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Vietnam (VN)

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Jan 30, 2018 (Newsletter Issue 2/18)
Significant Amendments in IP Laws
The fourth amendment to the IP laws of Vietnam comes into force on January 15, 2018. Circular No. 16/2016/TT-BKHCN (also called Circular No. 16), which was issued on June 30, 2016 by the Ministry of Science and Technology of the Government of Vietnam which amends as well as supplements a number of articles of Circular No. 01/2007/TT-BKHCN (also called Circular 01). The amended circular No. 16 is a critical guidance document for implementing IP laws in Vietnam. These amendments are effective from January 15, 2018.

The amended circular has a major impact on the Intellectual Property practice followed in Vietnam as it modifies almost 49 out of 67 points present in the currently followed circular No. 1.

Further, these modifications will resolve certain issues and concerns and align the IP laws of Vietnam with International IP system. The modifications mostly apply on the examination procedures conducted by National Office of Intellectual Property (NOIP) of Vietnam related to Patents, Trademarks, copyrights, Designs and other IPR. These provisions will also create favorable conditions for applicants for obtaining IP rights in Vietnam.

Below mentioned are some of the important amendments and supplements provided by the Circular No. 16 related to examination process of general regulations and trademarks:

1. General Regulations
- Revision of time limits for filing response to Office Action
The time frame to respond to an office action concerning Formality Examination will now be 2 months instead of 1 month.
The timeframe to respond to an office action concerning substantive examination will now be 3 months instead of 2 months.
The deadline for the payment of registration fee will be 3 months instead of 1 month.
- Appeals and their settlements
Addition of new facts/details in application will not be accepted at the appeal stage. However, on the request made by the applicant or appellant, NOIP may re-examine such new facts/details. The amended circular allows the appeals settlement body to seek opinions of independent experts if the appealed case has a degree of complexity.
- Decisions on Refusal
On getting a decision of refusal after substantive examination, the applicants can overcome the same by submitting new facts/details which were not considered in the examination and the NOIP may consider withdrawing the decision of refusal. The applicants do not have to lodge an appeal against the decision of refusal.

2. Key changes on trademarks
- Rights to object to disclaimers of the NOIP within three months from the notification date
- Response to office action regarding international application
In cases where, the Madrid application is rejected by NOIP, the applicant, has a three-month period to respond to the provisional refusal by NOIP, and then 90 days to appeal the decision on refusal.
- Recognition of well-known marks
through the settlement of enforcement or opposition/examination of a trademark that is identical/confusingly similar to the concerned mark.
- The modified circular expressly clarifies the type of organizations that can register collective marks, which was not mentioned in the earlier circulars.


Source: Khurana & Khurana Advocates and IP Attorneys, India

Jan 11, 2017 (Newsletter Issue 1/17)
Official Fees Increased
The Ministry of Finance of Vietnam has issued a Circular (No. 263/2016/TT-BTC) stipulating the official fees to be collected by the National Office of Intellectual Property of Vietnam (NOIP) for industrial property-related activities with effect from January 1, 2017. These fees will apply to patent, utility solution, industrial design, trademark, geographical indication and integrated circuit layout design applications received by the NOIP.

As of January 1, 2017, the official fee for filing a trademark application is VND 1,000,000 for one class for up to 6 items of goods/services. Each further class in the same application is VND 880,000 and each extra item of goods/services exceeding 6th is VND 170,000. The fee for registration is VND 120,000 and the fee for publication is VND 240,000 (for one class for up to 6 items of goods/services).

Source: Spruson & Ferguson, Singapore and Daitin & Associates Co., Vietnam


Jun 04, 2010 (Newsletter Issue 11/10)
New Law on Trade Names Passed
The Vietnamese government has passed a new law to regulate the company registration procedure and prohibit a company from using, as its name, a trade name, trademark and/or geographic indication belonging to another entity.

The new law, which also includes a new mechanism to resolve trade name disputes, is effective 1st June 2010.


Source: www.pham.com.vn

Dez 07, 2009 (Newsletter Issue 1/09)
Official Fees Increased
On June 19th, 2009, the National Assembly of Vietnam passed the Law on amendment to a number of articles of the Law on Intellectual Property (Law 2009). Law 2009 will come into effect from January 1st 2010. There were several changes to copyright and related rights.

With regard to industrial property rights, the Law 2009 clarifies the "first to file" principle: In Law 2005, there was no clear guideline on what to do when one person submits more than one application for the same invention; or registers several marks that are identical or similar to the extent there might be confusion when they are used for identical or similar products or services. This matter is settled by Law 2009. Accordingly, if several registration applications are submitted by one person in order to register identical marks used for identical products or services, a protection title shall be granted based on the valid application with the earliest priority or filing date among the applications which satisfy all conditions for the grant of a protection title.

