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Amendments to Trademark Laws

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Aug 25, 2022 (Newsletter Issue 12/22)
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Significant Changes to IP Law

On 16 June 2022, Vietnam's National Assembly approved a comprehensive revision of Vietnam's IP Law ("Amended IP Law"). This represents a significant change to Vietnam's IP Law, affecting 80 of 222 articles and introducing 12 new articles. Apart from a few provisions, the Amended IP Law will take effect on 1 January 2023.

The most significant changes are outlined below:

Introduction of protection of sound marks / inclusion of ground for refusal
Sound marks are among the signs that can be protected as trademarks. They must be capable of being presented in graphic representations.
Article 73.7 was supplemented to include ground for refusal of sound marks that comprise “copies [in whole or part] of copyrighted works”, unless the consent of the copyright owners is obtained.

Definition of well-known mark modified
The definition of a well-known mark has been modified to “widely known by the relevant sectors of the public in the territory of Vietnam”. Further, the well-known status must be acquired before the filing date of a later trademark to serve as grounds for refusal of such later mark. The recognition of a trademark as well-known might be determined based on either several or all of the eight criteria indicated in Article 75.

Reduction of time limit for expired mark to be used to refuse later marks
The time limit for an expired mark to be used to prevent a later-filed trademark from being protected has been shortened to three instead of five years.

Suspension of examination procedures of trademarks during cancellation or invalidity proceedings
Under the Amended IP Law, applicants are entitled to request Vietnam’s IP Office to halt trademark examination procedures of their marks to wait for the outcome of the related non-use cancellation or invalidation proceedings.

“Bad Faith” is officially available as ground for opposition and invalidation
The Amended IP Law recognizes the act of “bad faith” as an independent legal ground to oppose and invalidate a trademark application or registration.

New grounds to refuse pending trademark and for termination/invalidation of registered marks

- Refusal: Two more grounds to refuse pending applications have been added:
(i) the use of the name of a plant variety that has been or is being protected in Vietnam if such sign is registered for goods that are a plant variety of the same or similar species or a product of the same species harvested from plant varieties; and
(ii) the use of names and images of characters or figures in works covered by copyright protection of others that were widely known before the filing date of the application.

- Termination: Two more grounds for termination of the validity of a registered trademark have been added:
(i) such registered trademark has become the common (generic) name of goods or services bearing that registered trademark; and
(ii) the use of a protected trademark by the owner of the trademark or by a person authorized by the owner misleads consumers as to the nature, quality, or geographical origin of the goods or services.

- Invalidation: Two new legal grounds for invalidating a registered trademark have been added:
(i) a registered trademark may be partly or entirely cancelled if the applicant for that trademark is ruled to have bad faith; and
(ii) the revision or modification of a trademark application has broadened or changed the nature of the originally filed trademark.

More detailed reasons to refuse three-dimensional trademarks
The Amended IP Law provides additional grounds and clarifies the grounds for refusal of three-dimensional trademarks.

Parallel procedures of trademark opposition and third-party opinions
The Amended IP Law introduces a new mechanism allowing a third party to oppose a trademark application, in addition to share written opinions during the examination procedures. The opposition can be filed within five months from the date of publication of the trademark application.

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