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Amendments to Trademark Laws

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Sep 25, 2023 (Newsletter Issue 8/23)
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New Decree Details the 2022 IP Law

On August 23, 2023, the Vietnamese government issued Decree No. 65/2023/ND-CP. It took immediate effect upon issuance and provides long-awaited, necessary guidance for implementation of the IP Law, which took effect on January 1, 2023. Some of the most critical provisions of Decree 65 include the following:

Establishment of Industrial Property Rights

Procedures for Establishment: The procedures for the establishment of IP rights are set out including the procedures related to PCT applications for inventions and Madrid applications for trademarks, and the (newly added) procedures related to Hague applications for industrial designs. The decree confirms that registration certificates can be issued in electronic form and in paper form. However, hard copy registration will only be issued under explicit request in the application.

Amendment: For amendment of a trademark specimen, only minor disclaimed elements can be removed, if such removal does not alter the distinctiveness of the registered mark. The documents required for amendment of trademark registration are simplified.

Assignment: New provision are added regarding the limitation to the transfer of trademark rights that may cause confusion as to the properties or origin of the goods bearing the trademark.

Opposition: While both oppositions and third-party opinions can be submitted against national applications, there is no opposition procedure under the Decree for Madrid applications designating Vietnam. Only the third party opinion scheme is available for the application’s examination, as a source of reference.

Enforcement of Industrial Property Rights

Determination of Acts, Nature, and Extent of Infringement: Amendments are introduced to the definition of acts conducted on the internet considered as infringement in Vietnam with greater specificity. The grounds to determine the factors constituting infringement have been extended to include the Extract of the National Registrar of Industrial Property.

Determination of Damage: Detailed grounds for the determination of property damage and moral damage are provided.

Process of Handling IP Infringement: The handling of infringing goods is now implemented either upon the decision of the relevant authorities or upon the request of the owner of the IP rights. This brings an additional avenue for action, rather than the implementation of such measures solely at the discretion of the authorities.

Procedure for Control of Imported and Exported Goods Related to Industrial Property: Specific details are added regarding the authority, order, and procedures for proactively suspending customs procedures of goods that show clear signs of infringement.

Assessment of Infringement: New regulations on the procedure of conducting IP assessment (expert opinion).