According to the NOIP, the total number of trademark applications filed in 2009 was 28,658. This was just 1,145 more applications than were filed in 2008, largely due to the slowdown in the economy, combined with a 20 per cent increase in filing fees. Even with such a small increase over the last 12 months, this figure is a mere drop in the ocean, when compared with over 400,000 operational businesses in Viet Nam together with the huge number of new products introduced into the market every year

Why is there such a disparity between the number of trademark applications and the growth in business? One view is that many businesses look at the short term only. Without a long term strategy, businesses fail to see the need to register their trademarks.

But the value of many companies lies in their intangible assets, the most important of which is the company’s brand. A brand is the ultimate tool for a company to differentiate itself for competitive advantage. Brand equity encompasses a company’s knowledge, innovation, reputation, and trade secrets, so it is crucial to protect the brand itself.

A trademark is an important part of the brand. It is a legally enforceable right to exclude others from using a particular mark. It distinguishes the goods or services of one trader from those of another and functions as a ‘badge of origin’, giving consumers confidence in the product they are buying, which in turn brings in revenue for the owner.

Famous brand names will always be copied by illicit businesses. It is important for brand owners to remember that once they lose their brand names to rivals, they inevitably also lose market share.

Registering your mark gives you the exclusive right to use it. Anyone else who uses the mark will be a wilful infringer against whom enforcement action can be taken.

In order to protect a brand from infringement, one of the first steps is to register the mark with the NOIP.

This reduces the risk of losing the trademark to another registrant or having to take expensive and time-consuming legal action to enforce your rights. The Vietnamese authorities have built up extensive experience in trademark infringement and enforcement and are able to rely on a registration certificate in order to fight imitators.

Well-known marks can also be protected without registration, and, while this is more common in other jurisdictions, few marks have been granted ‘well-known’ status in Viet Nam.

While, in theory, registration of a trademark should provide full protection for a product or brand, trademark holders should also guard against the registration of similar marks by other businesses in the same field. In practice, you cannot always rely on the trademark office to reject such marks on the basis of your existing registration, and it is possible for a trademark holder to later discover that an almost identical or similar mark has been accepted for protection by the NOIP. This is a potential problem for trademark owners globally.

The root of the problem lies in the subjective nature of the trademark examination practice. The examination of trademarks is not an exact science, and there is no standard formula relied upon by the NOIP to determine whether two trademarks are similar. Decisions are subjective, dependent on the experience and viewpoint of individual examiners within the trademark office. It is therefore possible that although an intellectual property rights holder insists that a new and similar mark infringes on his trademark, the trademark office may allow registration of that similar mark.

Further, the examination practice is based on a classification system which divides all goods or services into various classes. The trademark office may only examine marks within the same class, which means that similar trademarks which fall into different classes may wrongly be registered.

The situation in Viet Nam is even more problematic given the large number of trademark applications per year, combined with a lack of manpower, knowledge and experience. This is evidenced by the rising number of oppositions and cancellations being filed with the NOIP.

As trademark owners are clearly unable to rely solely on the trademark office to protect their rights or reject identical or similar trademarks, the only course of action is to actively monitor the monthly Industrial Property Gazette. Although this is time-consuming, it is essential for any trademark owner. Once spotted, any conflicting mark should be opposed immediately, as trademark offices are reluctant to cancel registered marks.

The disparity between the number of trademarks registered in Viet Nam and the number of new products launched means that Vietnamese businesses are inevitably losing out financially to domestic and international competitors and/or infringers. Building up and monitoring your trademark portfolio is therefore essential to protect your brand both in Viet Nam and globally

- According to Vietnamnews

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