Trademark protection in Vietnamese law and European Union law

and effectiveness in handling complaints at the National Office of Intellectual Property, and will limit the situation of complaints going beyond the level, causing waste of time, effort and money of the complainant and the complaint handling agencies. Solving this is a step in the administrative reform process in Vietnam's state agencies today.

3.3.4. Establishment of a specialized court on intellectual property

The significance and role of the Court in protecting intellectual property rights in general and trademark rights in particular is beyond dispute. However, due to the special nature of intellectual property cases, which are not the same as ordinary cases, there is a need for specialization in the Vietnamese court system. In fact, since the court was identified as an enforcement agency in the field of intellectual property, the effectiveness of this agency's operations has been very weak. There are many reasons to explain this phenomenon, however, in our opinion, the main reason is that the current court system is not a court organized and established according to the model of a specialized court. Only when there is a specialized court in the field of intellectual property, then the effectiveness of dispute resolution through the court can be effective. This is a model that European countries, China, Thailand, Germany, Japan, etc. have applied very successfully. Therefore, in our opinion, in the near future Vietnam needs to build a specialized court in the field of intellectual property.

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CONCLUDE

The European Union's law on trademark protection is a relatively new and complicated issue due to the interweaving of many legal systems: the individual laws of each member state of the union; the common law of the community; and multilateral international treaties related to trademark protection. Although it is impossible to clarify and thoroughly cover all issues of trademark protection, the thesis has comprehensively and systematically outlined the European Union's law on trademark protection, from the source of the governing law, concepts, definitions of trademarks and trademark protection, mechanisms and methods of establishing and protecting rights to trademarks to clarifying some basic points about the NHCĐ Court system in resolving disputes related to the rights of NHCĐ owners, focusing on clarifying the distinctiveness of trademarks according to the provisions of the legal system on NHCĐ protection.

The characteristics of the legal system on the protection of intellectual property rights are built around two basic categories: " Absolute grounds for refusal " and " Relative grounds for refusal ". These are the two core categories of the legal system on the protection of intellectual property rights. These two categories permeate the entire legal system on the protection of intellectual property rights and are related to most of the protection regimes for intellectual property rights such as protection standards, grounds for objection, grounds for cancellation of rights to intellectual property rights and the jurisdiction of the Intellectual Property Court.

Unlike the Vietnamese legal system on trademark protection, the NHCĐ content examination regime is based on the examination regime of oppositions conducted by third parties. OHIM – the NHCĐ registration management agency does not automatically examine the content of the application. The NHCĐ registration application is only examined on the content to determine whether or not the NHCĐ is confusingly similar or in conflict with a prior trademark based on the opposition request, and only within the scope of the opposition request. If no opposition from the owner of the prior trademark (third party) is filed within the prescribed time limit, the NHCĐ will be granted a Certificate of registration for protection. Therefore, in theory, even if the NHCĐ is granted a Certificate of registration for protection, it still cannot be guaranteed that the NHCĐ is not in conflict with the prior trademark. Risk of NHCĐ being requested to be declared invalid

after being registered, therefore, is still very large. That requires the owner of the NHCĐ to always be ready to face disputes and conflicts that may arise at any time within the 5-year statute of limitations from the date of registration.

The criteria for assessing the distinctiveness of a trademark under the legal system on trademark protection are “ very open ”, highly general, but very strict, unified and logical. From regulations to case law, it is affirmed that “ Any sign can be registered as a trademark as long as it has the ability to distinguish ”. On the contrary, comparing with the Vietnamese legal system on trademark protection, it shows that the provisions of Vietnamese law are very detailed but not strict and illogical.

The distinctiveness of NHCĐ still exists even in cases where under the Vietnamese IP Law it would not be protected, such as in the case of a trademark that is a combination of descriptive signs, provided that such a combination can have many different meanings and, importantly, the descriptive meaning does not immediately make consumers think of the nature, quality and origin of the goods bearing the trademark. Likewise, trademarks that are one or two letters combined are also distinctive, except in the case of a single letter without any other unusual signs. Similarly, the remaining cases are also considered to have distinctiveness, such as trademarks that are words indicating geographical origin if there is no association between the geographical indication and the goods bearing the geographical indication; trademarks that are signs that have become common in current language and commerce if they do not have a common descriptive character of the goods.

The order, procedures and methods for handling objections, complaints and cancellation of ownership rights according to the law on land use rights are very strict, ensuring objectivity and fairness.

The research results of the thesis are not only theoretical but also highly practical, because in the research process we not only research on the provisions of positive law, but mostly research through precedents. The precedents themselves

This has clarified the provisions of the NHCĐ trademark law. Therefore, the research results of the thesis, on the one hand, clarify the provisions of the written law, on the other hand, have the value of reflecting on the current provisions of Vietnamese law on trademark protection to find out the appropriate and inappropriate points, and at the same time, is the theoretical basis for amending Vietnamese law on trademark protection, especially amending and supplementing a number of articles of the current Law on Intellectual Property.

