-
 Vietnam's
legal framework for IP in general and trademarks in particular,
has made much progress over the past few years but many
weaknesses still exist which need to be addressed promptly. The
major weakness is that the law is too general and thus requires
too many subordinate regulations, including decrees, circulars
and regulations of related government agencies to be effectively
implemented. The subordinate regulations are not systematic,
making enforcement very difficult, not to mention that some
subordinate regulations go beyond the scope of the law. For
example, there are subordinate regulations that stipulate in
detail the definition of a product's trademark, which goes
beyond the very general definition of trademarks in the Civil
Code. Developing a separate law on intellectual property with
detailed regulations is an urgent need, in order to have all
legislation related to IP in one legal document.
A closely related issue is that of duplication of company trade
names. There is currently a regulation that does not allow more
than one company to have the exact same trade name in one
province—this is not enough. Many new businesses intentionally
choose a name exactly the same or very similar to that of an
existing company in another province, resulting in disputes that
the NOIP cannot resolve. Currently there are 17 agencies in
Vietnam that are involved with business registration and
licensing. There needs to be a single agency with primary
responsibility for business registration, and a national
registration database to ensure there is no duplication of
company trade names.
Mr. Tran Viet Hung,
Deputy Director General,
National Office of Intellectual Property of Viet Nam
-
 The
Vietnamese laws related to trademarks are not detailed enough.
The legislation on trademarks is included in Section VI of the
Civil Code, and the Civil Code deals mainly with industrial
property rights in a very brief manner and at a very high level.
There are no clear guidelines or implementing regulations for
the examination process undertaken by the NOIP. In most other
developed countries, the national trademark office will have a
manual of procedures and factors taken into account when making
the decision whether or not to grant a trademark and the
procedures and considerations relevant to determining
opposition, cancellation and infringement petitions. These
manuals are for the benefit of the trademark office examiners
but also for the public and lawyers so they can decide how to
frame their applications and predict the outcome of certain
straightforward applications. Without detailed regulations and
manuals for the examination process, lawyers are unable to
advise their clients on the likely outcomes, and thus, the
decisions tend to be more arbitrary and inconsistent with
Vietnamese law and best practice.
It has now been three years since the IP laws of Vietnam were
amended to include protection for famous, or "well-known,"
trademarks in order to comply with the Paris Convention, yet
such protection is still not available in Vietnam because there
are no regulations guiding the implementation of this law. The
government needs to address this situation as a matter of
urgency, because the infringement of a well-known trademark
tends to attract the attention of tourists and media, and
thereby feeds the perception in foreign countries that Vietnam
is not serious about protecting IPRs.
The lack of detailed laws and regulations also result in poor
enforcement, as it provides the authorities with loopholes and
too much discretion to not enforce IP laws.
Mr. Paul A. Norris,
International Lawyer, Baker & McKenzie
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