Protection of industrial property rights for trade names according to the provisions of Vietnamese law

3. Research purpose of the topic

Based on the study of theoretical issues on trade names and trade name protection; assessing the current status of trade name protection in Vietnam, the thesis proposes a number of solutions to improve the legal framework and improve the effectiveness of current trade name protection in Vietnam.

To achieve the above purpose, within the framework of the master's thesis in law, the author focuses on the following tasks:

Analysis of theoretical basis for trade name protection

Analysis and evaluation of the current status of trademark protection in Vietnam

Maybe you are interested!

Proposing solutions to improve the law and enhance the effectiveness of trade name protection in Vietnam.

4. Scope of research of the topic

The thesis focuses on studying the issue of trade name protection within the scope of current Vietnamese law, specifically studying the following aspects:

- Some theoretical issues and current status of trade name protection in Vietnam. Specifically, the concept, content and role of trade names, trade name protection in business operations, its advantages, shortcomings and causes.

- Propose some solutions to improve the law and enhance the effectiveness of trade name protection.

5. Research methods

The thesis is researched on the basis of historical materialism methodology, dialectical materialism, dialectics of Marxism-Leninism, and the viewpoints of our Party and State on law.

In addition, during the research process, the thesis applied a number of specific methods as follows: Analytical method to clarify the contents within the scope of the research; comparative method is used to clarify the level of correlation between regulations and viewpoints in order to have objective assessments and comments on the research content; synthesis method is used to systematically generalize the research content, making the research problem concise, concise, easy to understand; statistical method provides a more specific perspective through specific numbers and cases...

6. New research results of the thesis

The thesis is a relatively comprehensive and systematic monograph on the issue of trade names and trade name protection according to the provisions of current Vietnamese law. Therefore, it has the following new scientific contributions:

Firstly , present and explain basic arguments about trade names, especially: Concept, characteristics, content, and significance of trade name protection for businesses...

Second, from the difficulties and reality in law enforcement as well as handling of infringements and violations of the law on protection of industrial property rights for trade names, analyze the causes and existing problems.

Third, based on scientific and practical arguments, propose solutions and recommendations to improve the legal framework and enhance the effectiveness of trade name protection activities.

7. Structure of the thesis: The thesis consists of 3 chapters.

Chapter I: Some basic theoretical issues on trade name protection

Chapter II: Current status of industrial property protection activities for trade names in Vietnam

Chapter III: Directions and solutions to improve the law and enhance the effectiveness of trade name protection activities

Chapter 1‌‌

SOME BASIC THEORETICAL ISSUES ON TRADE NAME PROTECTION

1.1. Overview of trade names

1.1.1. Concept of trade name

Although not a commodity, a trade name has great significance in the business activities of an enterprise. A trade name is one of the basic objects of industrial property rights, so the laws of many countries in the world and Vietnamese law today always attach importance to the protection of trade names. However, the concept of a trade name is still not uniformly understood in countries.

To date, there is only one multilateral international treaty that directly addresses the issue of industrial property protection for trade names.

– that is the Paris Convention of 1883. But this Convention does not give a specific definition of a trade name.

Trade name is a concept used in Vietnamese legal documents and practices, it is equivalent to the English concept in international law "Tradename". Trade name should not be confused with trademark (Trademark), nor should trade name be confused with brand. Trade name is regulated in a number of Vietnamese legal documents such as the Civil Code, Enterprise Law, Intellectual Property Law... According to the provisions of Clause 21, Article 4 of the 2005 Intellectual Property Law, trade name is understood as follows:

A trade name is the name of an organization or individual used in business activities to distinguish the business entity bearing that name from other business entities in the same field and business area (business area).

is the geographical area where the business entity has partners, customers or reputation).

A trade name must be a collection of pronounceable and meaningful letters.

Basically, because it is used in the business activities of the enterprise, the trade name must meet the requirements of the enterprise law for the enterprise name. Currently, according to the provisions of the Enterprise Law, enterprises are allowed to register three names: (i) Name in Vietnamese, (ii) Name in a foreign language (often called transaction or foreign name), (iii) Abbreviated name. With the provision "transaction name is translated from Vietnamese into the corresponding foreign language" [9], but in essence, enterprises only have two names: the Vietnamese name and the abbreviated name. Because the transaction name is unstable and depends on the language being translated, for example: The name of an enterprise when translated into English is A, translated into French is B, and translated into Japanese is C...

