THE COUNCIL OF MINISTERS
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
197-HDBT
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Hanoi, December 14, 1982
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DECREE
ON
TRADE MARKS
With a view to unifying the
administration of trademark throughout the country, to encourage manufacturing
and commercial establishments to ensure and improve the quality of their
products, in order to contribute to the increased circulation of goods in
domestic and international markets, and to suppress the manufacture of fraudulent
products, and illegal commercial practices;
This Ordinance is promulgated to protect the trademarks, and the legitimate
interests of consumers as well as those of manufacturing and commercial
establishments.
Chapter 1
GENERAL PROVISIONS
Article 1
1. State, collective and private
organizations which are legal entities (hereinafter referred to as
organizations), and neutral persons engaged in lawful manufacturing, commercial
or service activities shall be entitled, and obliged to register and use trademarks
and service marks to designate their products or services, pursuant to the
provisions of this Ordinance.
2. This Ordinance shall apply to
the legal protection of trademarks and to the protection of service marks (
hereinafter referred to as marks).
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4. Natural persons and legal
entities of foreign countries shall benefit from the rights granted by this
Ordinance in accordance with the international conventions to which Vietnam is
a party, or the principle of reciprocity.
Natural persons and legal
entities having no residence, headquarters or representative offices in Vietnam
shall apply for the legal protection of marks in Vietnam through an industrial
property agency.
Article 2
1. Trademark means a sign used
to distinguish goods or services of the same kind, of different manufacturing
and commercial establishments. A trademark may be a word, a figurative element
or a combination thereof represented in one or more colors.
2. The signs specified below
shall not be recognized as marks:
(a) signs that do not possess
distinctive characteristics, in that they consist of an assembly of simple
geometric shapes, figures or letters that cannot be pronounced, except in
exceptional cases in which the signs have been widely used and recognized for a
long time;
(b) conventional signs, and the
usual figures and denominations for goods that are widely used and a matter of
public knowledge;
(c) signs expressing time,
place, manufacturing process, type, quality, quantity, nature, composition,
purpose, value, amongst other things, that are of a descriptive character in
relation to the product;
(d) signs liable to mislead the
public as to the origin nature or purpose of the product, or signs likely to
deceive the consume.
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(f) signs that represent State
flags, armorial bearings or emblems, portraits of national leaders or heroes,
geographical denominations relating to Vietnam or other countries, names or
emblems of international organizations, except where the use of the such signs has
been authorized by the competent authorities;
(g) signs that are contrary to
the law, to public policy and to socialist morality;
(h) in the case of goods of the
same type, signs identical or similar to marks previously registered in
Vietnam, or protected by an international convention to which Vietnam is a
party.
Article 3
The affixing of marks on goods
or in connection with services pursuant to the provisions of this Ordinance
shall not replace the affixing of labels or other signs pursuant to provisions
on standards, technical conditions and conditions governing the delivery of the
goods.
Chapter II
REGISTRATION OF MARKS
Article 4
1. The registration of marks
shall be carried out by the National Office on Inventions attached to the State
Committee for Science and Technology. In order to obtain legal protection for
marks, legal entities and natural persons shall file an application for registration
for registration there of with the National Office on Inventions.
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3. The applicant shall pay the fees
required for registration.The fees required for registration and the other fees
mentioned in the following articles shall be prescribed by the State Committee
for Science and Technology.
Article 5
1. Within a maximum period of
one month after the date of receipt of the application for registration, the
National Office on Inventions shall proceed to examine the application with
respect to form, in order to ensure that the application has been filed in the
proper manner.
Within six months after the date of acceptance of the application found to be
in proper form, the National Office on Inventions shall proceed to examine the
application with respect tosubstance, and shall decide to grant or refuse a
certificate of registration of the mark. In the event of refusal, the grounds
shall be notified to the applicant.
2. The mark for which a
certificate of registration is granted shall be entered in the National
register of Marks and shall be published in the Official bulletin of Inventions
and Marks issued by the National Office on Invention. The owner of the mark
shall pay a publication fee.
Article 6
Where two or more persons file
applications for the registration of identical or confusingly similar marks for
goods of the same kind, priority shall be granted to the person who files his
application first on the basis of the following dates:
(a) the date on which the National Office on Inventions received the application,
or the date of postal dispatch;
(b) the date of filing of the
initial application in another country pursuant to the provisions of
international conventions to which Vietnam is a party;
(c) the date on which the
product bearing the mark was displayed in an official exhibition in Vietnam, if
the application for registration of the marks in Vietnam, provided the
international conventions to which Vietnam is a party do not otherwise provide.
Chapter III
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Article 8
1. Marks shall be protected as
from the date on which the National Office on Inventions rendered its decision
to grant the certificate of registration.
