VIETNAM Law and Practice Contributed by: Ngoc Luong Trinh, Tung Nguyen, Hanh Vo, Esko Cate, Nguyen Dang, Khanh Le, Hoang Nguyen and Truc Ta, VILAF
Generally, an invention patent is effective from the grant date until the end of 20 years from the filing date. A utility solution patent is effective from the grant date until the end of ten years from the filing date. The patent owner has the right to use, license, prevent oth - ers from using and dispose of the protected invention. Use includes manufacturing the protected product, applying the protected process, exploiting the pro - tected product or a product made by the protected process, circulating, advertising, offering or stocking it and importing it. Unauthorised use of a protected invention during the patent term constitutes infringement. The owner may request cessation, public correction, damages, administrative handling, court proceedings or arbitra - tion. In a civil patent case involving a patented pro - cess, the defendant may be required to prove that its process is different where the protected process produces a new product or where the owner cannot identify the defendant’s process despite reasonable efforts. 7.2 Trade Marks A trade mark is a sign used to distinguish the goods or services of different organisations or individuals. Registrable signs include words, letters, drawings, images, three-dimensional shapes, colours, combi - nations of those elements and sound signs capable of graphic representation. A mark must be distinctive and must not fall within statutory exclusions, such as misleading signs, prohibited official symbols, signs identical or confusingly similar to protected marks and signs that take unfair advantage of well-known marks. Vietnam follows a first-to-file system for registered trade marks. Rights in an ordinary trade mark are established by the grant of a trade mark registration certificate or by recognition of an international reg - istration under an applicable treaty. Rights in a well- known mark are established through use and are not subject to registration. An applicant may register a mark for goods it produces or services it provides. It may also register a mark for goods it lawfully places on the market if the producer neither uses the mark nor objects.
A trade mark application may cover one mark used for one or more goods or services. The application is published in the Industrial Property Gazette within one month after being accepted as formally valid. Third parties may oppose registration within three months of publication. A trade mark application is substan - tively examined within five months from publication. Registration may be refused for lack of distinctive - ness, conflict with earlier rights, misleading content or other statutory grounds. A registered trade mark is protected from the grant date until the end of ten years from the filing date. Protection may be renewed for consecutive ten-year periods without a statutory limit. A registration may terminate if it is not renewed, if the owner relinquish - es it, if the owner no longer exists or conducts busi - ness without a lawful successor or if the mark is not used for five consecutive years before a termination request, subject to statutory exceptions. Trade mark infringement includes unauthorised use of an identical mark for identical goods or services, use of an identical or similar sign for related goods or ser - vices where confusion is likely and use of a sign identi - cal or similar to a well-known mark where confusion or a misleading association is likely. Customs control is particularly relevant for counterfeit trade mark goods. Customs authorities may suspend clearance, inspect or supervise goods and apply administrative remedies where counterfeit goods are detected. 7.3 Industrial Designs An industrial design is the external appearance of a product or part of a product, in physical or non- physical form, expressed by shapes, lines, colours or a combination of those elements and visible during exploitation of the product’s utility. Protection is avail - able for designs that are new, creative and industrially applicable. A design is not protected if its appearance is dictated solely by technical characteristics, is the shape of a civil or industrial construction work or is invisible during use. Industrial design rights are established by the grant of an Industrial Design Patent or by recognition of an international registration under an applicable treaty. Foreign applicants without a permanent residence or
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