Sunday, February 25, 2018

d. Examination process of trademark

Formality examination
The trademark application will undergo formality examination within 01 month as from its filing date; However, in practice, it may be extended to further 01–02 months if there is shortcomings on formality of the application. In the formality process, the trademark application shall be examined to its unity, accuracy of information, proper classification of goods/services., etc. If the trademark application is rejected due to its incompliance with the formality criteria, the applicant will be given 01 month for amendment or correction and this peirod can be extended to an additional 01 month.

Decision on Acceptance as to formality of a Trademark Application
If the trademark application meets all requirements as to formality, the NOIP shall issue a Decision on acceptance as to formality for the trademark application. Any related information of the trademark application shall be accordingly recorded.

Publication of Application
According to Article 110, IP Law of Vietnam, the application is published in the National Gazette within 02 (two) months as from the signing date of the Decision on Acceptance as to formality for opposition of a third party and simultaneously examined as to registrability. During a period from the publication date to the date on that a decision on granting/refusal of a certificate of trademark registration is issued, any third party shall be entitled to file opposition(s) against pending application(s) with the NOIP.

Substantive examination
The application is subsequently examined as to registrability to identify whether or not it meets the criteria for protection such as distinctiveness, availability, etc. The result thereof is expected available within 09 to 12 months from the date of Decision on Acceptance of Trademark Application.

Upon completion of the substantive examination, if the trademark application (i) meet the protection criteria, the NOIP shall issue the Decision on intention to grant a Certificate of Trademark Registration and request the applicant to pay fees for granting, publication of the registration or (ii) does not meet protection criteria, the NOIP shall issue a Notification of refusal and give 02 months for the applicant to respond. The applicant shall be entitled to request for extension of a further 02 months.

Decision on refusal to grant a Trademark Registration Certificate
In case, the applicant does not file the response to NOIP’s Notification in due course or the submitted response is not acceped by the NOIP, the NOIP shall issue a Decision on refusal to grant a Trademark Registration Certificate and give 90 (ninety) days for applicant to proceed with appeal.

Decision on intention to grant a Trademark Registration Certificate
In case, the substantive examination shows that the trademark application is qualified for protection or the response to Notification of refusal is accepted, the NOIP shall issue a Decision on intention to grant a Certificate of trademark Registration and request the applicant to pay fees for granting, publication of trademark registration.

Registration
Fees for granting and publication must be paid within 01 month as from the signing date of Decision on intention to grant a Trademark Registration Certificate. After the given time, if no fee is paid, the application will be dismissed. Whereas, if fees are sufficiently paid, the NOIP shall issue a Trademark Registration Certificate and return the original to the applicant.

The legal protection of a trademark begins from the date on which the Trademark Registration Certificate is granted and shall be valid for a period of ten (10) years as from its filing date and can then be renewed indefinitely for consecutive periods of 10 years.

The registered trademark needs not be in use in Vietnam at the time of registration, but it is vulnerable to validity termination if it is not used for five (5) consecutive years computed backward in time from the date on which a request for termination of the validity of the registration is made by any third party. However, if the mark is used or re-used at least 3 months prior to the date of the request for termination, the mark likely avoids the termination

Publication of Registration
Upon registration, the registered trademark shall be published in the Official Gazette of Industrial Property and recored in the National Register

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