You asked: In business, trademark protection plays a crucial role for enterprises. However, certain signs cannot be protected as trademarks. According to the Law on Intellectual Property, which signs are ineligible for trademark protection? What are the general conditions for a sign to be protected as a trademark?
- Legal Counsel: Pursuant to Article 73 of the 2005 Law on Intellectual Property (as amended and supplemented by Clause 21, Article 1 of the 2022 Law Amending and Supplementing the Law on Intellectual Property), signs that cannot be protected as trademarks include:
Signs that are identical or confusingly similar to the national flag, national emblem, or national anthem of the Socialist Republic of Vietnam or any other country, or to international anthems;
Signs that are identical or confusingly similar to the symbols, flags, emblems, abbreviations, or full names of state agencies, political organizations, socio-political organizations, socio-political-professional organizations, social organizations, or socio-professional organizations of Vietnam or international organizations, unless authorized by such agencies or organizations;
Signs that are identical or confusingly similar to the real names, aliases, pen names, or images of leaders, national heroes, or famous figures of Vietnam or other countries;
Signs that are identical or confusingly similar to certification marks, inspection marks, or warranty marks of international organizations that have prohibited their use, unless such organizations themselves register these marks as certification trademarks. Signs that are misleading, likely to cause confusion, or deceptive to consumers regarding the origin, features, utility, quality, value, or other characteristics of goods or services;
Signs that consist of the inherent shape of the goods or a shape necessitated by the technical characteristics of the goods;
Signs that contain a reproduction of a copyrighted work, unless the permission of the copyright holder has been obtained.
Consequently, the signs mentioned above cannot be protected as trademarks.
Pursuant to Article 72 of the 2005 Law on Intellectual Property, as amended by Clause 20, Article 1 of the 2022 Law Amending and Supplementing the Law on Intellectual Property, the general conditions for a trademark to be protected are as follows:
“Article 72. General conditions for the protection of trademarks
A trademark shall be protected if it meets the following conditions:
1. It is a visible sign in the form of letters, words, drawings, images, three-dimensional shapes, or a combination thereof, represented in one or more colors, or a sound sign that can be represented graphically;
2. It is capable of distinguishing the goods or services of the trademark owner from those of other entities.”
Accordingly, a trademark is eligible for protection when it satisfies the aforementioned conditions.