What are the theories of intellectual property rights?

Intellectual property (IP) are the rights given to people for certain things they create. Here are some important features for each of these forms of IP, on the most basic level:

Patents protect processes and methods, which includes inventions, software, machines, manufactured items, compositions, and designs.

Protecting Intellectual Property Rights

Trademarks protect the identifying properties of something, whether that is the name, the website address, the logo, the slogan, or anything else of that nature.

Copyrights protect content. This can be content surrounding your products, articles, books, podcasts, songs, movies, guides, etc. If it takes even modest amounts of creativity to create, it’s likely covered by copyright law.

Trademarks and copyrights have “common law” rights which protect your creations to a certain degree. However, it is worth registering your IP with the Patent and Trademark Office  to get the most out of your IP. It will more greatly prevent others from ripping you off by providing a greater sense of notice to infringers. Also, you have to register your trademark and copyright in order to have standing to sue in federal court.

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Trademark registration services in Vietnam

Trademark protection in Vietnam is initially obtained through trademark registration.

Trademark opposition could be filed to prevent a pending application for a mark from being granted application.  Litigation is the final measure to handle dispute during trademark protection in Vietnam.

Protecting Intellectual Property Rights

Trademark is a sign that help distinguish the goods or servicesof one enterprise from those of others. Together with industrial design and patent, trademark of goods and services plays an extremely important role for the growth of the enterprise. Trademark establishes a link between enterprise and customer.  A strong trademark will attract customers to use goods or services. When trademark is popular and economic benefits achieved through sale of goods or provision of services coupled with trademark is large, the violation of trademark is inevitable.

The annual reports of the Vietnam National Office of Intellectual Property (NOIP) prove that trademark violation in Vietnam is the most popular, among other industrial property rights.  According to the preliminary annual report in 2011, and 2012, there has been more than 1,000 cases of trademark violations each year.  Report of 2013 and after shows more than 2,000 trademark infringements were handled with the total fines of trademark violators of around USD 1 million per year.  Having said that, it is important for trademark owner to register trademarks in Vietnam for better protection.  This is also suggested for even well-known trademarks.

For registration, trademark owner has two options: either directly register trademark in Vietnam by filling an application for registration with the Vietnam NOIP, or seek the protection in Vietnam through Madrid’s system.  For the first option, the trademark owner needs to prepare, file for registration, and pay fee as the requirement of Vietnam Intellectual Property law.  In case trademark needs to be protected in a number of nations, including Vietnam, trademark owner may register trademark through Madrid’s system.

Where the violation of trademark occurs, trademark owner needs to judge the level of infringement, level of damage to choose suitable resolutions.  Initially, the trademark owner may protect by requiring to the trademark violator to terminate the infringing acts, apologize, and rectify. In case of being damaged, trademark owners have rights to claim compensation.  If failing to reach result, trademark owner may use settlement mechanism through negotiation or mediation or could request the competent state agencies to handle acts of infringement through i.e. filling a denunciation application and submitting to the Vietnam NOIP.  Litigation might be required to handle acts of infringement.  Generally, the proceeding of civil litigation is more complex than the arbitration proceeding. In cases the trademark owner needs a decision from court in order to end trademark infringement, civil litigation is top priority. In the remaining cases, arbitration is a better choice with advantages of cheaper cost, shorter settling time, and more flexible.

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The Benefit from Protecting Invention Patent

 How to Protect Invention Patent in Vietnam?

Invention protection shall bring advantages for the owner of invention including the usage and application within the duration of 20 years. As Law on intellectual property of Vietnam, an invention patent shall be valid from the grant date until the end of twenty (20) years after the filing date.

Vietnam patent 

Besides, Invention patent can bring its owner the followings:

The steady position on the market: with the invention patent, the owner of the invention shall have rights to prevent others from using their invention with commercial purpose. This will reduce the competitive capacity of competitors and bring preferred position for the owner.

Right to sell and license the invention: in case owners of inventions cannot use their invention by themself, they can sell or license the use of their inventions to other people or companies. They can license only the right of use and sell all of their inventions. This does not only bring them a lot benefits but also avoid risks because of the competition on the market.

When your inventions have been commercialized and got the significant position on the market, other companies or people might tend to copy and use your invention illegally or sell other products which are similar to yours. If your inventions were not properly registered at competent authority, the competitors and violators can use your inventions without breaching of law.