The Law on Enterprises requires that the name of an enterprise must have at least two elements: the type of enterprise and the proper name, and must not be identical or confusingly similar to the name of a registered enterprise. With such a provision, the name of an enterprise under the Law on Enterprises has many similarities with a trade name (because the Law on Intellectual Property stipulates that a trade name will be protected if: It contains a proper name (except in cases where it has become widely known through use); it is not identical or confusingly similar to a trade name that another person has used before in the same business field and area; it is not identical or confusingly similar to another person's trademark or to a geographical indication that was protected before the date the trade name was used). At the same time, the Law on Enterprises and the Law on Intellectual Property do not allow the use of the names of state agencies, political organizations, socio-political organizations, socio-political-professional organizations, social organizations, and other organizations.

social - professional organization or other entity to make a business name or trade name.

Because of these similarities, the current trade name tends to be determined through the name of the enterprise according to the Enterprise Law. The trade name can therefore be the full name of the enterprise or the abbreviated name of the enterprise. Most commonly, the trade name is used to indicate the full name of an enterprise when conducting its business activities.

The full business name consists of two parts: the descriptive part and the distinguishing part. The descriptive part is a collection of meaningful words that briefly describe the type of business. The distinguishing part is a collection of pronounceable letters, which may or may not have meaning. The descriptive part does not have the ability to create a distinctiveness for the business name (two businesses with different business names may have the same descriptive part). For example: with the name "S & B Law Firm", the descriptive part is "Law Firm" which is not able to distinguish from other law firms, the distinguishing part is S&B; with the name Thanh Do Construction Company Limited: The descriptive part is "Construction Company Limited", the distinguishing part is "Thanh Do", distinguishing from "Tien Thanh Construction Company Limited".

Trade name according to the enterprise name as an abbreviation: According to the provisions of the Enterprise Law, the abbreviation of the enterprise name is an abbreviation of the Vietnamese name or the foreign language name. For example: Vietnam Bank for Agriculture and Rural Development has the international transaction name of Vietnam Bank of Agriculture and Rural Development, the abbreviation is Agribank. Thus, the trade name is the name of the organization or individual used in

business activities to distinguish the business entity bearing that name from other entities in the same business field.

1.1.2. Characteristics of trade names

From the analysis above, it can be seen that a trade name includes the following characteristics:

A trade name is the name of an individual or organization used in business activities. Therefore, the use of a trade name must have legal significance only when there is an individual or organization with a trade name. In other words, a trade name is always associated with the existence of an individual or organization. To be established, a trade name must also be used through business activities. From the above definition, a trade name can be considered the first means of communication between a business and other entities.

A trade name is used to distinguish the business entity bearing that name from other business entities in the same field and business area. This characteristic of a trade name helps us distinguish it from a trademark, because a trademark is a sign to distinguish goods and services of the same type from different production and business establishments.

The full trade name must be a set of pronounceable and meaningful letters.

meaning

Trade names in Vietnam are formed according to the principle of "freedom of expression".

choice”. Individuals and organizations are completely free to choose the trade name as the trade name under which they will conduct their business activities. However, there are certain restrictions on the choice of trade name, for example: The trade name must not violate the historical, cultural, ethical traditions and customs of the nation; the trade name of a Vietnamese enterprise must be written in Vietnamese and can be supplemented with one or more foreign languages in a smaller font size; it is mandatory to include in the trade name the indications on the nature and scope of responsibility of the business entity (for example: “Liability”).

limited liability company, “shareholding company”, “private company”, “partnership” (see Clause 2, Clause 3, Article 24 of the Commercial Law and Clause 1, Article 24 of the Enterprise Law).

1.1.3. The role of trade names in business operations

Trade name is an object of industrial property law, plays an important role in the operation of enterprises, can create competitiveness, contribute to increasing the value of goods of enterprises while the material value remains unchanged, is a factor contributing to the development and success of enterprises. This industrial property object is considered one of the first and important factors in the strategy of market penetration and expansion, in many cases deciding the success or failure of enterprises in new markets. The above industrial property object has the following effects:

- Perform the function of recognition (distinguishment). Trade names are always clearly recognized by sight and hearing (sound) so that consumers can recognize and choose according to their preferences.

- Make consumers save time and effort in choosing and purchasing products according to their purposes and preferences.

- Guarantee or trust helps consumers find stable quality of products and services with familiar trade names no matter where and when they buy.

- Ensure that consumers can buy the best and most secure products or services of the same type.

- Personalize, character, and separate image for each consumer in the eyes of others. Create a unique style for consumers and thereby make them love the products bearing that trade name.

- Continuity is conceived as consumers being satisfied with a brand name product that they have been using for many years.