Protection of industrial property rights for collective trademarks under Vietnamese Intellectual Property Law

Research the legal regulations of countries around the world on intellectual property protection;

From the current status of intellectual property rights protection for intellectual property rights in our country, we propose solutions to improve legal regulations and improve the effectiveness of intellectual property rights protection for intellectual property rights.

Mission:

To achieve the above purpose, the tasks set for the author of the thesis are as follows:

Research to clarify the theoretical aspect of intellectual property rights in relation to other subjects of intellectual property rights. Specifically, focus on analyzing the characteristics and functions of intellectual property rights, pointing out the most basic contents of intellectual property rights, thereby building the concepts of intellectual property rights and intellectual property rights protection.

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Study the provisions of Vietnamese law on the protection of intellectual property rights, specifically the signs used as intellectual property rights, the conditions for protection as well as the mechanism and registration of intellectual property rights in comparison with the provisions of other countries' and international laws to see the advantages and limitations in the provisions of Vietnamese intellectual property law;

Research the current status of IP protection for intellectual property rights in Vietnam in terms of registration, management and use to find out the remaining problems. Thereby, propose measures to improve legal regulations and improve the effectiveness of IP protection for intellectual property rights.

4. Research object and scope

Research subjects:

The thesis studies the provisions of Vietnamese law on the protection of intellectual property rights. In addition to the provisions of Vietnamese law, the thesis also studies the provisions of international law and the laws of other countries in the world to compare with Vietnamese law. In addition,

The thesis also studies typical cases in the current situation of protecting intellectual property rights for intellectual property rights, finding out the limitations in the provisions of the Law as well as in the actual implementation of intellectual property rights of owners.

- Scope of research.

The thesis focuses on studying the legal provisions on the protection of intellectual property rights, including the legal provisions on the registration of the establishment of intellectual property rights in Vietnam and comparing it with other countries in the world. The thesis does not aim to study the legal provisions on the enforcement of intellectual property rights in intellectual property rights.

5. Research methods

The thesis has applied a synthesis of dialectical materialism and historical materialism research methods, analysis, synthesis, comparison, generalization, logic and historical methods in analyzing and explaining the raised issues. At the same time, the thesis also inherits and uses a number of research results and scientific topics related to the protection of intellectual property rights for intellectual property rights.

6. New contributions of the thesis

There are many research topics on trademarks in general, but this thesis is the first document that studies in depth the protection of intellectual property rights for trademarks in Vietnam. The thesis has made the following new contributions:

 Clarifying the theory of intellectual property protection and especially introducing scientific concepts related to intellectual property such as intellectual property protection;

 Clarifying the system of protection of intellectual property rights under Vietnamese law;

 Research the laws of some countries on NHTT and analyze and compare them with Vietnamese law;

 Indicate the current status of registration and use of NHTT in Vietnam and build

Develop appropriate recommendations and solutions to improve Vietnamese laws on credit institutions.

7. Thesis layout

In addition to the introduction, conclusion, and reference list, the content of the thesis includes three chapters:

Chapter 1 : General theoretical issues on intellectual property protection

Chapter 2 : Intellectual Property Law and Practice of Intellectual Property Protection in Vietnam

Chapter 3 : Directions and some measures to improve the law on intellectual property protection

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Chapter 1‌

GENERAL THEORETICAL ISSUES ON INVESTMENT PROTECTION

1.1. Concept, characteristics and functions of NHTT

1.1.1. Concept

Although not as popular and widely known as a common trademark, a trademark also has its own position and role. To understand the concept of a trademark, we first need to understand the concept of a trademark.

Before the Law on Intellectual Property was issued, Decree 63/CP in 1996 also explained but did not provide a definition of trademark (Decree 63 used the term “trademark”). However, these explanations were sketchy and did not understand the true nature of what a trademark is. The Decree explained that “Trademark” is understood to include service trademarks. Instead of explaining what a trademark is, the Decree only explained the content of a trademark, which includes service trademarks. To overcome the shortcomings of Decree 63, the Law on Intellectual Property 2005 (IP) provided the concept of a trademark in the explanation of terms as follows: “A trademark is a sign used to distinguish goods and services of different organizations and individuals”. According to the provisions of the IP Law, a trademark is first of all a sign. A sign to be registered as a trademark must be a visible sign in the form of letters, numbers, words, drawings, images, including three-dimensional images or a combination of these elements, expressed in one or more specific colors. According to the above regulations, signs that are not visible or not expressed in a certain material form will not be used as a trademark. This regulation excludes types of trademarks such as taste or sound trademarks... US trademark law considers signs used as trademarks to include both

taste, sound. Therefore, we can see that the US regulations have a broader scope than the regulations of Vietnamese law.

However, not just any sign can be used as a trademark, but the sign must be able to distinguish the goods or services of different organizations and individuals. The distinguishing function is an important factor when determining a sign as a trademark of an entity.

