheless, you will have the right to oppose the application on the grounds of confusing resemblance if a third party subsequently wants to register or use a trademark for comparable products or services that contains a major or separate component or portion of your trademark. Depending on the specifics of each case, many conditions will affect the odds of an opposition's victory.
A registered trademark in Vietnam is valid for ten (10) years from the filing date. After then, it may be renewed forever for further ten-year terms. The renewal may be requested up to six (6) months before the expiry date and up to six (6) months after it. Late renewal costs will be charged if the renewal is requested after the expiration date.
Basic procedure for obtaining a Vietnam trademark registration :-
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Formal assessment
The trademark application as it has been submitted must undergo a formality examination within one month of the filing date; however, in reality, this time frame may be extended by an additional one to two months owing to the Trademark Office's workload.
During this procedure, the trademark application will be checked for correctness, appropriate categorization of products and services, and other factors. The applicant will have one month to revise or correct the trademark application if it is refused because it does not meet the formal requirements.
The NOIP will issue a Decision on Acceptance as to Formality for the Trademark Application if the trademark application complies with all formality requirements. All pertinent details of the trademark application must be properly documented.
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Release of the Application
Within 02 (two) months of the signing date of the Acceptance Date, the application is then published in the National Gazette for oppositional purposes. Every third party has the right to register an objection to a pending application with the NOIP between the publication date and the day when a decision on the grant or denial of a certificate of trademark registration is issued.
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In-depth investigation
After that, the application is evaluated for registrability to see if it satisfies the requirements for protection, such as uniqueness, availability, etc. The outcome is anticipated to be ready within nine months after the publication date.
If the trademark satisfies the requirements for protection after the substantive examination, the NOIP will issue a Decision on Intention to Grant a Certificate of Trademark Registration and ask the applicant to pay the registration fee. In contrast, the NOIP must issue a Notice of Refusal and allow the applicant two months to reply if it does not fulfil protection conditions.
If the applicant fails to respond to the NOIP's notification in a timely manner or the NOIP rejects the filed answer, the NOIP will issue a decision refusing to issue a certificate of trademark registration and will allow the applicant 90 (ninety) days to file an appeal.
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Enrollment
Within one month after the signing date of the Decision on Intention to Grant a Certificate of Trademark Registration, the fees for granting and publishing must be paid. If the fee is not paid by the specified deadline, the application will be permanently rejected. Whereas, the NOIP will issue a Certificate of Trademark Registration and send the original to the applicant if payments have been paid in full.
The legal protection of a trademark in Vietnam starts on the day the certificate of trademark registration is issued, lasts ten (10) years from the filing date, and is renewable for further ten-year periods of time.
The registered trademark need not have been in use in Vietnam at the time of registration, but it is subject to expunction if it is not used for five (5) years running backward from the date on which a third party requests that the registration's validity be terminated. Nonetheless, the mark will probably escape invalidation if it is used or re-used at least three months before the date of the request for termination.
The trademark application as it has been submitted must undergo a formality examination within one month of the filing date; however, in reality, this time frame may be extended by an additional one to two months owing to the Trademark Office's workload.
During this procedure, the trademark application will be checked for correctness, appropriate categorization of products and services, and other factors. The applicant will have one month to revise or correct the trademark application if it is refused because it does not meet the formal requirements.
The NOIP will issue a Decision on Acceptance as to Formality for the Trademark Application if the trademark application complies with all formality requirements. All pertinent details of the trademark application must be properly documented.
Within 02 (two) months of the signing date of the Acceptance Date, the application is then published in the National Gazette for oppositional purposes. Every third party has the right to register an objection to a pending application with the NOIP between the publication date and the day when a decision on the grant or denial of a certificate of trademark registration is issued.
After that, the application is evaluated for registrability to see if it satisfies the requirements for protection, such as uniqueness, availability, etc. The outcome is anticipated to be ready within nine months after the publication date.
If the trademark satisfies the requirements for protection after the substantive examination, the NOIP will issue a Decision on Intention to Grant a Certificate of Trademark Registration and ask the applicant to pay the registration fee. In contrast, the NOIP must issue a Notice of Refusal and allow the applicant two months to reply if it does not fulfil protection conditions.
If the applicant fails to respond to the NOIP's notification in a timely manner or the NOIP rejects the filed answer, the NOIP will issue a decision refusing to issue a certificate of trademark registration and will allow the applicant 90 (ninety) days to file an appeal.
Within one month after the signing date of the Decision on Intention to Grant a Certificate of Trademark Registration, the fees for granting and publishing must be paid. If the fee is not paid by the specified deadline, the application will be permanently rejected. Whereas, the NOIP will issue a Certificate of Trademark Registration and send the original to the applicant if payments have been paid in full.
