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Third party observation regarding the Trademark Registration Certificate

One of the new highlights of the revised Vietnamese  Law on Intellectual Property in 2022 is the provision relating to third party observation regarding the Trademark Registration Certificate according to the provisions of Article 112 and Article 112a about third party observations related to objection to trademark registration applications in particular and industrial property rights in general.

Significance of the provision of a third party observation regarding the Trademark Registration Certificate

This new regulation is extremely important in establishing a legal basis related to third parties’ opinions about trademark registration applications under expertise in Vietnam, including:

  • Third party observation is a procedure that allows public comments on a trademark registration application, based on which, the NationalOffice of IntellectualProperty (NOIP) decides on the applications being expired. The third party observation is considered as a reference source for the examiner in the application expertise process.
  • Objection is an administrative procedure that allows a third party to challenge the validity of a trademark registration application and, on that basis, request the NOIP that refuses to grant a trademark registration certificate to the object stated in the application, provided that the objector must indicate the legal basis to prove his claim.

Comparison of differences between third party observations regarding the grant and the objection to a Trademark Registration Certificate

The timelimit for implementing third party observations

Third party observation regarding the objection to the grant of a Trademark Registration Certificate

The fundamental difference between the two provisions above is the period for third party observation. If you want to file an objection to grant a trademark protection title, you must file within 05 months from the date of the trademark application is published in the Industrial Property Official Gazette.

Third party observation regarding the grant of a protection title

When you discover that a third party trademark conflicts with your pre-registered trademark but the above 05 months time limit for an objection has passed, you still have the right to submit your observation to the NOIP to consider granting or not granting a trademark protection title through the procedure of “Third party observation on granting a protection title” from the date of the trademark application is published to the date of the NOIP issues a decision to grant a protection title to the trademark applying for registration.

Compare the similarities and differences between the two procedures involving third party observation

Similarities between the two procedures

  • Before the date of issuing the decision to grant a Trademark Registration Certificate, any third parties have the right to observe or right to opposite to the grant of a Trademark Registration Certificate.
  • Relevancy of interests is not required to submit third party observations or objections (any third parties that are not necessarily a party with related rights and interests have the right to observe the trademark registration application through one of the above two mechanisms).
  • All must be made in writing, stating the legal basis, analyses, and arguments for their observations.
  • These two procedures are a clear legal basis for the public to observe the granting of an exclusive right to a trademark, which the public must respect if they believe that the trademark applied for registration seems to be conflicted, negatively affected, or did not satisfy the condition for protection.

Differences between the two procedures

Criteria Third party observation

(Article 112)

Objection

(Article 112a)

Fee No fees charged Fees must be paid
Duration Third party observation may be submitted during the expertise of the trademark, provided that such observation must be submitted before the NOIP issues a decision on granting the Trademark Registration Certificate. Objections are only allowed to be filed within 05 months from the date of publication of the trademark registration application and before the date of issuing the decision to grant the Trademark Registration Certificate.
Procedure The NOIP only accepts the third party observation, but may not respond or has to establish its procedures to deal with the third party observation. The NOIP accepts oppsitions, issues the number of objections, and must establish a mechanism, and procedures for handling objections as an independent procedure (similar to the procedure for terminate, cancel, or appeal).
Nature It is only a source of reference information for the processing of handling the industrial property registration application (observations are a source of reference only). It is a separate, independent procedure, similar to other procedures such as termination, invalidation, or appeal.

The new regulation specifically regarding third party observation has contributed to the distinction between the objection procedure and third party observation to solve problems in applying the process to handle those two types of opinions. Accordingly, the long period for receiving third party observations has been overcome, leading to a prolonged application handling process, not to mention the case that the third party abused this procedure to interfere with the issuance of the Trademark Registration Certificate.

Clients wishing to conduct the procedure for third party observation regarding the Trademark Registration Certificate, please contact Viet An Law Firm for the fastest support at the most reasonable cost!

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