However, the provisions of law which applied in practice are still inadequate and overlap in defining the jurisdiction of trademark dispute settlement, dispute resolution process, the co
GENERAL THEORY OF TRADEMARK DISPUTE
Overview of trademark
Trademarks are foundational components of intellectual property, historically used to denote ownership through shapes, signs, or signatures The protection of trademarks began with early laws in Britain, and the concept soon spread to many European countries In an era of rapid scientific and technological advancement, expanding international relations, and rising risks of IP infringement, there is a need for a common regulatory framework to safeguard these rights As a result, a diplomatic conference held in Paris approved the Convention for the Protection of Intellectual Property, which covers trademarks among other IP rights.
According to the TRIPS Agreement, a trademark is defined as any sign, or any combination of signs, capable of distinguishing the goods or services of one enterprise from those of others This definition makes clear that such signs can constitute a trademark once they function as a source identifier for a business's offerings In practice, it covers words, logos, devices, or other marks that signal the origin of goods or services and thereby support brand protection under intellectual property law.
The 2012 5th syllabus of Intellectual Property Law from Ho Chi Minh City University of Law (p 249) notes that Roman ceramic makers used a large array of distinctive marks—over a hundred—to differentiate their wares from competing pieces Among these, the Fortis trademark was particularly famous and was highly counterfeited, illustrating early concerns about trademark protection and brand differentiation in ancient crafts.
The Bakers’ Marking Law is the earliest form of trademark regulation, enacted by the British Parliament in 1266, obliging every baker to place his mark on the bread he baked This foundational statute introduced product identification and accountability, establishing an early precedent for trademarks and consumer trust that shaped the history of brand protection for centuries.
Under the Paris Convention for the Protection of Industrial Property, approved on March 20, 1883, Article 6.1 does not set a universal trademark definition; instead, each member state determines its own criteria The convention lists grounds for refusing a trademark application, including signs that cannot distinguish, are immoral or contrary to public order, or are likely to deceive the public Beyond these prohibitions, any sign capable of distinguishing can serve as a trademark.
WIPO also has the definition of trademark, ―trademarks are distinctive signs, used to differentiate between identical or similar goods and services offered by different producers or service providers.” 9
Trademark in the EU law is firstly regulated in the Article 2, First Council Directive 89/104/EEC 10 and Article 4, Council Regulation (EC) No 40/94 11 , as follows:
A trademark may consist of any sign capable of being represented graphically, including words such as personal names, designs, letters, or numerals, or the shape of goods or their packaging, provided that the sign is capable of distinguishing the goods or services of one enterprise from those of others.
Although nations and international bodies differ in how they define trademarks, they converge on a core idea: a trademark's distinctive capability to identify the source of goods or services Accordingly, the first criterion for protectability in these systems is to assess whether the mark is distinctive for the products or services it brands, since only distinctive marks can reliably function as indicators of origin and thus qualify for protection.
Trademark regulation in Vietnam began with Decree 197/HDBT, which defined trademarks as signs that can be expressed as words, pictures, drawings, embossing, or a combination of these elements, and may be presented in one or more colors Although the concept was initially regulated in sub-laws, it was officially codified by the Civil Code of 1995, which became the highest legal basis for trademark protection.
9 http://www.wipo.int/trademarks/en/ (last visited on 13/06/ 2013)
11 Repealed by Council Regulation (EC) No 207/2009
12 Kenneth L.Port, ―Trademark law and policy‖, Carolina academic press, pages 141
According to Dao Minh Duc, Law No 13/57, enacted on August 1, 1957 in southern Vietnam, defines a "production mark" as referring to the product or agricultural sector and a "brand" as referring to trade goods, clarifying early Vietnamese trademark terminology; for more details, see http://luatsohuutritue.net/mot-so-van-de-ve-dinh-gia-nhan-hieu/ (last visited 13/06/2013).
14 Decree 197/HDBT dated 14 th December 1982 and be guided by Circular 1134/SC dated 17 th October 1991
Article 3.1 of Decree 197/HĐBT establishes the principles for protecting intellectual property rights (IPR), including trademarks Together with Circular 1134/SC and the Civil Code 1995, Decree 197/HĐBT has played an important role in building a legal framework for IPR protection However, there are restrictions on the current protection scopes, indicating that a new regulation is needed Such regulation would be reasonable given the present situation to clarify and expand the scope of IPR protection.
On 29 th November 2005, IP Law was enacted, marked the complement and outstanding development of the protection of IPR New definition of trademarks was expressed as follows: ―A trademark is the sign used to distinguish goods or services of the organizations, different individuals‖ 17 This definition was detailed in the Article 72, is signs can be seen as words, letters, images, drawings, including holograms or combination thereof that are expressed by one or more colors and distinguish with goods or services of other subjects Therefore, signs could be used as a trademark must be visible and distinctive
In many countries, including France and the USA, trademarks can be invisible, extending beyond visible marks to sounds, tastes, and odors According to Article 15.1 TRIPS, a sign is recognized as a trademark if it can distinguish the goods or services of different entities Thus, the distinguishing function remains the core criterion for registration, whether the sign is visible or invisible Signs such as colors, tastes, odors, or sounds can also serve to differentiate producers’ goods and services, underscoring their potential as trademarks As a result, the author suggests that Vietnam should extend its trademark framework to cover invisible signs—sounds, tastes, and smells—so they can be registered and used as trademarks.
16 Nguyen Thi Thuong, 2012, bachelor‘s thesis ―trademark dispute settlement under Vietnamese law – situation and resolution‖, pages.10
Examples in the United States show that trademarks can cover non-traditional sensory marks The MGM film studios’ lion roar and the Nokia tune have both been registered as trademarks In 1990, a California court held that a company could register a plumeria scent as a trademark for its sewing thread and embroidery yarn (US Reg No 1,639,128, later abandoned) Other similar examples demonstrate the broad scope of trademark protection beyond visual logos.
