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Trademark registration conflicts with copyright in Vietnam

Trademark and copyright are two subjects of intellectual property rights, in fact, the conflict between trademark and copyright is quite common in many countries around the world and is becoming a negative problem in Vietnam.

Status quo on trademark registration conflicts with copyright in Vietnam

In fact, there are more and more cases of theft of intellectual property (copying protected works) of others to register as trademarks. The situation of this person’s logo (trademark, image) or applied art work being registered as a trademark by speculative entities is no longer a rare phenomenon. Many trademark rights holders have been forced to sit at the negotiating table with speculators to negotiate and accept the acquisition of their trademarks at unimaginable prices.

Legal provisions on handling trademark registration in conflict with copyright in Vietnam

The regulation takes effect by 01/01/2023

  • Vietnamese law stipulates in Article 17 of Decree 103/2006/ND-CP on “Respect for the right to pre-establishment” as follows: Industrial property rights may be invalidated or prohibited from use if they conflict with the intellectual property rights of other pre-established organizations or individuals.
  • Thus, if there are sufficient documents and evidence proving the rights to the work protected as copyright established before the time of filing the trademark application, in principle, you can request the National Office of Intellectual Property of Vietnam to invalidate someone else’s registered trademark.
  • However, in practice, this provision is only a document under the law, without any detailed instructions and in most cases of objection or invalidation of trademarks based on this law are not considered, because it is believed that all provisions on the refusal or cancellation of trademarks must be enshrined in the Law on Intellectual Property.

The regulation takes effect 01/01/2023

  • According to the new provisions added in Article 74.2(p) of the amended Law on Intellectual Property in 2022, it can be considered as an institution to effectively resolve the issue of intellectual property encroachment, i.e the conflict between trademark and copyright. This is perhaps the most awaited law by trademark rights holders.
  • Thus, under the Intellectual Property Law 2022, a trademark applying for registration if “containing a copy of the work” is protected as copyright will be considered not be distinguishable and not meet the standards of protection.
  • With this provision, it is permissible to do so if a work satisfies the requirements for protection in the form of copyright and the right to the work protected by copyright arises or is pre-established, it can be used as grounds to refuse the trademark to apply for registration.
  • This Law is an important legal basis to effectively prevent intellectual property theft, the filing of trademark applications with malicious intent, and at the same time, create more favorable conditions for trademark and copyright owners to reclaim intellectual property rights through protest procedures, third party opinions and/or trademark cancellation.

The above article presents the landmark of updated Intellectual Property Law on trademark registration conflicts with copyright in Vietnam. If you want to register a trademark in Vietnam, register a trademark abroad, please contact Viet An Law for the best support!

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