The legal protection of Trademark is based on the principle of territoriality. That means each nation is free to regulate the use of intellectual property on its own territory. For instance, it can only grant protection titles to the domestic brands while denying foreigners. In order to overcome such problems, nations around the world have been reaching and signed a number of international treaties which was built on the principle of territoriality. There was a remarkable achievement that nations established certain rules that all member States must respect. Member States shall protect trademarks of companies of other member States as if they were his own citizen (so called principle of national treatment). In other words, assuming that Vietnam and France are member States, Vietnam is bound to treat French enterprises the same rules that it applies to Vietnamese firms. As a consequence, there are not any differences in principle when filing a Trademark application in Vietnam as compared other State members. However, practically, for filing a Trademark application in Vietnam, there might some additional requirements or language of necessary documents as following:
1. Right to register marks: According to Article 89 Law on intellectual, foreign individuals not permanently residing in Vietnam and foreign organizations and individuals without production or business establishments in Vietnam could not file applications for Trademark registration by themselves but through their lawful representatives in Vietnam by POA (Power of Attorney).
2. Solving the language barrier: Foreign individuals permanently residing in Vietnam and foreign organizations and individuals whose production or business establishments are in Vietnam could file applications for Trademark by themselves. However, the language barrier might be the problem because Applicants shall fill a standard form in Vietnamese and submit this form to the NOIP accompanies by documents evidencing the registration right, the priority right or other documents supporting the application. All these documents could be made in another language but shall be translated into Vietnamese at the request of the State administrative body for industrial property rights.
To be accepted, the sample of the Trademark must be clearly described by words in order to clarify elements of the mark and the comprehensive meaning of the mark, if any; where the mark consists of words or phrases in a foreign language, such words or phrases must be translated into Vietnamese.
3. Time for request your priority claim: Priority claim shall not be automatically recognized in Vietnam, therefore the claim for the priority right must be clearly stated in the application accompanied by a copy of the first application certified by the first IP office.
4. Applying “First to use” or “first to file” principle: In Vietnam, “first to file” principle is applied, that is far cry from so-called “first to use” countries. The “first to file” principle means rights in a trademark generally are acquired only through registration therefore a trademark owner can apply to Trademark registration without having used it anywhere and at any time. Kindly be advised that if you come from the United States, the Philippines, Australia, and New Zealand where trademark rights are generally acquired through use.
All in all, these treaties built up a harmonized system that benefits the international firms to protect their Trademark outside of the home nation. The local qualified Intellectual property Agent might support the international firms in overcoming the barrier of language and these additional requirements.
ANT Lawyers - Law firm in Vietnam is supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property in Vietnam. We have specialized in the preparation and registration of patents, trademarks and designs for our clients.
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