1. Definition
A mark means any sign used to distinguish goods and/or services of different organizations or individuals.
2. General conditions for marks eligible for protection
A mark shall be protected when it satisfies the following conditions:
Ø Being a visible sign in the form of letters, words, drawings or images, including holograms, or a combination thereof, represented in one or more colors;
Ø Being capable of distinguishing goods or services of the mark owner from those of other subjects.
3. Signs not protected as marks
The following signs shall not be protected as marks:
Signs identical with or confusingly similar to national flags or national emblems;
Signs identical with or confusingly similar to emblems, flags, armorial bearings, abbreviated names or full names of Vietnamese state agencies, political organizations, socio-political organizations, socio-political-professional organizations, social organizations or socio-professional organizations or international organizations, unless permitted by such agencies or organizations;
Signs identical with or confusingly similar to real names, alias, pseudonyms or images of leaders, national heroes or famous personalities of Vietnam or foreign countries;
Signs identical with or confusingly similar to certification seals, check seals or warranty seals of international organizations which require that their signs must not be used, unless such seals are registered as certification marks by those organizations;
Signs which cause misleading or confusion or deceive consumers as to the origin, properties, intended utilities, quality, value or other characteristics of goods or services.
4. Distinctiveness of marks
A mark shall be considered distinctive if it consists of one or several easily noticeable and memorable elements, or of many elements forming an easily noticeable and memorable combination, and does not fall into the cases specified in Clause 2 of this Article.
A mark shall be considered as indistinctive if it is a sign or signs falling into one of the following cases:
Ø Simple shapes and geometric figures, numerals, letters or scripts of uncommon languages, except where such signs have been widely used and recognized as a mark;
Ø Conventional signs or symbols, pictures or common names in any language of goods or services that have been widely and regularly used and known to many people;
Ø Signs indicating time, place and method of production, category, quantity, quality, properties, ingredients, intended utility, value or other characteristics, which is descriptive of goods or services, except where such signs have acquired distinctiveness through use before the filing of mark registration applications;
Ø Signs describing the legal status and business field of business entities;
Ø Signs indicating the geographical origin of goods or services, except where such signs have been widely used and recognized as a mark or registered as collective marks or certification marks as provided for in this Law;
Ø Signs other than integrated marks which are identical with or confusingly similar to registered marks of identical or similar goods or services on the basis of registration applications with earlier filing dates or priority dates, as applicable, including mark registration applications filed under treaties to which the Socialist Republic of Vietnam is a contracting party;
Ø Signs identical with or confusingly similar to another person’s mark which has been widely used and recognized for similar or identical goods or services before the filing date or the priority date, as applicable;
Ø Signs identical with or confusingly similar to another person’s mark which has been registered for identical or similar goods or services, the registration certificate of which has been invalidated for no more than 5 years, except where the ground for such invalidation is non-use of the mark according to Point d, Clause 1, Article 95 of this Law;
Ø Signs identical with or confusingly similar to another person’s mark recognized as a well-known mark which has been registered for goods or services which are identical with or similar to those bearing such well-known mark, or for dissimilar goods or services if the use of such mark may affect the distinctiveness of the well-known mark or the mark registration is aimed at taking advantage of the reputation of the well-known mark;
Ø Signs identical with or similar to another person’s trade name currently in use if the use of such signs may cause confusion to consumers as to the origin of goods or services;
Ø Signs identical with or similar to a geographical indication being protected if the use of such signs may mislead consumers as to the geographical origin of goods;
Ø Signs identical with, containing or being translated or transcribed from geographical indications being protected for wines or spirits if such signs have been registered for use with respect to wines and spirits not originating from the geographical areas bearing such geographical indications;
Ø Signs identical with or insignificantly different from another person’s industrial design which has been protected on the basis of an industrial design registration application with the filing date or priority date earlier than that of the mark registration application.
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