Therefore, it is essential to register a new invention to protect the owner’s rights to avoid unfair competition on the market.

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Intellectual Property remains a big challenge for Vietnam under CPTPP

At an informal meeting of representatives from 11 countries (without US) taking place on the Asia-Pacific Economic Cooperation (APEC) dated on November 10th, 2017, the parties agreed to change from Trans-Pacific Partnership Agreement (TPP) to the Comprehensive and Progressive Partnership for Trans-Pacific Partnership (CPTPP).

IP infringement lawyers in Vietnam

Accordingly, the CPTPP contains 8,000 pages of documents, but only 20 articles of the TPP agreement, including 10 articles related to intellectual property (IP) and 4 points are reserved for the parties to negotiate in next time. Each member will list its delimited list of restrictions of their country.

According to the Vietnam Minister of Industry and Trade, CPTPP still guarantees a quality agreement like TPP-12, while ensuring new equilibria for member countries. The content of the CPTPP is not only about trade, investment, but also on intellectual property (albeit temporarily postponed) and other broad areas.

With CPTPP, Vietnam may not be the most beneficiary country like the proposed TPP, but it is still very important, because it brings together many of the criteria associated with reform, particularly institutional reform, improving the investment climate, business.

Vietnam law on Intellectual Properties will need to be amended because the legal system of Vietnam’s IP is not consistent with the legal system of developed countries.  The Law on Intellectual Property of Vietnam, after many proposals, has not yet been approved by the National Assembly. Meanwhile, the amended Law on Technology Transfer, though approved in June 2017, still lacks specific guidelines on technology transfer.

Intellectual property rights in the TPP not only contain general provisions and requirements relating to areas of cooperation, patents, test data, designs, trademarks, geographical indications or copyright but also focuses on the legal enforcement of this right by nations.

The CPTPP is based on agreed commitments at the TPP, which are particularly important in paving the way for Vietnamese goods to penetrate into the members’ markets.

 To learn more about ANT Lawyers IP Practice or contact our Intellectual Property Lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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Can I use a trademark if it has already been expunged?

The answer is, it depends.

Even if a trademark is expunged, it doesn’t mean it’s no longer in use. If the trademark in question is still used by the owner, then he/she may still have common law rights. That means that when you file your trademark application, once it’s published for opposition purposes, the owner of the expunged registration may oppose registration of your mark on the ground of prior use. And he may win!

Trademark Attorneys in Vietnam

If you use your trademark without filing for a trademark, then it’s still possible for the owner of the expunged trademark to sue you, again on the grounds of prior use.

If the expunged mark is no longer in use, then you should be safe provided there are no other confusingly similar marks.

Trademark law is complicated.

To learn more about ANT Lawyers IP Practice or contact our Intellectual Property Lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71  Intellectual Property Lawyers in Vietnam 

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CPTPP Reflects Vietnam’s Commercial Global Integration

On March 9th, 2018, Minister of Industry and Trade, Vietnam Tran Tuan Anh and 10 Ministers of the Member countries signed the Comprehensive and Progressive Agreement for Trans-Pacific partnership (CPTPP) in the capital Santiago, Chile.

Intellectual Property remains a big challenge for Vietnam underCPTPP  

The historic process:

CPTPP, a new generation free-trade agreement, is established to replace TPP after the exception of U.S – the world’s largest economy. To the contrary of this situation, CPTPP still holds the high standards. This agreement will be available in 60 days after being signed by 6 of 11 member countries, including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam.

Speaking after the signing ceremony, The Minister of Foreign Affairs, Chile Heraldo Munoz said: “CPTPP is an unique signal to protest the protectionism and advocating a diversified world, multilateral trade”. It is expected that CPTPP is a crucial document to set up a sample for the commercial transactions in the future.
CPTPP founded in the context of President Donal Trump’s threats to increase taxes on steel and aluminum, which impacts many countries and could create a commercial global war.

CPTPP reduces the tariff between 11 member countries which accounted for 13% of the global economy with GDP hit 10,000 billion USD, if it involved U.S, the rate was 40%.
President Chile Michelle Bachelet addressed: “We are here today can be proud of ending this process and send a meaningful message to the community that opening the market, economic integration and international cooperation are the best tool for creating opportunity and prosperity for the economy”.