Although the trademark is not as popular as a normal trademark, it also makes a significant contribution to the development of products and services bearing the trademark. Similar to trademarks, before the Law on Intellectual Property was issued, Decree 63 also introduced a concept of the trademark in the explanation of terms as follows: “The trademark is a trademark used by a group of individuals, legal entities or other entities, in which each member uses it independently according to the regulations prescribed by that group”. According to the provisions of Decree 63 above, the trademark is a trademark and is used by a group of individuals and legal entities according to a regulation prescribed by the group. This provision of the Decree only highlights what the trademark is and who is the subject of this trademark, but does not demonstrate the distinctiveness of the trademark. Meanwhile, the distinctiveness of the trademark is an extremely important factor when determining whether a sign is a trademark or not. To overcome these shortcomings, the Law on Intellectual Property stipulates in Point 17 of Article 4 as follows: “A trademark is a trademark used to distinguish goods and services of members of the organization that owns the trademark from goods and services of organizations and individuals that are not members of that organization”.

To better understand the concept of collective, we need to first understand what is " collective ": " A collective is an officially organized, unified group that carries out a common goal, in line with social interests" [ 24 ].

A Collective is an official “ Group ”, but not just any group.

Any group is a collective. A group is a collection of people united together by a purpose and by certain relationships such as work, study, play... A group is a broader concept than a collective.

We will consider “Collective” based on the following signs:

 Organizational relations: Organizational relations in a collective will establish clear and close relationships between the management entity and its members. Activities are for the common goals and interests of the collective. The rights and obligations of the management entity and members are officially defined and strictly adhered to.

 Management relationship: In the collective, there is a division of functions, powers, and specific responsibilities. In which, the management entity will be responsible for operating and controlling compliance with the regulations set by the collective, handling violations due to non-compliance or violation of the collective regulations... The activities of the members will be subject to the management of the management entity and follow a unified direction with a plan, discipline, and clear operating regulations.

 Financial relations: Financial relations in the collective will form monetary funds and form relationships in the use and distribution of monetary funds. Benefits in the collective are divided fairly among members.

 Purpose of operation: To carry out a common goal set by the collective, in accordance with the development and interests of society.

The unique characteristics of the above-mentioned "Collective" will create differences in ownership, management organization and use of the NHTT that we will learn about in the following sections.

However, from the concept of NHTT we will see the differences compared

with the regular brand. The difference is shown in the following aspects:

 Regarding the owner: Unlike a normal trademark, the owner can be an individual or an organization, the NHTT stipulates that the owner can only be an organization. This provision excludes individuals or individual traders from participating as owners of the NHTT. Because the distinguishing function of the NHTT is different from the distinguishing function of a normal trademark. The NHTT is used to distinguish the goods and services of members of the organization that owns it from other organizations and individuals that are not members of the organization.

 Regarding the subject having the right to use: Not only the owner but also the members of the organization that owns the NHTT have the right to use the NHTT.

 Regarding the distinguishing function: A trademark is used to distinguish goods and services of members of the organization that owns the trademark from goods and services of organizations and individuals that are not members of that organization. If a regular trademark has provisions to distinguish goods and services of different entities (the entities here can be between individuals and individuals, between individuals and organizations or between organizations and organizations), a trademark only distinguishes goods and services of members of the organization that owns the trademark from goods and services of organizations and individuals that are not members of that organization. That is, the distinguishing function here is limited to entities that are members of the organization that owns the trademark from other organizations and individuals that are not members of the organization that owns the trademark. Thus, it can be seen that the distinguishing purpose of a trademark is different from that of a regular trademark.

Studying international and national regulations, we see different regulations on NHTT based on the economic, political and social conditions of each country.

(i) NHTT as prescribed by the Paris Convention

The Paris Convention contains provisions on trademarks set out in Article 7bis. “This Article obliges a Contracting State to accept for filing and protection, under specific conditions prescribed by that State, trademarks of “associations”. These are associations of producers, manufacturers, distributors, dealers or other traders of goods manufactured or produced in a particular country, local area or goods having other common characteristics. The trademarks of other States or public bodies are not subject to these provisions.

In order to be eligible for Article 7bis, the activities of associations owning IBs must not be contrary to the laws of the host country. The association does not have to demonstrate that it complies with the laws of the host country, but the registration and protection of its IBs may be refused if the existence of the association is deemed to be contrary to the provisions of law”.

Regarding owners: Because these are framework regulations for countries to have their own regulations suitable to their own conditions, the owners of the mentioned NTMs are also general, for example, the scope of "associations" is the owners of NTMs stipulated in the Convention as associations of manufacturers, producers, distributors, sellers or other merchants...

The Convention also stipulates that “the association does not have to prove that it complies with the laws of the host country, but the registration and protection of its intellectual property may be refused if the existence of the association is deemed to be contrary to the provisions of law”. This provision also reflects the nature of the framework provisions for each country to implement in accordance with its conditions because “the association does not have to prove that it complies with the laws of the host country”. However, in addition to the provision that it does not have to prove that it complies with the laws of the host country, the Convention also stipulates that the registration and protection of its intellectual property may be refused if the existence of the association is deemed to be contrary to the provisions of law.

Protection of industrial property rights for collective trademarks under Vietnamese Intellectual Property Law - 2

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