Unfair Competition Regarding Trademarks

Industrial property rights must submit an application for a certificate of protection to the competent state agency.

Thus, industrial property protection for trademarks includes three main contents:

 The State promulgates legal regulations on industrial property rights for trademarks.

 Establishing rights: The competent authority grants a Certificate of Trademark Protection (Certificate of Trademark Registration) to different entities when these entities fully meet the requirements as prescribed.

 Protection of rights: The State protects the rights and legitimate interests of industrial property rights holders regarding trademarks by applying various methods and measures.

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2.3. Conditions for trademark protection

A trademark that wants to be protected, or a sign that wants to be considered a trademark, must fully meet the conditions that have been standardized worldwide. In general, there are two basic types of conditions as follows:

Firstly, the signs used as trademarks must be unique or capable of distinguishing different products. That is, the trademark must help consumers distinguish the goods and services of a business from those of other businesses. Uniqueness here must be assessed in relation to the goods bearing the trademark[9]. For example, the word “apple” or the image of an apple cannot be registered for apples, but for computers, it becomes very unique, when it conveys a meaning unrelated to the product bearing the trademark. The uniqueness of a trademark also depends on consumer recognition. In other words, a trademark is considered unique when consumers look at the trademark and can identify the origin of the goods from a certain manufacturer and business, from which they can find and choose.

desired product. For this reason, it is not easy to establish a specific level of uniqueness for a trademark to be registered. In practice, they can base on the percentage of consumers who recognize the goods bearing the trademark as originating from a certain business establishment to determine the level of uniqueness of that trademark.

Furthermore, a trademark that is not distinctive, that is, does not perform the basic function of a trademark, will be refused a Certificate of Trademark Registration by the registration authority. Therefore, generic names; descriptive signs, that is, signs that indicate the characteristics of goods or geographical origin, rather than referring to the origin of the goods (distinguishing signs); simple shapes; or a long, confusing advertising slogan... will also not be registered as a trademark.

Second, signs that have misleading or deceptive characteristics or are contrary to public order and morality will not be considered trademarks [9]. These are considered excluded signs, signs that are not protected as trademarks. For the public good, marks that are likely to mislead about the nature, quality or other characteristics or commercial origin of the goods are not eligible for registration. A trademark that is distinctive does not mean that it will not be able to deceive the public. For example, a trademark that has suggestive, suggestive signs that make it distinctive may still be misleading when the products bearing the trademark do not have the characteristics reflected in the trademark. Thus, when considering a trademark, two separate aspects must be considered: the trademark must be distinctive and not misleading. For example, marks that are suggestive of the geographical origin of goods will be counterfeit if, in fact, the goods bearing the mark do not originate from the indicated area. In fact, a mark that is a direct indication of geographical origin

relatively rare, and businesses often use indirect references. This makes it very difficult to determine whether a mark is counterfeit or misleading to the public. Another aspect to consider is that the determination of whether a mark is misleading or not depends on the goods for which the mark is used. That is, depending on the product category, a trademark application may be considered distinctive and not misleading for some products, but counterfeit or misleading for others.

The trademark registration office will also reject trademark applications that are contrary to social morality or affect public order. For example, signs used are: vulgar pictures, symbols of state power agencies or illegal political parties; or signs that are symbols used by the State, international organizations, and organizations cannot be registered as trademarks.

The Vietnamese Intellectual Property Law also provides specific provisions regulating the conditions for protection of trademarks. According to Article 72 of the Intellectual Property Law, a trademark is protected if it meets the following two conditions: i) it is a visible sign in the form of letters, words, drawings, images, including three-dimensional images or a combination of these elements, expressed in one or more colors; ii) it is capable of distinguishing the goods and services of the trademark owner from those of other entities. Thus, a trademark will be protected by the National Office of Intellectual Property if it meets two conditions: it is perceptible and it is capable of distinguishing.

Regarding perceptibility, this is also a condition of protection stated in Clause 1, Article 15 of the TRIPS Agreement, according to which “… Members may require as a condition of registration that signs must be visually perceptible”.

However, currently, in some countries around the world, the scope of protected signs has also been expanded to include sound signs such as music, musical notes that people can recognize through "hearing", and taste signs that can be recognized through "smell" or trademarks that are simply expressed by a certain color.

Regarding the distinctiveness of a trademark, Article 74 of the Law on Intellectual Property provides the concept of what a distinctive trademark is in Clause 1 and signs that are considered to be indistinguishable in Clause 2. In general, signs that cannot be registered as trademarks include: simple shapes; common names of goods; signs describing product characteristics; legal form, business field of an enterprise; signs indicating the geographical origin of goods and services, signs that are identical or similar to the point of causing confusion with trademarks of identical or similar goods and services; Signs that are identical or similar to other industrial property objects such as trade names in use, geographical indications, and industrial designs that are being protected [16]. Determining whether a registered sign is identical to a trademark of similar goods or services or to other industrial property objects is a relatively simple task, by examining whether they are exact copies of each other. However, determining the “confusing similarity” between different types of trademarks or between registered trademarks and the above industrial property objects is quite a difficult task. Providing a common standard or answer for all cases to determine the confusing similarity is impossible due to the specific characteristics of each case.