The legal protection of a trademark in Vietnam starts on the day the certificate of trademark registration is issued, lasts ten (10) years from the filing date, and is renewable for further ten-year periods of time.
The registered trademark need not have been in use in Vietnam at the time of registration, but it is subject to expunction if it is not used for five (5) years running backward from the date on which a third party requests that the registration's validity be terminated. Nonetheless, the mark will probably escape invalidation if it is used or re-used at least three months before the date of the request for termination.
Required documents of trademark applciations in Vietnam :-
The mark application shall consist of the following documents:-
A request made in prescribed form (as prescribed in the Circular No. 01/2007/TT-BKHCN);
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Documents, samples, information identifying the mark as provided for in Articles 105 of the IP Law 2005 of Viet Nam (e.g. the mark samples and list of goods and services bearing the mark, and regulations on use of collective or certification marks where the mark is sought for protection is collective mark or certification mark;
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Power of attorneys, if the application is filed through a representative;
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Documents evidencing the right to registration, if acquired by the applicant from another person;
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Documents evidencing the priority right, if claimed;
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Receipt of fees and charges.
Trademark Fees in Vietnam :-
Search prices First class $100.00 - Each additional class $90.00
The price is for wordmarks only. If the trademark includes a figurative element (logo), an additional fee of 30 USD per class will apply.
Application prices First class $520.00 - Each additional class $450.00
The description of goods/services includes up to 6 items per class; beyond that, additional charges will apply.
Once the trademark is accepted, a final fee for registration will be due: First class $380 - Each additional class $310
FAQ :-
1. How long does it take to register a trademark in Vietnam?
Trademark registration time is about 12-18 months from the date of acceptance of valid application. Term of trademark protection: Trademarks are protected for 10 years from the filing date (priority date). Enterprises can renew their protection titles and there is no limit on the number of renewals.
2. What is trademark opposition in Vietnam?
Opposition can be filed at any time before the grant of protection for the trademarks. Hence, provided that the opposition is filed before the grant of protection for the trademarks, original POA can be submitted later, normally 1 month from the filing date of the opposition action.
3. What is the weakest trademark?
Generic. Finally, a generic mark is the weakest form of a mark because it simply uses the word of the good or service as its trademark.
4. Do foreigners pay tax in Vietnam?
Yes, expats pay tax in Vietnam. Individuals working in Vietnam (including foreigners) have to pay personal income tax (PIT) based on their tax residency.
5. Does trademark in Vietnam need proof of use after successful registration?
After or when receiving protection certificate, the holder does not need proof of use for trademark in Vietnam. However, the trademark must be used practically and when having a request, the owner is required to prove their use of trademark in Vietnam by proving that the holder has carried out trading actions with their trademark such as advertising, establishing business locations and especially providing customers with their items/services. If the trademark has not been used by its owner or the licensee of the owner without justifiable reason for five consecutive years, the effectiveness of the trademark shall be terminated upon request of other third party.
In conclusion, although the owner does not need to prove the use of their trademark, they must use their trademark in fact. When they do not use it for five consecutive years, if having evidences, a third party could terminate the rights to their trademark in Vietnam.6. What is rules of Trademark in Vietnam?
Today, trademark rules of almost nations across the world are “first to file” and “first to use” which are the basis to have rights of a trademark of the owner. Hence, knowing the trademark rule of a nation is very essential with the owner of a trademark to determine the time when they have rights.
Vietnam applied the rule “first to file”, which is the same with many countries such as Laos, Cambodia, South Korea, Canada, Thailand, China, the EU, Indonesia, Japan, Philippines, meaning that the person, who files a Vietnam trademark application firstly, shall have prior rights with that trademark, no matter how long others use it. Hence, the use for a trademark is not the evidence to prove that you have rights for such trademark.
Therefore, individuals and organizations must file trademark applications in Vietnam as soon as possible to enjoy rights with their trademark.
7. What is rights of trademark holders after successfully registering trademark in Vietnam?
Today, an increasing number of individuals and organizations are granted certificates for their trademark in Vietnam. However, after receiving certificates, the holder needs to know which rights they have and how they can use the trademark and settle the infringement with the trademark.
In Vietnam, the holder’s trademark is protected in 10 years from the time of filing the trademark application. Moreover, the holder may renew the protection certificate for unlimited times with 10 years per time with necessary documents including power of attorney and original certificate of registration. In case of that the renewable date has expired, 6 months is a grace period for registration renewal.
In addition, the trademark holder has rights to use their trademark in Vietnam, oppose the subsequent conflicting application, bring a cancellation action against a subsequent conflicting registration, sue for infringement against confusingly similar third party trademark use, license other third parties to use the trademark, apply for seizure by customs authorities for importation of counterfeit goods and obtain damages for infringement.
Therefore, knowing which rights they have after having certificates is very important for individuals and organizations to protect their rights and settle the infringement related to their trademark.
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