2. The term of protection shall
be ten (10) years following the date of priority. The term of protection may be
extended for periods of ten (10) years each following the expiry date of the
previous term of protection. For the purpose of the extension of the term of protection,
the owner of the mark shall file a request for extension with the National
Office on Invention six months prior to the expiry date of the term of
protection and shall pay the required fees.
Article 9
1. During the term of validity,
the owner of the mark shall have the exclusive right to use the mark to
designate goods appearing in the list of goods that are to bear the mark in
question, in connection with all manufacturing, commercial or service
activities in the territory of Vietnam.
2. The owner of the shall be
entitled to assign the right to use the mark by contract, either partially or
totally, to other manufacturing or commercial establishment, provided that the assignee
ensures the characteristics and quality of the goods that bear the mark. In the
case of partial assignments, the contract shall provide for the right of the
owner of the mark to verity the quality of goods.
3. The contract for assignment
of the right to use the mark must be registered with the National Office on
Inventions before it shall be of legal effect, and the owner of the mark must
pay the prescribed fee.
Article 10
1. During the term of validity,
the owner of the mark may apply to the National Office on Inventions for a
change in his or her name or address, to secondary elements of the mark, or the
list of goods bearing the mark. Such changes shall be entered in the National Register
of Marks and on the certificate of registration of mark. The owner of the mark
shall pay the prescribed fee.
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Article 11
The legal protection of marks
shall terminate in the following cases:
(a) where the owner of the mark
files a request to terminate the protection of the mark prior to the expiry of
the term of validity;
(b) where the manufacturing or
commercial establishment that owns the mark no longer exists, or no longer
carries on its activities, and there is no legal successor to the right to use
the mark;
(c) where the mark has not been
used or assigned for five years following the date of decision to grant the
certificate of registration, and the owner of the mark has not given legitimate
reasons.
Article 12
Throughout the term of validity
of the certificate of registration of the mark, any organization or person who
discovers that mark has been registered in a manner contrary to the provisions
of this Ordinance shall have the right to file a declaration with the National
Office on Inventions requesting the cancellation of the legal protection of the
mark concerned.
Article 13
1. The person filing the
application for the registration of a mark or the owner of the mark shall have
right to appeal against decisions concerning acceptance and examination of the
application for registration of the mark, and refusing the grant of a
certificate of registration for the mark contrary to the provisions of article
2.
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3. Within two months after the
date of receipt of the appeal petition, the National Office on Inventions shall
examine the appeal, settle the matter in issue, and notify its findings to the
person concerned. In the event of a difference of opinion between the person concerned
and the National Office on Inventions, the decision of the Chairman of the
State Committee for Science and Technology shall be considered final.
Article 14
1. Any person or organization
shall be regarded as having violated the right of use of the owner of the mark
if he, she, or it has made use belonging to another person without
authorization, or of identical or similar signs likely to be confused by
consumers with a mark belonging to another person, in respect of goods
appearing in the list for that mark.
2. The owner of the mark shall
have the right to apply to the competent authorities for the imposition of a
sanction in cases of violation of the right to use the mark.
Article 15
1. Organizations which, or
persons who do not register or use marks pursuant to the provisions of clause 1
of article 1 shall not enjoy the rights provided for in the Ordinance, and
shall be subject to legal sanctions in accordance with the extent of the
consequences of failure to so register and use marks.
2. Organizations which, or
persons who have violated the rights of an owner of a mark provided for in
clause 1 of article 14 shall be subject to legal sanctions in accordance with
the degree and consequences of the violation.
Chapter IV
ORGANIZATION AND ADMINISTRATION OF ACTIVITIES CONCERNING MARKS
Article 16
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2. The Ministries, the State
Committees, other bodies of the Council of Ministers, and the people's
committees of the provinces, cities and special zones under central authority
shall be responsible for administering activities concerning marks within their
respective jurisdictions, including;
(a) giving instructions to
manufacturing and commercial establishments in relation to applications for the
registration of marks within the country or abroad;
(b) control the use of marks.
3. The department responsible
for the management of innovations and inventions or, as the case may be,
another appropriate department shall be responsible for assisting Ministries,
State Committees, other bodies of the Council of Ministers, and the people's
committees of the provinces, cities and special zones under the central
authority, and also manufacturing and commercial establishments, in performing
the above tasks, in accordance with their respective duties.
Chapter V
PROVISIONS FOR IMPLEMENTATION
Article 17
The Chairman of the State
Committee for Science and Technology shall be responsible for promulgating,
either on his own initiative or in consultation with the bodies associated
there with, instructions for the interpretation of this Ordinance and for the
purpose of directing and organizing its implementation.
Article 18
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To Huu
(Signed)