Thus, it can be seen that the method of adjustment of Vietnamese law on the conditions for trademark registration is consistent with the method of adjustment of international law on industrial property. The above provisions are an important basis for establishing industrial property rights.

with trademarks as well as an important legal basis in deciding to handle unfair competition acts related to trademarks.

II. Unfair competition related to trademarks

1. Unfair competition

1.1. Concept of unfair competition

Competition has long existed and objectively existed in the process of formation and development of commodity production and has become a basic characteristic of the market mechanism. Competition is the driving force for economic development, because competition makes producers more dynamic, more sensitive, better grasps consumer needs, forces them to constantly improve techniques, apply the latest advances and successful research into production, perfect the organization of production and management to improve productivity, quality and economic efficiency. The purpose of competition is nothing other than how to make each enterprise's goods and services "sell well" in the market. Or to put it more generally, it is the issue of economic benefits that enterprises want to achieve through their production and business processes. The laws of all countries recognize and consider the right to fair competition as a natural right of enterprises and are protected by the State.

However, in today's economy, in contrast to healthy and honest business practices, there are more and more types of opportunistic business practices, using non-transparent tricks, and unfair competition by businesses that are "impatient" to have immediate profits without investing much money and effort. To achieve that, they have carried out dishonest commercial practices to create competitive advantages and profits for themselves. Such behavior affects other businesses, consumers, and more broadly, negatively impacts the entire economy. That is unfair competition.

So what is unfair competition?

Currently, there are many different views on unfair competition in the world. In general, there are 3 basic concepts as follows:

The first concept holds that “unfair competition includes all acts that harm competition in the market and harm the right of enterprises to fair competition”[2]. This concept is clearly reflected in the provisions of the Mongolian Competition Law.

The second concept is expressed in Article 10Bis of the Paris Convention for the Protection of Industrial Property, according to which, “any act contrary to honest practices in industrial or commercial matters constitutes unfair competition”.

The third concept of unfair competition states: “Unfair competition is the competitive behavior of enterprises in the business process that is contrary to common standards of business ethics, causing or possibly causing damage to the interests of the State, the rights and legitimate interests of other business entities or of consumers”.

Thus, according to the first concept, the scope of acts considered unfair competition is very broad, possibly including acts of competition restriction. This will cause difficulties in applying the law due to the different nature, characteristics, and level of harm to the market of the above acts. On the contrary, the scope of unfair competition acts according to the second concept is limited to acts of "dishonesty in commercial and industrial activities". The third concept has reconciled the limitations of the other two concepts, when competition is not only in the field of industrial property as in the second concept, but also extends to other fields. This is also the view of Vietnamese lawmakers when introducing the concept of unfair competition. As an object of intellectual property rights, the concept of unfair competition

not provided in the Intellectual Property Law. The Intellectual Property Law only lists acts that are considered unfair competition. The concept of “unfair competition” is provided in Clause 4, Article 3 of the Competition Law 2004 as follows:

“Unfair competition is the competitive behavior of enterprises in the business process that is contrary to common standards of business ethics, causing or possibly causing damage to the interests of the State, the rights and legitimate interests of other enterprises or consumers” [17].

From the definition of unfair competition stated in the Competition Law, it can be seen that unfair competition must have the following signs:

 For competitive purposes;

 Aimed at existing (specific) competitors, or in other words, it is impossible to talk about unfair competition when the subjects are not in a "competitive" position with each other [44];

 Violating the law or going against good ethics and customs;

 Has directly or indirectly caused harm to competitors, and thereby sought to create for itself unjust advantages or strengths.

Thus, not every act that harms the interests of an enterprise is considered unfair competition, but only acts originating from a subject towards competitors in the relevant market, including the relevant product market and the relevant geographical market; directly or indirectly causing harm to competitors are considered unfair competition.

After learning about unfair competition and considering the signs showing the nature of unfair competition mentioned above, the thesis will go into learning about unfair competition behaviors.

specifically, stipulated in current legal documents of Vietnam.

According to Article 39 of the 2004 Law on Competition of Vietnam, the following 10 acts are considered acts of unfair competition:

 Misleading instructions;

 Infringement of trade secrets;

 Coercion in business;

 Defamation of other businesses;

 Disrupting the business operations of other enterprises;

 Advertising aimed at unfair competition;

 Promotions aimed at unfair competition;

 Association discrimination;

 Illegal multi-level marketing;

 Other acts of unfair competition according to the criteria specified in Clause 4, Article 3 of this Law as prescribed by the Government[17].

Thus, the 2004 Law on Competition of Vietnam specifically lists 10 acts of unfair competition. Of the 10 acts of unfair competition mentioned above, only the first two acts, namely: “misleading instructions” and “infringement of trade secrets”, are considered to be directly related to the field of industrial property. Other acts such as: association discrimination, advertising for unfair competition, etc., are only indirectly related to the field of industrial property and do not occur commonly in practice.

However, due to the relatively broad scope of the Competition Law 2004, in addition to unfair competition related to the field of intellectual property, the Competition Law also regulates unfair competition occurring in other fields of production and business. Therefore, to be closer to the research subject of the thesis, which is unfair competition in

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