U.S moved away from CPTPP and tireless efforts are rewarded:
At this time, CPTPP is the world’s largest commercial agreement. The Washington’s retreat from TPP did not give an end this agreement, with a number of efforts from members, especially Japan, has helped revive the high standard agreements in order to create new standards for global trade.

With the APEC 2017 host country role, Vietnam and Japan made efforts to put everything back in orbit. Following this, the content of CPTPP eliminated some requirements requested by U.S from the round of TPP negotiation, including the rules strengthen intellectual property protection to pharmaceutical products. Many countries and activists believe that this regulation will increase the price of drugs. A final draft of the CPTPP was announced in February 21st in New Zealand.

CPTPP retains the contents of the TPP but for some member countries postponed their obligations. It is expected that CPTPP is comprehensive, balances the interests and has the benefits of the countries too after difficult but constructive negotiations.
ANT Lawyers strives to follow CPTPP and other inter countries agreement to exploit best benefits for the clients.

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Who can apply for trademark registration?

Who Can Obtain a Trademark

Trademark registrations are widely used to protect brand or slogans or coined words that are unique to a person or entity. Trademark registration can thus be obtained by individuals or businesses or not-for-profit organisations. However, each of the different class of persons or entity have different requirements while filing a trademark application. In this article, we look at some of the requirements for filing trademark application based on the applicant type.

An Individual (Person)

An individual not doing any business is also eligible to file a trademark application and obtain trademark registration for a word or symbol that is proposed to be used by him/her in the future. When filing trademark application as an individual, the full name of the applicant is required.

Register trademark in Vietnam

Joint Owners

In case two persons come together and decide to file a trademark application, then the names of both the person must be mentioned on the trademark application.

Proprietorship Firm

In case of a proprietorship firm filing a trademark application, the full name of the Proprietor must be mentioned in the application. A business name or proprietorship name is not acceptable as the name of an individual. This is because a business name or proprietorship name is more in the nature of an alias for the actual person and proprietorship firms are not a separate legal entity. However, if a proprietorship name or business name is included on the application in addition to the name of an individual applicant, those details will be captured separately.

Partnership Firm

In case of a partnership firm filing for trademark application, the names of all the partners are essentially required to be mentioned in an application filed by a partnership firm. Partnership firms are not considered as a separate legal entity and hence, the names of all Partners must be mentioned in the trademark application. If the partnership firm includes a minor in the partnership, the name of guardian representing the minor should also be mentioned.

Limited Liability Partnership

In case of a Limited Liability Partnership making a trademark application, the application for registration must be made in the LLP name. A LLP being an incorporated body has its own identity. Thus the Partner by themselves cannot be the applicant, wherein the trademark must belong to a LLP.

Vietnam Company

In case of a private limited company or one person comapny or limited company making a trademark application, the application for registration must be made in the company name. A company being an incorporated body has its own identity other than its directors, therefore a director of the company cannot be the applicant, although the application can be signed and submitted by the Director or any Officer, authorized by the company.

Foreign Company

In case of a foreign incorporated entity making a trademark application in Vietnam, the application for registration must be made in its own corporate name, as registered under the foreign country. The nature of registration, country of incorporation and the law under which the company is registered, are to be mentioned. If the foreign company has no principal place of business in India, the applicant’s address for service in India should be mentioned in the application.

Trust or Society

If a trademark application is made on behalf of a Trust or Society, the name of the Managing Trustee or Chairman or Secretary representing the Trust or Society should be mentioned.

To learn more about ANT Lawyers IP Practice or contact our Trademark attorneys in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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What is distinction between registered trademark and unregistered trademark?

Registered Trademark

A registered trademark is one in which the proprietor of the marks files an application before the Trademarks Registery in the relevant class and is granted registration by the Trademarks Registry. To get registration, the applicant needs to show to the Registry that it's distinguishable from others and creates a unique identity for the product. Once Registered, a trademark gets protection under the Trademarks Act and the proprietor can sue any party using his trademark for infringement and can also claim damages. When the trademark is applied, the proprietor can add (TM) written in a small font on the upper right hand corner of the mark. Once Registered, (R) can be added in place of TM.