In L’Oréal v Bellure, England’s Court of Appeal held that Bellure’s advertising practice—listing and comparing its perfumes’ scents with those of well-known L’Oréal fragrances—amounted to trademark infringement The ruling demonstrates that scent-based comparisons in advertising can infringe a brand’s registered marks by risking consumer confusion or mistaken association For researchers interested in U.S trademarks with audible identifiers, representative soundmarks can be found on the USPTO’s sound marks page (last visited on 20/06/2013): http://www.uspto.gov/trademarks/soundmarks/index.jsp.
19 http://thongtinphapluatdansu.edu.vn/2010/05/12/5062/ (last visited on 15/06/2013)
20 Odor of perfumes, wines or tastes of some agriculture products or foods can be signs to distinguish products of different producers
Trademarks and the legal protection they enjoy are central to commerce They help maintain market order by defining essential business rules and, at the same time, assist consumers in making informed buying decisions.
Trademark dispute settlement
1.2.1 The concept of “trademark dispute”
Dispute typically denotes a conflict or controversy, a clash of claims or rights, or an assertion of a right accompanied by contrary claims or allegations from others It can also describe an argument or disagreement between two or more parties—such as individuals, groups, or countries—over a subject on which views differ In short, a dispute is a situation where parties contest benefits or rights, leading to discussion, negotiation, or action aimed at resolution.
Neither “intellectual property dispute” nor “trademark dispute” is defined by the IP Law Instead, disputes related to intellectual property are treated as civil matters and fall under the court’s jurisdiction, as set out in Articles 25.4 and 29.2 of the applicable statute.
CP Code Under the Dictionary of law, ―civil dispute‖ means:
In civil law, disputes over the rights, benefits, and obligations of legal entities arise in a variety of contexts, including the signing, performance, and payment of purchasing agreements, investment, technology transfer, transportation, and insurance; they also involve the enforcement of personal rights and are closely tied to property relations such as copyrights, inventions, and patents, with potential relevance in family matters like divorce and inheritance.
Based on the definition of civil dispute, the term ―intellectual dispute‖ was defined as follows:
37 Black‘s Law Dictionary, Second pocket edition, 2001, pages 211
39 Black‘s Law Dictionary, Second pocket edition, 2001, pages 532
Intellectual property disputes arise directly from the subject matter of IP or from commercial transactions and relationships related to the exploitation of IP assets, including the establishment, merger, or consolidation of joint ventures, technology transfer agreements, and IP-related contracts such as engineering–procurement–construction (EPC) contracts, as well as contracts tied to IP like research agreements and employment contracts.
A trademark dispute is a conflict that arises in two main ways: first, directly over the trademarks themselves—i.e., disputes concerning a proprietor’s rights—and second, from commercial transactions and relationships involving the exploitation of a trademark, such as licensing or franchising These disputes can occur at any stage of a trademark’s lifecycle, from registration through to ongoing use, exploitation, and disposal.
Because an intellectual property dispute in general or trademark dispute in specific is a kind of civil dispute so it carries some typical features like follows:
Trademark disputes are civil matters with a private nature, arising between private parties who manage issues within property relations through self-determination and often prefer negotiation and mediation to resolve them The court's jurisdiction to adjudicate these disputes arises only when a party requests judicial intervention.
Most trademark disputes are complex and arise from several factors A key factor is the novelty of the object at issue, which often provides the public with limited information and creates uncertainty about who owns which rights As a result, disputing parties may lack a clear understanding of their own rights and may not recognize when the other party’s use constitutes infringement In addition, these disputes require careful identification of the relevant products or services, the applicable law, and the factual basis for any claimed infringement, all of which adds to the difficulty The involvement of rapidly evolving markets and new branding makes evidence gathering challenging and can complicate legal interpretation Consequently, resolving trademark disputes effectively hinges on clear rights analysis, defined use scope, and reliable information from the outset.
40 U Thi Bach Yen (2006), ―Law on protection of intellectual property right – Practical application in Ho Chi Minh courts‖, master‘s thesis, p.11 the jurisdiction of resolving dispute must have a professional expertise in defining the object and nature of that dispute
Trademark disputes are inherently multinational, because trademarks are registered and protected under international treaties and national laws As a result, such disputes fall under international legislation or the relevant national statutes that govern trademark protection The multinational character is further driven by the diverse nationalities of trademark proprietors and the various jurisdictions where disputes arise.
Trademark disputes are highly confidential matters within the broader field of intellectual property A trademark is a valuable enterprise asset that not only distinguishes products and services but also signals quality, prestige, and the owner’s branding strategy Because of this, these disputes demand strong confidentiality safeguards and the most effective dispute resolution mechanisms to protect the rights, assets, and strategic direction of the brand.
The distinctive features of trademark disputes guide the selection of effective resolution methods, with the most suitable approach tailored to the specifics of each case Each party decides which factors to prioritize and selects remedies that best meet the dispute’s requirements.
1.2.3 Subject and object of a trademark dispute
Based on the concept and the features of a trademark dispute, it can recognize the subject and the object of a trademark dispute as:
Based on U Thi Bach Yen's 2006 master's thesis on the Law protecting intellectual property rights, the practical application of IP protection in Ho Chi Minh City courts reveals how statutory provisions translate into court procedures, enforcement actions, and remedies for IP owners, including the challenges and gaps observed in local practice Similarly, Nguyen Hoan Thanh's article on settling intellectual property disputes via arbitration or mediation presents ADR as a viable alternative to litigation, offering advantages such as procedural flexibility, faster resolution, confidentiality, and expert dispute handling Together, these sources suggest that Vietnamese IP holders should evaluate both court-based enforcement and ADR routes when pursuing protection, recognizing that the chosen forum influences cost, timeline, and effectiveness of remedies For practitioners, the key implication is to develop a strategic approach that leverages the strengths of Ho Chi Minh City court procedures while considering arbitration or mediation to optimize dispute resolution outcomes and preserve commercial interests.
