Abstract: Trademarks and trademark protection are sensitive issues in Vietnam’s current commercial landscape. This article clarifies the role of trademarks and the necessity of trademark protection in Vietnam at a time when the country actively engages in negotiating new-generation FTAs and expanding import-export markets.
Starting from the effective date of the ASEAN Free Trade Agreement for Vietnam in 1993 when Vietnam joined ASEAN, issues of intellectual property rights in general and trademark protection were urgently raised during the process of trade integration within the region and internationally. In response to these needs, the Law on Intellectual Property of Vietnam was enacted in 2005, providing a solid foundation for individuals/organizations both domestic and foreign to continue their development. Among them, trademark protection is one of the most important provisions of intellectual property law.
What is trademark protection?
Trademark protection (or “establishing ownership rights for trademarks”) and legal protection of the unique nature of a “trademark” aim to respect the research achievements of the owner and help customers/consumers distinguish products of different trademarks. A trademark that meets the criteria for trademark protection under Vietnamese law is granted exclusive, comprehensive, and long-term protection under the law. Any trademark that does not violate prohibited provisions of the law has the right to apply for protection and is entitled to legal protection.
According to Article 87 of the current Law on Intellectual Property, individuals and organizations have the right to register trademarks for their produced goods, supplied goods, and services in the market. In the case where individuals or organizations register a trademark for goods they introduce to the market but do not produce themselves, they must ensure that the trademark is not objected to by the producer and is not the trademark used by the producer for the product.
Role and function of trademarks
In commerce, especially international trade, trademarks play a crucial role in the trade of goods and services, particularly as Vietnam is a member of the WTO (World Trade Organization) along with numerous FTAs and new-generation FTAs. The function and role of trademarks and trademark protection in the situation of Vietnamese trade and the region, in general, are increasingly enhanced.
Firstly, trademarks serve the function of helping customers recognize products in a highly competitive market, while also helping individuals/organizations identify their products in the market. A uniquely branded product in the market increases its recognition among customers and consumers, and enhances the likelihood that they will continue to use products under that trademark. At the same time, recognizing one’s own product in the market allows individuals/organizations to compare, evaluate, and research the market for their own products.
Secondly, an exclusive trademark motivates companies to invest in maintaining or improving the quality of their products to ensure that the branded products have a good reputation. Therefore, registering a trademark helps individuals/organizations focus and dedicate themselves to promote the trade of a reputable branded product, and even meet the conditions to be recognized as a “well-known trademark” under Vietnamese law.
The necessity of trademark protection in Vietnam
Trademark protection plays an important role in ensuring the fulfillment of trademark functions as mentioned above.
First and foremost, trademark protection allows individuals/organizations to have the exclusive ownership of a trademark, recognized and protected by the law in the long term and comprehensively. Another individual/organization can only use that trademark when the individual/organization transfers the right to use (license) the trademark or franchises the protected trademark to other businesses, organizations, or individuals, thereby creating additional income for the enterprise.
Secondly, trademark protection plays a role in preventing unfair trade practices such as counterfeiting and imitation of trademarks with low-quality products to undermine the reputation of the brand and/or increase the consumption of non-genuine products for personal gain.
Trademark protection has some distinct characteristics compared to other forms of ownership rights due to the principles of the first-to-file and territoriality.
The first-to-file principle is a legal principle that only protects the entity that submits the earliest application for registration for the same subject matter of industrial property rights, such as inventions, trademarks, industrial designs, etc., rather than the first person to create the trademark. Secondly, the territorial principle means that Vietnamese intellectual property law does not protect trademarks outside the territory of Vietnam. For a trademark that has been registered in Vietnam, if it is necessary to export it abroad, the trademark owner must continue to register the trademark in the foreign country. In this regard, trademark owners can consider applying through the Madrid system, of which Vietnam is a member.
Conclusion
Vietnamese intellectual property law, although relatively new compared to intellectual property laws from other countries, is actively being improved to meet the needs of individuals and organizations both domestically and internationally in trade and commerce. In the future, as Vietnam enforces and continues to negotiate FTAs, it will further enhance its intellectual property legal system, providing a solid framework for the import-export activities of businesses.
TA CHI