Register trademark in Vietnam

Unregistered Trademark

An unregistered trademark is one which is not registered by the Trademarks Registry. It may be a case of pending for registration or it may be a case where the proprietor has not filed any application for registration of trademark. There are cases where some proprietors use trademarks which are not capable of registration and they decide not to apply. There are also cases which which the proprietor decides to use a trademark which is deceptively similar to a registered trademark and the proprietor knows that it is almost impossible to get registration. In some cases, proprietor doesn't apply for registration due to ignorance of IP laws.

An unregistered trademark doesn't have much protection under trademarks act. The proprietor can only sue a third party for passing off and not infringement. The proprietor can also not stop any other party from using the same mark. In short the proprietor doesn't get any statutory protection but gets only some common law rights.

One can't use (R) with an unregistered trademark.

ANT Lawyers 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.

We are representing and advising clients being multinationals, inventors, global partner law firms serving their clients in IP works in Vietnam.

To learn more about ANT Lawyers IP Practice or contact our Intellectual Property Lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

Let ANT Lawyers help your business in Vietnam.

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Who benefits from intellectual property laws?

The traditional economic argument for patenting is that since innovation is a highly risky endeavor and the benefits to society are often greater than the benefits to the innovator, if filled with rational actors, society would otherwise underinvest in innovation. In addition, if the innovator keeps her invention secret then it is difficult for others to benefit from this information and make further innovations. So the solution offered by patent policy is to give the innovator monopoly profits for a period of time in exchange for putting the information behind the patent into the pubic domain.  There are other methods for encouraging innovation, including R&D tax credits, subsidies, government procurement, or prizes for innovation.

Intellectual Property Lawyers in Vietnam

Arora and coauthors (2008) find that patents stimulate R&D across a wide range of manufacturing industries. Moser (2005) finds that countries without patent protection tend to concentrate their innovation in industries where trade secrets are most effective, so patenting spreads out the distribution of innovative activity. However, she also concludes that for developing countries creating a patent system may not be an optimal solution initially.

Generally speaking, IP law favors creators. In most developed nations, it is possible for private litigants to prevail in court when substantive claims are made. There is a long history of cases decided for the "little guy".

Corporate entities may try to stall such proceedings or to overwhelm claimants, but well documented IP rights are often upheld or settled for the benefit of the creator.

Without such laws, we would be awash in a sea of piracy. We would be left only with trade secrets as our sole protection which would make production costs skyrocket, or keep artists and trade entities relatively unknown and mired in litigation.

This is not to say that all use of IP law is fair to creators and consumers. Knowledgable artists will be among the first to point to "public domain" as a key and critical part of IP law which is being usurped by corporations in the USA and possibly globally. Public domain is built on a premise that at some point, creations become a part of the cultural fabric.

The Micky Mouse character known as "Steamboat Willie" is often cited as central to this debate. As the film short was about to enter public domain American copyright protections were extended to protect this Walt Disney property. However a viable argument can and is often made that Disney can protect its interests through Trademark law, while allowing the world access to the original production as a part of global culture through public domain.

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What is the difference between trademark (TM) and registered(R) in the logo of a company?

TM (Trademark)

Trademark is a sign that help distinguish the goods or services of one enterprise from those of others. Together with industrial design and patent, trademark of goods and services plays an extremely important role for the growth of the enterprise. Trademark establishes a link between enterprise and customer.  A strong trademark will attract customers to use goods or services.

Register trademark in Vietnam

Trademarks are for words, symbols, devices or names that are used to distinguish the goods of one manufacturer or seller from that of another. Any distinctive name, symbol, or word is designated as trademarked with the symbol "TM". If a company has trademarks that are not officially registered, it can use the letters "TM" to show that it claims ownership of the mark. A company must continue using the "TM" symbol until the trademark office actually registers a mark. A company cannot use the R circle symbol while a trademark registration application is still pending.

R(Registered Trademark)

A company can only use the circled R symbol in conjunction with its products and brands if it has officially registered a trademark with the trademark office. A company can continue simply using the "TM" symbol in conjunction with its brands instead of officially registering a trademark and using the R circle symbol, but trademark registration carries certain legal benefits. Trademark registration includes public notice of the owner's claim to the mark, a legal presumption that the party that registered the mark owns it and has the exclusive right to use the mark.

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