CONDITIONS FOR PROTECTION OF MARKS

03/07/2021 15:04

The marks is a sign to discern goods, service of other organizations, persons. Industrial property rights to mark is established base on decision of state management agency to industrial property. In order to awarded protection titles, marks need to satisfy conditions forr protection of marks about capable of distinguishing and visible sign.

I. Basis legal
- Law on intellectual property 2005
- Decree no. 103/2006/ ND-CP detailing and guiding the implementation of a number of articles of the law on intellectual property regarding industrial property
- Decree no. 122/2010/ND-CP amending and supplementing a number of articles of the government's decree no. 103/ 2006/ND-CP of september 22, 2006, detailing and guiding a number of articles of the law on intellectual property regarding industrial property
- Circular no. 01/2007/TT-BKHCN guiding the implementation of the governments decree no. 103/2006/ nd-cp of september 22, 2006, detailing and guiding the implementation of a number of articles of the law on intellectual property regarding industrial property
- Circular no. 18/2011/TT-BKHCN amending and supplementing some provisions of the circular no. 01/2007/tt-bkhcn, of february 14, 2007, being amended and supplemented by the circular no. 13/2010/tt-bkhcn, of july 7, 31, 2010 and the circular no. 01/2008/tt-bkhcn, of february 25, 2008, being amended and supplemented by the circular no. 04/2009/tt-bkhcn, of march 27, 2009
II. Content
          According article 72 law amending and supplementing a number of articles of the law on intellectual property 2009, conditions for protection of marks including:
1. It is a visible sign in the form of letters, words, drawings or images including holograms, or a combination thereof, represented in one or more colours.
          It mean conditions for protection of marks about visible sign of marks have to observable with the eye and showing through letters, words, drawings…
2. It is capable of distinguishing goods or services of the mark owner from those of other subjects.
          A mark shall be deemed to be distinctive if it consists of one or more easily noticeable and memorable elements, or of many elements forming an easily noticeable and memorable combination, and does not fall into the cases stipulated follows as:

          - 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;
          - 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;
          - 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;
          - Signs describing the legal status and business sector of business entities;
          - 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;
          - 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;
         - 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;
         - 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;
        - 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;
        - 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;
        - 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;
        - 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;
      - 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.
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