42 Nguyen Hoan Thanh, The article ―Intellectual property disputes settlement via way of arbitration or mediation‖, pages.1
A trademark dispute is treated as a civil dispute and, in principle, concerns private-to-private parties with no state involvement; when the state participates, the dispute may become administrative or criminal Under the Civil Code, the subjects of civil law relations include individuals, legal entities, and other recognized entities In Vietnam, Decree 103/2006/ND-CP provides that the subject of a trademark dispute may also include international organizations and individuals who meet the conditions for IP protection in Vietnam under the international treaties to which Vietnam is a member.
Trademarks are property rights governed by Article 181 of the Civil Code, so a trademark dispute is fundamentally an ownership dispute over the mark Such disputes can arise during any phase of a trademark’s lifecycle, including its possession, use, and disposition.
Vietnam participates in numerous bilateral and multilateral intellectual property (IP) treaties, but most of these agreements do not establish a distinct framework for categorizing trademark disputes Instead, they focus on core aspects such as trademark registration requirements, protection, and enforcement, in line with international standards found in the TRIPS Agreement and bilateral trade agreements (BTAs) As a result, the classification and resolution of trademark disputes in Vietnam are governed by domestic legislation.
In the U.S, trademark dispute can be classified into disputes in trademark Trial and Appeal Board (TTAB) proceedings (such as opposition to a pending application;
SUB-CONCLUSION
Trademarks have a long history that mirrors the development of the international commercial economy While there are many definitions, all share the core function of a trademark’s distintiveness, with additional roles as a badge of origin, a guarantee of quality, and an advertising tool that often drives disputes In most countries, protection attaches when a mark is registered with the competent authority, establishing the owner’s exclusive rights to use and dispose of the mark As a form of property, the trademark owner can possess, use, and dispose of the mark Disputes can arise during the owner’s use and include conflicts in the registration process, during exploitation or use, and in the disposition of trademarks, which are typically categorized as registration, exploitation/use, and disposition disputes.
To resolve disputes efficiently, each country has established consistent mechanisms designed to address the needs of the disputing parties promptly and satisfactorily Unlike the handling of trademark infringements, which falls under civil law, a trademark dispute is civil in nature and is typically settled through civil procedures such as negotiation, mediation, litigation in civil courts, or arbitration The choice among these avenues depends on the specifics of the case, but the overarching objective is to achieve a swift, fair resolution that clarifies rights and obligations and minimizes disruption to business operations.
There are numerous advantages to each measure in trademark dispute resolution, providing disputing parties with a range of effective options They can select the most appropriate tool to safeguard their rights or combine multiple measures as part of the settlement process to efficiently resolve the dispute.
Chapter II analyzes Vietnamese regulations and their practical application to determine whether these measures consistently qualify as a trademark dispute settlement Building on this analysis, the chapter also proposes solutions to strengthen the law governing trademark dispute settlement, drawing on the experience of European Union law.
VIETNAMESE LAW ON TRADEMARK DISPUTE
Mechanism of trademark dispute settlement in Vietnam
2.1.1 General provisions of trademark dispute settlement in Vietnamese law
Under Civil Code 2005, intellectual property rights (IPR), including trademark rights, are found in Chapter XXXV, Part VI In contrast with Civil Code 1995, which offers only general provisions on trademarks, the 2005 code outlines basic civil principles and establishes trademark ownership in Article 84, effectively recognizing trademark rights as civil rights governed by the civil code Yet detailed rights—such as the use, enforcement, or transfer of a trademark—are regulated in depth by IP Law The author argues that provisions on trademark owners’ rights in the Civil Code should be trimmed because these rights are already detailed in the specialized IP Law, avoiding unnecessary duplication.
In regulations of dispute settlement, basic principles like principles of free and voluntary undertaking and agreement 85 , the principle of conciliation 86 of the Civil Code
2005 are also the basic principles in settling a trademark dispute
IP Law took effect on July 1, 2006, consolidating all provisions related to intellectual property into a single statute Within this framework, a trademark is one of the IP objects and thus falls within the scope of IP Law This approach differs from the provisions of the Civil Code 2005.
84 Article 751 and Article 753 Civil Code 2005
Article 12 of the 2005 Civil Code frames IP law as a blend of substantive and formality rules, defining the rights and obligations of trademark owners and the steps to establish and enforce trademark rights In trademark disputes, disputing parties and competent authorities base their decisions on the protection title granted under IP Law, subject to the conditions stated in the law Additionally, IP Law introduces innovative provisions beyond the CP Code, such as provisional urgent measures and compensation for damages.
Although IP law includes robust provisions, some rules lack detailed guidance and are difficult to apply in practice, which undermines the effectiveness of trademark dispute resolution.
Under Articles 25 and 29.2 of the CP Code, trademark disputes are adjudicated by the civil People’s Court (civil in the broad sense) The CP Code also governs court jurisdiction, the classification of evidence, and the burden of proof, and it lays out the core principles and the full civil‑case process before the People’s Courts: from filing lawsuits and preparation to the first‑instance trial, appellate trial preparation, and the ultimate trial and judgment, followed by enforcement; in some cases, cassation and retrial procedures are governed by decisions of the Council of Judges of the Supreme People’s Court.
It can be seen that, CP Code is considered as the first and main legal basis to resolve a trademark dispute in the Civil People‘s court
Because a trademark dispute is a civil dispute (civil in broad sense), so it can be settled by the commercial arbitration under the Article 2 CA Law Replaced the Ordinance on
87 U Thi Bach Yen (2006), ―Law on protection of IPR – Practical application in Ho Chi Minh courts‖, master‘s thesis, p.16
88 Civil Proceedings Law of Vietnam Syllabus (2012), HCM university of law, published by Hong Duc, p.22
Commercial Arbitration No 08/2003/PL-UBTVQH 11, CA Law contain sufficient legal basis to settle commercial disputes
2.1.2 Dispute settlement via way of negotiation, mediation
Without a third party, negotiation serves as the mechanism by which disputing parties discuss and negotiate to reach an agreement, reflecting their voluntary commitment to fulfill obligations Vietnamese law emphasizes basic principles to guide civil relations rather than prescribing detailed, case-specific regulations.
