Some Specific Recommendations for Improving the Law

international standards or commitments, we need to ensure the commitments in the regulations so that there are no disputes in law enforcement.

There have been different opinions about whether a sign of non-Latin origin is considered to be non-distinctive. Is this provision consistent with international standards?

The Vietnamese Intellectual Property Law has some provisions restricting the registration of signs that are words that are not in Latin languages such as Chinese, Japanese, Korean... which are signs that are not distinguishable. This can be explained by the fact that Vietnamese people cannot recognize or remember these languages, so it will not ensure the distinguishing function of the trademark. This is completely consistent with the provisions of the TRIPS Agreement. Article 15.1&2 of the TRIPS Agreement stipulates: “Any sign, or combination of signs, capable of distinguishing the goods or services of one enterprise from those of other enterprises, may be used as a trademark. Such signs, especially words, including proper names, letters, numerals, figurative elements and combinations of colors as well as any combination of such signs, must be capable of being registered as a trademark. Where signs are not by themselves capable of distinguishing the goods or services concerned, Members may require that registrability be dependent on distinctiveness acquired through use. Members may require that signs be visually perceptible as a condition of registration”. The Agreement makes it clear that any sign that satisfies the criteria of distinctiveness may be registered as a trademark.

As the most general regulations for member countries when participating in the Agreement, the provisions of the Agreement will cover many different cases for members to choose from as appropriate.

with the conditions of each member country and is not mandatory for members.

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Vietnam's regulation that signs in languages other than Latin origin are not common and cannot be registered as trademarks (in case the sign is not combined with other elements) is in accordance with international standards, specifically the TRIPS Agreement: "Such signs, in particular words, including proper names, letters, numerals, figurative elements and combinations of colors as well as any combination of such signs, must be capable of being registered as trademarks". However, an exception in the provisions of Vietnamese law for signs not of Latin origin that are still accepted as trademarks is that the sign has been widely used and recognized as a trademark in Vietnam. That is, a sign in languages other than Latin origin can still be registered for protection as a trademark if the owner can prove that the sign has been widely used and recognized as a trademark. However, in reality, not many cases prove this exception.

Current reality shows that most countries, including Vietnam, study the regulations of the EC Commission Regulation No. 1898/2006 dated February 14, 2006 detailing the implementation of the Council Regulation on the protection of geographical indications and indications of origin of agricultural and food products, thereby seeing the role of organizations of producers, building a system of control and reputation protection... This is also one of the factors to create conformity in the regulations on the protection of Vietnamese trademarks compared to the world.

Second : Suitable for Vietnamese reality

Building legal regulations to protect intellectual property rights not only requires compliance with international law but also needs to be consistent with Vietnamese reality.

Legal regulations that are consistent with international standards are only one of the factors when drafting legal documents. What is especially important and necessary is that these regulations must be consistent with the reality of Vietnam. Only when they are consistent with the reality of the country can they create the necessary factors for the regulations to be implemented and effective. In fact, international treaties or bilateral and multilateral agreements all have provisions that, depending on the conditions of each country, countries can draft appropriate legal regulations. For example, the Paris Convention has provisions on trademark registration in the content of the trademark as follows:

“The Paris Convention does not regulate the conditions for filing and registration of trademarks, but leaves this to the national laws of the member countries. Once a trademark is registered in a member country, that registration is independent of any registration that may exist in any other member country, including the country of origin. Therefore, if a trademark registration is invalidated in one member country, it will not affect the validity of the same trademark registration in the other member countries.”

This means that the Convention does not specifically prescribe to member countries whether trademark protection must be through registration procedures or based on use... but this is left to the laws of each country. Each country has its own regulations suitable to the reality of its country.

For Vietnam, the development and improvement of intellectual property protection laws to be consistent with the country's reality needs more attention than ever. Vietnam's unique characteristics require appropriate legal regulations, which are reflected in the following aspects:

 Our country is an agricultural country, the subjects when registering for NHTT are often associated with agricultural products or traditional specialties (accounting for the majority of applications at the National Office of Intellectual Property). Therefore, perfecting the law on protection

The State Bank needs to pay attention to this reality and the regulations need to fully exploit those products and services, creating conditions for expanding to other products and services.

 Another reality of our country that needs to be taken into account when perfecting the law on the protection of collective bargaining is that the ownership of collective bargaining can exist in various forms, including the form of Cooperatives or Cooperative Groups... most countries in the world no longer have this form. Therefore, the perfection of legal regulations needs to pay attention to the practical characteristics of Vietnam, thereby providing appropriate regulations on the rights and obligations of collective bargaining owners in general and for Cooperatives and Cooperative Groups in particular.

Third : There should be separate regulations on the protection of intellectual property rights and these regulations should be based on scientific research results.

In addition to the concept of intellectual property rights stated in the explanation of terms, our country's Intellectual Property Law does not have a separate provision on the protection of intellectual property rights; the provisions of this subject are often understood in terms of ordinary trademarks. This causes considerable difficulties in the application and enforcement of the law. Because intellectual property rights and ordinary trademarks have many differences, such as in terms of subject, nature, management, and use, etc. Therefore, it is necessary to build model models for the protection of intellectual property rights, such as building a model regulation on the management of intellectual property rights. Here, there should be separate provisions on owners, protection conditions, conditions of use, etc. to create a common framework for registration and use.

The European Community has been very successful in establishing the Regulation on the Protection of Traditional Products, and these European regulations have been learned and applied by many countries. In particular, Regulation 516/2009 guides the Council's regulations on the registration of agricultural products or traditional specialties.