REFERENCES

Vietnamese

1. Civil Code dated June 27, 2005

2. Civil Procedure Code dated June 15, 2004

3. Law on Intellectual Property dated November 29, 2005.

4. Commercial Law dated June 14, 2005

5. Decree No. 06/2001/ND-CP dated February 1, 2001 of the Government amending and supplementing a number of articles of Decree No. 63/CP dated October 24, 1996

6. Decree No. 103/2006/ND-CP dated September 22, 2006 of the Government detailing and guiding the implementation of a number of articles of the Law on Intellectual Property on industrial property.

7. Decree No. 105/2006/ND-CP dated September 22, 2006 of the Government detailing and guiding the implementation of a number of articles of the Law on Intellectual Property on the protection of intellectual property rights and State management of intellectual property.

8. Decree No. 106/2006/ND-CP dated September 22, 2006 of the Government providing for administrative sanctions for violations of industrial property.

9. Decree No. 12/1999/ND-CP dated March 6, 1999 of the Government on administrative sanctions for violations in the field of industrial property.

10. Decree No. 63/CP dated October 24, 1996 of the Government detailing industrial property

11. Decree on administrative sanctions dated July 2, 2002

12. Circular 825/2000/TT-BKHCNMT dated May 3, 2000 of the Ministry of Science, Technology and Environment (now the Ministry of Science and Technology) on guiding the implementation of Decree No. 12/1999/ND-CP

Other references

13. Department of Intellectual Property (2005), Intellectual Property Handbook , Ministry of Culture and Information Publishing House, Hanoi.

14. Dr. Nguyen Ba Dien (editor) (2001), International Justice Textbook , Hanoi National University Publishing House, Hanoi.

15. Dr. Nguyen Ba Dien (editor-in-chief) (2005), International Commercial Law Textbook , Hanoi National University Publishing House, Hanoi.

English

16. Act No. 441/2003 on Trademarks of Czech Republic, in force since 1 April 2004 of Czech Republic.

17. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

18. Commission Regulation (EC) 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs).

19. Commission Regulation (EC) No 1041/2005 of 29 June 2005 amending Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark.

20. Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark.

21. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters , signed in Brussels on September 27, 1968.

22. Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

23. Court of First Instance (2000), Case R 0422/1999-1. http://oami.europa.eu/legaldocs/boa/1999/DE/R0422_1999-1.pdf

24. Court of First Instance (2001), Case No. 2309/2001.

http://oami.europa.eu/en/mark/aspects/ecjcases.htm

25. Court of First Instance (2002), Case R 67/2002-2. http://oami.europa.eu/en/mark/aspects/ecjcases.htm

26. Court of Justice of the European Communities (1997), Case C-251/95. http://oami.europa.eu/en/mark/aspects/ecjcases.htm

27. Court of Justice of the European Communities (1999), Case C-108/97. http://oami.europa.eu/en/mark/aspects/ecjcases.htm

28. Court of Justice of the European Communities (2003), Case C-191/01. http://curia.eu.int/jurisp/cgi-bin/gettext

29. First Council Directive (EC) 89/104 of 21 December 1988 to approximate the laws of the Member States relating to trade marks.

30. Julian Gyngell, Allan Poulter (1999), The Community Trade Mark – Regulations Practice and Procedures , International Trademark Association .

31. Law No 92-597 of 1 July 1992 of France, on the Intellectual Property Code.

32. OHIM (1998), Case R 20/97-1.

http://oami.europa.eu/EN/mark/aspects

33. OHIM (1999), Case R 91/1998-2

http://oami.europa.eu/search/LegalDocs/la/en

34. OHIM (2000), Decision No 2513/2000.

http://oami.europa.eu/search/legaldocs/la/en_Opposition

35. OHIM (2001), Decision No 110/2001 http://oami.europa.eu/search/legaldocs/la/en_Opposition

36. OHIM (2001), Decision No 244/2001 http://oami.europa.eu/search/legaldocs/la/en_Opposition

37. Paris Convention of March 20, 1883, effective July 7, 1884 as amended at Stockholm on July 14, 1967, and October 2, 1979, effective June 3, 1984.

38. Rules of Procedure of the Court of First Instance of the European Communities of 2 May 1991.

39. Tibor Gold (Kilburn & Grose), Richard Abnett (Reddie & Grose), Keith Farwell (Phillips & Leigh) (2001) , The Community Trade Mark Handbook , London Sweet & Maxwell.

40. Trade Marks Act 1994 of United Kingdom

41. Trademark Law Treaty (1994) and Regulations

42. WIPO (1993), Introduction To Trademark Law & Practice , GENEVA.