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 Trade mark application in Vietnam as compared other State members.
However, practically, for filing a Trade mark 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 Trademarkregistration 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.
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