The requirement to perfect the law on intellectual property protection must be based on scientific research results with the aim of making appropriate regulations.

appropriate and applicable in practice. At the 2005 international conference on Geographical Indications and Geographical Appellations of Origin held in Paris, the role of scientific research in institutional development was mentioned: “One of the topics discussed and exchanged was that the successes in research have contributed to promoting the development of the state's institutional policies on Geographical Indications and Geographical Appellations of Origin. The issue is the need to clarify the role between research and development activities. The development of the above subjects will take place based on scientifically proven results. The achievements in the development of the two subjects in European countries such as Italy, Switzerland, Spain... have been achieved as scientific results that have become the basis for building and consolidating the institutional policy system”. The issues raised at the conference in Paris are correct and have been confirmed and verified in practice.

Fourth : Completing the law on protection of intellectual property rights requires attention and balancing the interests of subjects such as owners and users.

A public limited liability company is owned by an organization and used by members, so there must be regulations that balance the interests of the entities. Currently, the regulations of the law on the protection of public limited liability companies do not ensure the balance of interests between the entities. Each member often puts personal interests above the collective interests, so it is difficult to achieve the common goal set out when establishing a public limited liability company. Currently, although the regulations on the use of public limited liability companies state the specific rights and obligations of the owners and users in the Regulations on the management and use of public limited liability companies, in reality, these regulations are only formalities and do not ensure the interests of the members.

Fifth : Completing the law on protection of intellectual property requires the participation of the State, relevant ministries and the people.

The combination of the above subjects creates synchronous development by

Each entity has a different function. People in the process of using will see the achievements and limitations of the law on intellectual property protection, thereby giving opinions for state agencies to synthesize as a basis for construction or amendment accordingly. Not only the provisions of the law but all sectors need the coordination of people and state agencies.

3.2. Some specific recommendations for improving the law

3.2.1. Completing regulations on the use of signs as NHTT

In fact, Vietnam currently only accepts visible signs, that is, signs that can be recognized by sight, as trademarks and excludes signs that can be recognized by smell or hearing. However, in reality, the Law only stipulates that “A trademark is a sign used to distinguish…”, only stipulating that a sign is used to distinguish will easily make people understand that this sign includes both common signs (recognized by sight) and uncommon signs (recognized by hearing or smell). This creates considerable difficulty in understanding and applying the law. The Law amending and supplementing a number of articles of the 2009 Law on Intellectual Property has overcome some limitations of the 2005 Law on Intellectual Property, however, the issue of signs used as trademarks is not mentioned in the amendment.

In the world today, there are many countries that use uncommon signs as trademarks. For example, “in the US, there are up to 30 trademarks registered as sound trademarks. A typical trademark in the form of sound is the roar of the lion of the MGM (Metro-Goldwin-Mayer) film studio” [37]. This has brought benefits to each individual when registering trademarks for objects such as their own taste and sound. With the development of science and technology, these objects are increasing.

Vietnam has joined the World Trade Organization, so Vietnam

It is also necessary to amend and supplement the regulations related to signs used as trademarks in general and NHTT in particular so that they do not only stop at visible signs but also include invisible signs. Only then can we integrate with the world economy, encourage foreign investors and contribute to the development of the country's economy. Ensure fairness in the interests of the subjects who own languages that Vietnam considers uncommon and ensure the interests of Vietnamese consumers. According to the opinion of Master Vu Thi Hai Yen in the Law Journal in March 2003, "In today's era, goods and services are increasingly abundant and diverse, manufacturers are always looking for new, unique and attractive brands for their products, goods and services to impress the public. With the current global trend, the recognition and protection of goods in many different countries is becoming more and more popular. Therefore, it would be a shortcoming if our law did not protect new types of trademarks (taste and sound trademarks) that have been accepted for protection by many countries” [31]. However, in order for signs to be used as trademarks, including uncommon signs, it requires a combination of many factors such as changes in legislative techniques, a clear legal mechanism, and improved appraisal skills of appraisers… Only the combination of the above factors can create a solid legal basis to make changes in the provisions of the Law in a direction that is more consistent with international law.

In addition, for trademarks in uncommon languages, instead of rejecting the trademark because of its lack of distinctiveness, it is advisable to accept the registration of the sign as a figurative trademark. Point a, Clause 2, Article 74 should be amended as follows:

“A trademark is considered to be incapable of distinguishing if it is a sign falling into one of the following cases:

a) Simple shapes and geometries, letters, numbers, words in uncommon languages (except in cases where words in such uncommon languages are registered as figurative trademarks) …”

Furthermore, the signs used as trademarks submitted for registration are often signs associated with geographical names (although the Law does not require these signs to be associated with geographical names), but in reality, trademark registration applications are often associated with specific geographical names and people often implicitly understand that trademark registration must be associated with one or more traditional products and services associated with a specific geographical name. This has greatly limited the development of other products and services when registering trademarks. According to statistics from the National Office of Intellectual Property at the National Conference on Intellectual Property held in Lang Son in 2010, there are many traditional products, with 933 specific products, associated with 21 geographical names. Although the Law does not stipulate that trademarks must be registered for a particular traditional product or service, in reality, most trademark registration applications are for traditional products or services. This reality is not due to the lack of specific and clear regulations on signs used as intellectual property rights, but may be due to the influence of the Program to support the development of intellectual property rights of enterprises (abbreviated as Program 68) for the period 2005-2010 approved under Decision No. 68/2005/QD-TTg dated April 4, 2005. The goal of this Program is traditional agricultural products. The benefits of Program 68 have been summarized by the National Office of Intellectual Property as follows: "It has contributed to creating a strong movement in information, propaganda, and dissemination of knowledge about intellectual property rights to the community, contributing to positive changes in the awareness of all levels, sectors and the whole society about intellectual property rights; initially shaping the use of intellectual property tools to enhance the value and competitiveness of products, especially agricultural products ...". That affects the fact that applications for intellectual property rights are often associated with geographical names.

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