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Formality
examination
All trademark applications shall be examined as
to formality by the NOIP. It takes three (03) months from the
filing date for the NOIP to check whether the application is made in
due form, the trademark concern un-registered trademark, or
check the classification of the list of goods and/or services and the
sufficiency of fee payment.
During the formality examination period, the applicant may make
amendments or correction to the documents of the application and the
classification of goods/services.
Notification of shortcomings
Deadline to file response for NOIP’s notification of shortcoming is
2 months from the date of signing the Notification.
Publication of the
application
All trademark applications accepted as to form
shall be published in IP Gazette, Volume A (for applications) in the
2nd month from the acceptance date.
Content of publication of trademark applications in the Industrial
Property Gazette of the NOIP shall encompass bibliographic data and
trademark representation and the list of goods/services covered by the
applications.Opposition
Any third party may oppose the granting of trademark registration
certificate with respect to published trademark applications. The
opposition must be made in writing and lodged with the National Office
of Intellectual Property (NOIP) during the period of substantive
examination of the trademark applications. The opposition shall
include the grounds therefore together with documents or references
evidencing those grounds. No fee shall be paid by the opposing
parties. The NOIP shall be obliged to consider the opposition together
with the examination of the trademark applications. The NOIP’s
notification for granting or refusal of trademark registration
certificate with respect to the opposed applications must also be sent
to the opposing parties.
Substantive examination
Upon expire of the formality check and where the
application is accepted as legitimate, the application will be passed
to substantive examination which takes place within a 9 month period
from the date of acceptance of the application (i.e. the signing date
of the Notification of Acceptance). The substantive examination is to
consider whether the claimed trademark (i) possesses distinctiveness
and (ii) is of those signs excluded from trademark protection.
During this period, the applicant may make
amendments to the application. As to the list of goods/services, the
applicant may restrict it, but not expand. As to the trademark sample,
it is possible to make a minor change.
Trademark applications filed internationally under the Madrid
Agreement shall be also subject to the substantive examination which
lasts 1 year from the date of extension of protection to Vietnam.
Notification of reason
for refusal
Where the trademark is unregistrable, the NOIP will issue a
notification of Examination Result of Application notifying the
applicant of the intended refusal of grant of the certificate and
reasons therefore or of the deficiencies or amendments which should be
corrected or made. The applicant has 2 months to reply or make
necessary amendments. If the applicant fails to reply or the response
is not appropriate, the NOIP will officially issue a Notification of
Refusal of Granting Certificate of Trademark Registration. To the
contrary where the response is satisfactory, the Certificate of
Trademark Registration or Decision of Acceptance of Protection will be
granted as above mentioned.
Invitation to pay fee for registration, granting and Publication of
TMCR
If the substance examination finds the trademark
registable, then the NOIP will send a Notification to invite the
applicant to pay fee for registration, granting and publication a
TMCR. Payment shall be made within 02 months from the signing
of the Notification. Failure to pay the fee within the time limit may
result in abandonment of the trademark application.
Regarding the international trademarks filed under the Madrid
Agreement, the NOIP will issue Decision of Acceptance of Protection
for the trademark in question. The international registration of a
trademark, accepted for protection in Vietnam by the NOIP, shall be
effective from the date it is published in the IP Gazette, Volume B
until the end of the 10 year or 20 year term of the international
registration depending on the paid registration fee.
Registration and
Publication of TMCR
All registration trademarks shall be published in the IP Gazette,
Volume B (for registration trademarks) and recorded into the National
register of Industrial Property for Trademarks.
Appeal to NOIP’s Board
of Appeal
The time limit for appeal to the NOIP Board of
Appeal is 90 days from the issuance date of the Decision of Refusal
and the appeal shall be considered by the NOIP’s Board of Appeal
within 30-45 days as provided by the law.
In case the applicant does not agree with the NOIP’s Board of Appeal’s
Decision it may file further appeal to the Ministry of Science and
technology (MOST) or bring the case before the Administrative Court.
Appeal to MOST
The MOST shall consider the appeal within 45-60
days, however, MOST may invite the relevant parties to have their
opinions, thus in practice, it often takes much longer for the MOST to
issue its decision. The time limit for filing appeal at this stage is
30 days.
Appeal to Administrative Court
There is two-instance of hearing by the
Provincial Administrative Court
First instance:
1.
The time limit for starting the case before the Court is 30
days from the date of issuance of the NOIP’s Board of Appeal Decision.
2.
Within 7 days the Court shall notify relevant parties of the
content of the complaint and give the parties 15 days for submitting
their opinion.
3.
Within 60 days, the responsible judge shall issue one of the
following decision on:
-
Trial the case.
-
Temporary suspension of the case.
-
Suspension of the case.
4.
Within 20 days from the date of the decision on trial of the
case the Court shall hear the case.
Second instance:
To review a judgment of the first instance
1.
Judgment of the first instance can be appealed by any relevant
parties.
2.
The time limit for appeal is 10 days from the date of the
judgment of the first instance.
After 60 days from receiving all the documents from the Court of the
first instance, the Appeal Court shall rehear the case. |