Under the CP Code, the right to decision-making and self-determination is a foundational principle in civil dispute resolution During the process of settling civil cases or matters, the involved parties may terminate or modify their requests or voluntarily reach a settlement with one another, provided that such actions are not contrary to law or social ethics.
Legislation recognizes negotiation as a legitimate means to settle disputes, but it prohibits any talks that violate the law or social ethics This is especially true in trademark disputes, where consumers can be among the affected third parties Therefore, if a party uses a trademark without the proprietor’s consent and sells counterfeit goods, the proprietor cannot negotiate with the violator to obtain damages, since such a settlement would be unlawful and could harm consumer interests.
Besides, negotiation would not only be used as an independent measure but it also could combine with other measures or be used in many processes of settling disputes
In the arbitration proceedings, the parties are free to negotiate, agree on dispute
89 Ngo The Lap (2009), ―Resolving commercial dispute by negotiation‖, Bachelor’s thesis, Hanoi University of Law, p.24
Under Article 5.2 of the Civil Procedure Code 2005, a principle also referenced in Article 4 of the Civil Code 2005 governs court proceedings; in court litigation, disputing parties retain the right to amend their requests and to negotiate toward a settlement that reaches an agreement.
Although provisions guiding the settlement of trademark disputes appear in many laws, they remain vague in specialized intellectual property statutes The IP Law does provide the proprietor with a right to self-protection, enabling them to demand that infringers cease the acts, issue public apologies or corrections, and pay damages This can be viewed as a form of negotiation, but the law currently treats it solely as a self-protection remedy rather than an independent negotiation mechanism The author argues that, given the important role and distinct characteristics of negotiation, it should be clearly recognized in IP Law as an independent provision, rather than subsumed under the right to self-protection.
―measure to self-protection‖ instead of ―right to self-protection‖ Therefore, the recognition of the negotiation mechanism will be clear in this article
Mediation, like negotiation, is a non-adversarial form of dispute resolution in which a neutral mediator helps the parties reach a settlement It is a widely used alternative dispute resolution (ADR) method that offers a faster, more cost-effective path to resolution than going to court Mediation avoids court proceedings and is adopted across many legal systems around the world as an efficient way to resolve disputes without litigation.
Based in Geneva, Switzerland, the WIPO Center 97 was established in 1994 to promote the resolution of intellectual property disputes through alternative dispute resolution
93 Ngo The Lap (2009), ―Resolving commercial dispute by negotiation‖, Bachelor’s thesis, Hanoi University of Law, p.44-46
96 Eun-Joo MIN, ‗‗Arbitration, Mediation and Expert Determination - Time- & Cost - Efficient Dispute Resolution Tools‘‘, Arbitration and Mediation Center, WIPO
97 This is one unit of the International Bureau of The World Intellectual Property Organization (WIPO) See more at: http://www.wipo.int/amc/en/index.html (Last visited on 26/06/2013)
The WIPO Arbitration and Mediation Center provides a range of alternative dispute resolution options, including mediation, arbitration, expedited arbitration, and expert determination Mediation at the WIPO Center can be used as an independent process or as a step within an arbitration, and the Center has handled disputes across fields such as trademark coexistence agreements, domain-name disputes, and settlements of prior multi-jurisdictional IP litigation Trademark cases submitted to the WIPO Center involve both contractual and non-contractual disputes Since its establishment, the WIPO Center has demonstrated that ADR offers a more efficient and affordable means of resolving intellectual property disputes than court litigation, a trend that is particularly evident as cross-border and cross-cultural disputes continue to grow.
To date, the WIPO Center has administered over 350 mediations, arbitrations, and expert-determination cases In WIPO mediation, 71% of cases settle, 23% do not settle, and 6% remain pending From 2005 to 2009, the WIPO Center administered over 80 mediations and 110 arbitrations, with 41% of the administered procedures being mediation cases.
In the UK, mediation is a form of alternative dispute resolution (ADR) administered by the Intellectual Property Office (IPO) The IPO facilitates mediation to help resolve disputes involving both unregistered rights—such as copyright and design rights—and registered IP assets, including patents, trademarks, and registered designs In trademark matters, IPO mediation typically addresses opposition and invalidation proceedings on relative grounds and may not be a substitute for litigation in trademark disputes.
98 http://www.wipo.int/amc/en/center/advantages.html (Last visited on 26/06/2013)
99 http://www.wipo.int/amc/en/center/wipo-adr.html (Last visited on 26/06/2013)
100 http://www.wipo.int/wipo_magazine/en/2009/03/article_0008.html ( Last visited on 26/06/2013)
101 WIPO Publication No 779E, ―Dispute Resolution for the 21st Century‖, Arbitration and Mediation Center, WIPO, p.1
102 http://www.wipo.int/wipo_magazine/en/2009/03/article_0008.html ( Last visited on 25/06/2013)
103 http://www.wipo.int/amc/en/center/caseload.html ( Last visited on 25/06/2013)
104 http://www.wipo.int/wipo_magazine/en/2009/03/article_0008.html ( Last visited on 25/06/2013)
105 Concept House Cardiff Road Newport NP10 8QQ, ―Mediation of Intellectual Property Disputes and IPO Mediation Service‖, published on March 2013, p.3
106 http://www.ipo.gov.uk/types/tm/t-other/t-object/t-afterpub/t-oppose.htm ( Last visited on 28/06/2013) concerning the distinctiveness of the mark; trademark opposition and invalidation proceedings on absolute grounds 107
Mediation is a well-accepted form of dispute resolution in the United States Although trademark lawsuits have risen year after year, the vast majority are resolved through alternative dispute resolution (ADR) In the U.S., mediation generally falls into two categories: independent mediation—where parties hire their own mediator—and court-annexed mediation programs that involve litigants Mediation offers notable advantages, including saving judge and magistrate time and reducing court costs, as government resources fund the judiciary and many lawyers voluntarily contribute part or all of a day to assist the parties at little or no cost.