Law 2009 states that administrative penalties may be applied upon the occurrence of acts of infringement of intellectual property rights which cause damages to the author or the holder of intellectual property rights (or customers of the community); the notification to defaulting party is no longer required (Article 211.1.b).

To protect domestic providers of intellectual property representation, Law 2009 affirms that foreign law firms practicing in Vietnam are prohibited from providing these services. Law 2009 also requires more conditions applied to organizations providing intellectual property assessment services and individuals practicing intellectual property assessment (Article 154.1).



Legal basis is the Intellectual Property Law 2005, in force since July 1, 2006, as revised under the Law No. 36/2009/QH12, in force since January 1st, 2010.
All trademarks registered in South Vietnam before April 30th, 1975, are not protected in present Vietnam.
Vietnam is a member of the Madrid Agreement and the Madrid Protocol.
Trademark protection is obtained by registration. However, the existing trademark law protects unregistered trademarks if the mark is recognised as a well-known mark.
Nice classification, 11th edition
Registrable as a trademark are all distinctive and graphically representable signs, such as words, names, acronyms, letters, numbers, devices, combinations or shades of colours, three-dimensional forms and any combination of the mentioned signs. Slogans are registrable as trade marks in Vietnam provided they are distinctive either inherently or upon proof of acquired distinctiveness and non-descriptive.
The following trademark types are registrable: trademarks, service marks, associated marks, collective marks, certification marks, trade names.
The application is filed at the National Office of Intellectual Property (NOIP).
Multiple-class applications are possible.
Foreign applicants need a local agent.
A power of attorney is necessary.
Notarisation and/or legalisation of PoA is no longer required.
Foreign applicants do not need a domestic registration.
Vietnam follows the "first-to-file" principle.
The application for trademark registration will undergo following steps: a formality examination will be done within one month from the filing date. If the application is accepted as to the formalities, the application data will be published in the Official Gazette of Industrial Property. This shall be done within two months from the date of acceptance as to formality. Within the following 9-12 months, the application will undergo a substantive examination as to make a decision of refusal or grant of the protection by the trademark office. During this time, any third party may file an official opposition. On average, the time frame for obtaining trademark registration in smooth cases is approx. 12-15 months from the date of filing.
After grant of Trademark Registration Certificate, the mark shall be published in the gazette and recorded in the National Register of Industrial Property.
National:
Applications may be opposed at any time after the publication date and before issuance of the registration certificate.

Details regarding the Opposition Period against designation of IR Mark are available in our publication on this topic here
A trademark registration is valid for 10 years from the filing date of application.
The registration is renewable for periods of 10 years.
The grace period for renewals is 6 months from the expiration date of the trademark.

Further practical details are available in our publication on this topic here
If the trademark has not been used within 5 years from registration or has not been used later for 5 consecutive years, cancellation actions may be filed. If a mark has not been used for 5 years and no cancellation action is taken against it, then, in principle, the mark is protected.

Further practical details are available in our publication on this topic here
The official fee for filing a trademark application is VND 1,000,000 for one class for up to 6 items of goods/services. Each further class in the same application is VND 730,000 and each extra item of goods/services exceeding 6th is VND 150,000. The fee for registration is VND 120,000 and the fee for publication is VND 240,000 for the first class and VND 100,000 for each additional class.
Practical details on licensing procedures, requirements and effectiveness are available in our publication on this topic here.
Country Index is a free service of SMD Group. We thank the following law firms for their assistance in updating the information provided.

Country Survey
Jan 22, 2018
Daitin & Associates Co., Ltd., Ho Chi Minh, Vietnam

Dez 12, 2016
Daitin & Associates Co., Ltd., Ho Chi Minh, Vietnam

Jun 25, 2013
Vision & Associates , Hanoi, Vietnam

Jun 29, 2011
Pham & Associates, Hanoi, Vietnam
Russin & Vecchi, Ho Chi Minh City, Vietnam



Tri Viet & Associates

No. 372, Cau Giay Street, Cau Giay District
100000 Hanoi
Vietnam (VN)

Daitin & Associates Co., Ltd.

19 Hoang Dieu Str., Ward 12, District 4
084 Ho Chi Minh
Vietnam (VN)

Tra & Associates

7 Van Mieu
10000 Hanoi
Vietnam (VN)

National Office of Industrial Property of Vietnam (NOIP)
384 - 386 Nguyen Trai Street
Thanh Xuan
Hanoi
Vietnam
Tel +84 4 85 83 069
Fax +84 4 85 84 002
Mail congnghethongtin@noip.gov.vn, vietnamipo@noip.gov.vn
www.noip.gov.vn

World Intellectual Property Organization (WIPO)
34, Chemin des Colombettes
1211 Geneva 20
Switzerland
Tel +41 22 33 89 11 1
Fax +41 22 73 35 42 8
www.wipo.int