Mechanism of trademark dispute settlement in the European Union
2.2.1 General provisions of European Union Law on trademark dispute settlement
The EU is a unique economic and political partnership of 28 European countries that together cover much of the continent For a long time, each member state maintained its own legal system for protecting trademarks under the Paris Convention, with systems built to reflect each nation’s economy, society, and political context However, maintaining separate trademark regimes can incur unnecessary costs and hinder the free movement of goods and services across the EU’s Single Market As a result, harmonizing and unifying trademark laws across EU member states became a central objective The EU has established a Community trademark framework to provide a coherent, cross-border system for trademark protection.
172 http://europa.eu/about-eu/index_en.htm Croatia is the newest member of EU ( Last visited on 26/06/2013)
173 Trademark Law of Britain in 1994; Trademark Law of France in 1964; Trademark Law of Sweden in 1960; Trademark Law of Denmark in 1987
174 Phan Ngoc Tam (2011), "Protection on well-known trademarks - a comparative study between European Union law and Vietnamese law", p.110
The target is regulated by the preface to the First Council Directive 89/104/EEC of 21 December 1988 and by Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trademark.
Council Directive 89/104/EEC (also called The First Harmonization trademark Directives) 176 and Council Regulation (EC) No 40/94
These provisions aim to facilitate the free circulation of goods and services, ensure that registered trademarks enjoy the same protection under the laws of all Member States, and promote harmonious economic development throughout the Community A Community trademark (CTM) will be established, with equal effect throughout the Community However, the CTM regime is not an exhaustive harmonization instrument; it does not deprive Member States of the right to continue protecting trademarks acquired or used and does not replace national trademark laws.
Under the Article 4 of the Council Regulation (EC) No 207/2009 of 26 th February
2009 181 , a CTM is ―any sign capable of being represented graphically, particular words, including personal names, designs, letters, numerals, the shape of goods or of their packaging‖ might ―distinguish the goods and services of one undertaking from those of other undertakings‖ So, any nature or legal person may be the proprietor of
CTM 182 , which is obtained by registration in OHIM 183
176 This Directive is repealed by the Directive 2008/95/EC of the European Parliament and of the Council of 22 nd October 2008
177 The First Council Directive 89/104/EEC
179 Article 1(2) Council Regulation (EC) No 40/94
180 Guy Tritton (2002), ―Intellectual Property in Europe‖, Lon Don Sweet and Maxwell, p.214
181 This Regulation repealed the Council Regulation (EC) No 40/94
182 Article 5 Council Regulation (EC) No 207/2009 Any natural or legal person in here are in a national of a Member State, a national of a Paris Convention country; is domiciled or has his seat or real and effective industrial or commercial establishment with the above countries (Guy Tritton, Intellectual Property in Europe, p.267) Vietnam is also a member of the Paris Convention, so Vietnamese individuals and legal persons enable to file a CTM application in EU
According to Articles 2 and 6 of Council Regulation (EC) No 207/2009, and specifically Article 25, applications for a Community Trade Mark (CTM) can be filed with the Office for Harmonization in the Internal Market (OHIM) or with the central industrial property office of a Member State.
The Community Trade Mark (CTM) system has proven a great success In its first year, filings were three times the forecast and attracted a substantial number of applications from the United States, Spain, the United Kingdom and Germany By the end of 2000, around 93,000 CTM applications had been registered out of roughly 200,000 filed Although the new regulations brought notable benefits, the CTM framework also faces challenges from oppositions and disputes; between 1997 and 2000 more than 33,000 oppositions were filed, reflecting the reality that securing a mark that does not conflict with existing registered or unregistered marks across the EU is more complex than doing so in a single country.
Under the provisions of Council Regulation (EC) No 207/2009, the jurisdiction of CTM disputes settlement includes: OHIM, CTMCs, EU Court of Justice
2.2.2 Office for Harmonization in the Internal Market (OHIM)
OHIM is the official trademarks and designs office of the European Union, which conducts examination, registration, opposition and cancellation procedures for CTM 185
The OHIM has its own BoA to hear appeals, inter alia, from the examiners and Opposition or Cancellation Divisions 186
A CTM application may be rejected if an opposition is filed by a third party Opposition proceedings can be brought by the proprietor of earlier trademarks or by licensees authorized by the proprietors The opposition must be in writing and specify the grounds under Article 8 It will be received and examined by the Opposition Division after the opposition fee has been paid If necessary, the Division may invite the parties to reach a friendly settlement, and in such cases the oral proceedings shall not be public.
184 Guy Tritton (2002), Intellectual Property in Europe, Lon Don Sweet and Maxwell, p.191
185 http://oami.europa.eu/ows/rw/pages/OHIM/institutional/institutional.en.do (Last visited on 11/06/2013)
186 Article 58(1) Council Regulation (EC) No 207/2009
187 Guy Tritton (2002), ―Intellectual Property in Europe‖, Lon Don Sweet and Maxwell, p.275
188 Article 41 Council Regulation (EC) No 207/2009
189 Article 77 Council Regulation (EC) No 207/2009
If a third party disagrees with decisions of the Opposition or Cancellation Divisions, they may appeal to the Board of Appeal (BoA) under Article 190 The BoA’s decision has suspensive effect and is heard by a three‑member panel, at least two of whom are legally qualified If the appeal is admissible, the BoA will invite the parties to file observations within a deadline fixed by the BoA, based on communications from other parties or issued by the BoA itself (Article 191) If the disputing parties remain dissatisfied with the BoA decision, they may appeal to the Court of First Instance and, ultimately, to the ECJ (Article 192).
Under Council Regulation (EC) No 207/2009, OHIM has jurisdiction to settle Community Trade Mark (CTM) disputes OHIM handles numerous opposition cases, including notable decisions such as Centrotherm Systemtechnik v OHIM and Centrotherm Clean Solutions (C‑610/11 P), along with Rintisch v OHIM (C‑122/12 P) and Case C‑621/11 P, illustrating the authority's role in CTM disputes.
For instance, in the Case C-621/11P of New Yorker SHK Jeans GmbH & Co KG
During an opposition proceeding, the Opposition Division may receive the opposition and, after examining evidence from the disputing parties, may invite them to a meeting It may then issue a decision or request additional evidence The division’s decision can be appealed to the Board of Appeal (BoA) The BoA decision can be appealed to the CTMC and, ultimately, to the ECJ.
190 Article 58 Council Regulation (EC) No 207/2009
191 Article 63 Council Regulation (EC) No 207/2009
192 David L.Bainbridge, ―Intellectual Property‖, sixth edition, p.708
193 http://curia.europa.eu/juris/liste.jsf?language=en&num=C-621/11 (Last visited on 11/06/2013)
194 New Yorker Jeans applied on 31/10/2003 for registration of the CTM “FISHBONE” in Class 18 and Class 25 under the Nice Agreement; on 28/01/2005 Vallis K – Vallis A & Co OE (Vallis) filed an opposition, arguing that its own trademarks “Fishbone” and “Beachwear” (registered on 17/05/1996 for T-shirts and beachwear in Class 25) were likely to be confused with the new mark By 06/06/2006 Vallis submitted evidence including a sworn statement dated 01/06/2006, invoices and photographs; New Yorker Jeans objected on 25/12/2006 that the evidence did not prove genuine use of the earlier mark, and Vallis responded with further observations and evidence on 15/01/2007, notably catalogues from 2000, 2001 and 2003 (the second batch of evidence) On 26/05/2008 OHIM’s Opposition Division upheld the opposition to the extent it covered “bags, rucksacks” in Class 18 and all goods in Class 25, finding a likelihood of confusion in part based on the 2001 catalogue filed with the letter of 15/01/2007 (which post-dated 06/01/2006) Following New Yorker Jeans’ appeal, on 30/07/2009 the Board of Appeal of OHIM upheld the Opposition Division’s decision, in particular accepting that the second batch of evidence submitted on 15/01/2007 could be taken into account.
Under the Article 95, each member state shall designate a limited a number as possible of national courts and tribunals of first and second instance, hereinafter called as
These courts have exclusive jurisdiction to hear infringement actions—including claims for reasonable compensation for infringing acts related to the publication of a normal trademark and a Community Trade Mark (CTM) under Article 195—together with actions for a declaration of non-infringement and counterclaims for revocation of a declaration of invalidity under Article 196, unless OHIM has already determined the application relating to the same subject matter and cause of action between the same parties under Article 197.
CTMC proceedings must be filed in the courts of the Member State where the defendant is domiciled or established; if the defendant is neither domiciled nor established in any Member State, the action is filed in the court of the plaintiff (the plaintiff’s domicile or establishment); if neither party is domiciled or established in any Member State, the proceedings are brought in the Court of the Member State where OHIM has its seat.
Under Article 105, a second-instance appeal to the CTMC is available for judgments issued by the CTMC in the first instance that involve the actions and claims referred to in Article 96.
Recommendations proposed for improving the law of trademark dispute
settlement - based on studying experiences of EU law
Recent years have seen the Vietnamese government strive to establish a robust intellectual property system that complies with international standards, including the TRIPS Agreement, to support the country’s economic development within the framework of international economic integration The enactment of the IP Law and its guiding documents demonstrates this commitment and provides a strong legal foundation for IP protection, innovation, and foreign investment.
These legal documents, issued at different times, contain inconsistent and overlapping provisions that undermine coherence in trademark governance Learning from EU trademark law—often regarded as a robust resource for trademark policy and efficient dispute resolution—provides valuable insights for strengthening domestic law By examining how the EU framework resolves conflicts, enforces rights, and streamlines procedures, policymakers can adopt best practices to reduce gaps, harmonize standards, and enhance legal certainty for trademark holders in their jurisdiction.
2.3.1 Complete the law of content of the intellectual property law and civil procedure law on settling trademark dispute
205 Article 20 Protocol (No 3) on the Statute of the Court of Justice of the EU
Like mentioned analyses, IP Law should supplement in its contents with the following provisions:
The concept of trademark dispute
Integrating the concepts of intellectual property disputes and trademark disputes into IP law clarifies the scope of protection and distinguishes between trademark disputes and trademark infringement This targeted clarification helps courts, policymakers, and rights holders understand where rights begin and end, guiding enforcement, remedies, and the resolution of conflicts in a predictable way By defining these terms and their relationships, the article provides a concise framework for assessing trademark-related disputes in today’s marketplace and ensuring that legitimate use is differentiated from infringement.
A trademark dispute is a conflict arising from intellectual property concerns related to trademarks, either over the rights of the trademark proprietor or from commercial transactions and relationships connected with the exploitation of a trademark These disputes can arise at any stage of the trademark’s lifecycle, from registration to exploitation, use, and disposal of trademarks.
The categorization of trademark dispute
The categorization of intellectual disputes presented in Joint Circular 02 should be incorporated into IP Law to create a consistent and clearer framework In line with the cited analyses, the categorization should reframe disputes over trademark infringement as disputes arising from trademark infringement, including cases involving compensation for damages This integration would enhance legal clarity, align enforcement with established analyses, and improve remedies for rights holders under intellectual property law.
The trademark dispute settlement measure
IP Law should align the regulation of procedures for settling trademark disputes with global best practices Following models from WIPO, EU law, and numerous jurisdictions such as the UK, France, and Germany, trademark disputes can be settled through negotiation, mediation, or in-court litigation or arbitration Adopting these measures makes IP law more consistent with specialized regimes like Commercial Law, enhancing clarity, efficiency, and predictability for brand owners and other stakeholders across jurisdictions.
2005 (Article 317) Moreover, if this regulation is added into IP Law, it might solve the
These measures constitute a form of alternative dispute resolution (ADR) Section 2.1.2.2 of this thesis discusses this point There is an inconsistency between the measures used to resolve intellectual property disputes and those applied to acts of unfair competition For example, Circular 10/2008/TT-BTTTT provides that disputes involving domain names and trademarks may be settled by one of the above ADR mechanisms Consequently, when a dispute concerns unfair competition, the disputing parties can more easily choose a reasonable ADR mechanism and the applicable law.
Under Joint Circular 02, many parties have standing to sue in trademark disputes before court litigation 207, but the author argues that these provisions should be clarified, especially regarding the licensee's standing in different circumstances When a dispute arises between contracting parties under a license agreement, the licensee should have the right to sue because the dispute directly affects his benefits If the dispute involves a third party who claims ownership against the licensor, that third party should not be considered a competent plaintiff Aligning these rules with established practices in developed countries, such as the United States, would improve clarity and enforceability of trademark rights in court.
Mediation is considered an efficient form of alternative dispute resolution (ADR) in WIPO and the EU It can reduce the damage and the time needed to settle a trademark dispute, so mediation should be encouraged for every trademark dispute However, there are provisions that limit its use, such as the unclear regulation of situations that cannot be conciliated (Article 182.1), and the long time for resolution.
208 See section 2.1.3.1 this thesis notifying the decision (Article 187) Therefore, those provisions should be modified as follows:
Article 182.1 should establish provisions guiding situations properly summoned by courts; to accelerate mediation and prevent the dispersion of a violator's assets, the CP Code should amend Article 187 to require the court to notify the records of a successful conciliation within seven days (the period for parties to file opposition) and to send these records directly to the disputing parties and the procuracy at the same level, rather than extending the period to five working days.
Complete the provisional urgent measure
Provisional urgent measures are a key right for disputing parties, enabling a trademark owner to request the court to apply protective orders upon or after filing a lawsuit to prevent the infringer’s assets from being dispersed or destroyed Article 123.2 CP Code requires courts to issue or respond to applications for provisional measures, but it cannot prevent an infringer who is able to disperse or destroy assets This aligns with Resolution No 02/2005 (Section 5.2) and BTA (Articles 11.3 and 13.5B), where the subject of the measure has the right to review and explain to the court Nonetheless, the CP Code should treat intellectual property as a special case, allowing provisional urgent measures to be applied without notifying the person subject to the application in certain circumstances Since intellectual property, especially trademarks, are intangible assets, infringement is hard to detect but easy to disperse or destroy, and requiring a deposit to open the measure can be unfair In EU practice, some countries such as Germany or Britain apply provisional urgent measures without notifying the subject.
Under the CTMC framework, CTMCs can issue ex parte orders in Germany or Mareva injunctions in the United Kingdom In line with the UNIDROIT Principles (Principle 5), a court order that affects the benefits of one party may be issued and enforced without prior notification to the party subject to the application, provided that the court considers the evidence and necessity before issuing the order.
Therefore, in the author‘s opinion, it is better when the provisional urgent measure is applied directly and the court does not have to notify the order to the infringer
Vietnam’s IP Law and the CP Code feature innovative provisions that streamline IP and trademark dispute resolution, delivering faster and more effective outcomes Yet several shortcomings require amendments to align with international law, including how damages are determined and the involvement of IP authorities in court litigation To ensure uniform application across courts, a guiding provision should be added to Decree 105/2006/NĐ-CP to specify the level of compensation, as current regulations do not regulate it, fostering consistent practices in all judiciary bodies.
2.3.2 Complete the law of organization the competent authority on settling trademark dispute
2.3.2.1 Enhance the dispute settlement role of National Office of Intellectual Property of Vietnam (NOIP)
According to Article 200 of the IP Law, NOIP is not the competent authority to resolve trademark infringement disputes Article 11.2 of the IP Law designates NOIP as an agency under the Ministry of Science and Technology, tasked with exercising state management and providing services in the field of intellectual property Therefore, NOIP's primary role centers on governance and service provision in IP matters, while enforcement or resolution of trademark infringements falls outside its direct remit.
The National Office of Intellectual Property (NOIP) in Vietnam plays a central role in trademark examination and registration procedures, guiding the overall process of trademark registration However, significant trademark disputes still arise during this process, including conflicts over the right to file a trademark application and disputes over priority rights It would be advantageous to treat trademark dispute resolution as a function of NOIP, since NOIP is the competent authority with jurisdiction to examine and grant the protection title for trademarks By incorporating disputes and resolution into NOIP’s remit, the office gains the essential information needed to resolve issues related to establishing the rights of the trademark owner and ensure clearer, more efficient trademark protection.
SUB-CONCLUSION
Vietnamese law provides detailed regulations on the mechanism for settling trademark disputes Negotiation and mediation are efficient alternative dispute resolution methods widely used in many countries (the USA, UK) and international organizations such as the EU and WIPO However, court litigation remains the most effective means to resolve trademark disputes In addition, international arbitration centers and domestic arbitration centers, though their application to date has not been fully developed, offer alternative avenues to settle trademark disputes.
Despite existing measures, there are still shortcomings in Vietnam’s IP dispute provisions, and disputes are growing in number and complexity While NOIP and the civil courts serve as the main dispute-resolution mechanisms, the Vietnamese framework has not been aligned with international models used in the EU and WIPO, reducing its effectiveness Consequently, Vietnam could benefit from amending and supplementing its IP provisions and strengthening civil-court dispute resolution by establishing specialized IP courts within the judiciary, an initiative that warrants urgent consideration.
One key objective of this thesis is to identify practical pathways to strengthen Vietnam’s trademark dispute resolution mechanism To achieve this, the study combines a theoretical examination of the legal framework for trademark disputes with a comprehensive assessment of the current Vietnamese legal system, including its enforcement practices, to inform targeted reforms.
Based on my research, the Vietnamese legal system has achieved notable legislative and enforcement success in trademark dispute resolution, as evidenced by the rising number of cases settled in civil courts and by recent decisions granting trademark protection However, these provisions warrant careful consideration to ensure they remain aligned with the current dispute landscape and evolving market dynamics.
Based on findings from researching the trademark dispute settlement mechanism under civil procedure, this article offers recommendations to improve Vietnam’s legal system for resolving trademark disputes The proposals address legislative reform, judicial practice, and the broader social impacts of trademark enforcement, taking a multi-dimensional view of the issue The two most important measures at present are to amend and supplement the provisions governing trademark disputes within the civil procedure framework, in order to enhance clarity, efficiency, and fairness in remedying and adjudicating trademark conflicts.
IP Law and the resolution measures in CP Code and CA Law as well as improve the organization structure of dispute settlement mechanism by increasing the NOIP‘s roles and establishing professional courts with competence over intellectual property cases
Globalization and the effective enforcement of IP law have made trademark registration, protection, and dispute resolution increasingly efficient, with provisions aligned to international regulations such as core IP concepts, trademark classification, and dispute-settlement measures that conform to TRIPs and other treaties These provisions are harmonized with international standards, enabling disputes to be resolved through negotiation, mediation, or jurisdiction-based remedies like court litigation and arbitration Mediation and negotiation are recognized as effective alternative dispute resolution methods by WIPO, the United States, and EU countries, while civil courts remain a central forum for resolving trademark disputes in many jurisdictions In Vietnam, civil procedure continues to play a crucial role, but the content and organization of civil procedure require reform to address emerging challenges, and globalization calls for a re-examination and harmonization of trademark dispute settlement measures.
There is a noticeable gap between the Vietnamese legal system and other jurisdictions, especially the European Union's trademark law framework, in the area of trademark dispute resolution Through this thesis, I aim to introduce EU trademark dispute settlement mechanisms and the relevant provisions of EU law, highlighting one of the most developed legal systems for trademark protection By examining Community Trademark dispute resolution practices, the Vietnamese legal system can draw lessons to enhance its own trademark regime.
Dispute resolution for trademarks is a complex area of modern trademark law This article concentrates on national legal frameworks and the European Union regime, outlining how these systems address trademark disputes However, the discussion also supports a broader comparative perspective, suggesting that the topic can be explored through comparisons with the United States legal system and with other Asian countries A cross‑jurisdictional view can deepen understanding of how different regimes resolve trademark disputes and inform practice in international trademark governance.
Due to limitations in timing and scope, this thesis may contain some errors The author therefore welcomes comments and constructive feedback from teachers and students to help refine the topic and improve the work, guiding future revisions.
I NATIONAL LAWS AND OTHER DOCUMENTS
5 Decree No 105/2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the law on intellectual property on protection of intellectual property rights and on state management of intellectual property
6 Joint Circular No 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT&DL- BKH&CN-BTP of April 3, 2008, guiding the application of a number of legal provisions to the settlement of disputes over intellectual property rights at people‘s courts
7 Circular No 01/2007/TT-BKHCN of February 14, 2007, Guiding the implementation of the Government‘s Decree No 103/2006/ND-CP of September 22, 2006, Detailing and Guiding the Implementation of a Number of Articles of the Law on Intellectual Property Regarding Industrial Property
8 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),
9 Paris Convention for the Protection of Industrial Property, March 20, 1883
10 Agreement between the United States of America and the socialist republic of Vietnam on trade relations (Bilateral Trade Agreement in July 2000)
11 First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks
12 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark
13 Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (amended Regulation No 40/94)
14 Directive 2008/95/EC of the European parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (replaced Directive 89/104/EEC)
17 Dr Le Trung Dao, Syllabus of Protection of intellectual property right, Financial and Customs College, Ministry of Finance
18 Le Net, ―Intellectual Property Rights‖, lecture material, Ho Chi Minh City National University, 2005
19 Syllabus of Intellectual Property Law, HCMC University of Law, published in Hong Duc, 2012
20 LLM Pham Anh Tuan (ed.), Ph.D Vu Trong Hach, LLM Phung Van Hien,
―State management of intellectual property‖, scientific and technical published
21 ―Practical Skills – Basics of Intellectual Property Law‖, co-sponsored by the Intellectual Property Law Section and The Committee on Continuing Legal Education of The New York State Bar Association, 2008
22 Black‘s Law Dictionary, Second pocket edition, 2001
23 Guy Tritton, ―Intellectual Property in Europe‖, 2002, London sweet & Maxwell
24 LTC Harms, ―The enforcement of intellectual property right: A case book‖,
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26 Kamil Idris, ―Intellectual Property, a powerful tool for economic development‖, WIPO
27 Kenneth L Port, ―Trademark Law and Policy‖, Carolina Academic Press
28 Foskett & David, ―The law and Practice of Compromise‖, Sweet & Maxwell,
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32 Dao Minh Duc, ―Some issues about trademarks evaluation‖
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34 Nguyen Hoan Thanh , the article ―Intellectual property disputes settlement via way of arbitration or mediation‖
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36 Le Net, ―Mediation in civil proceedings - from an economic perspective‖,
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43 Paul B Birden, ―Trademark Protection in China: Trends and Directions‖
44 Eun-Joo MIN, ‗‗Arbitration, Mediation and Expert Determination - Time- & Cost - Efficient Dispute Resolution Tools‘‘, Arbitration and Mediation Center, WIPO
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52 Phan Ngoc Tam (2011), "Protection on well-known trademarks - a comparative study between European Union law and Vietnamese law", dissertation
53 Nguyen Thi Thuong, 2012, bachelor‘s thesis ―trademark dispute settlement under Vietnamese law – situation and resolution‖
54 U Thi Bach Yen (2006), ―Law on protection of intellectual property right – Practical application in Ho Chi Minh courts‖, master‘s thesis
55 Duong Dinh Cong, ―Enforcement of intellectual property right under the law of Vietnam and some countries in Southeast Asia", master‘ thesis (2011)
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