Vietnam Absolute Grounds Under IP Law Articles 73 and 8: Prohibited and Deceptive Signs

Vietnamese trademark law does more than filter out non-distinctive signs. It also bars certain subject matter altogether because registration would conflict with public authority, consumer protection, or public policy. These absolute grounds matter to applicants because they are examined ex officio by the Intellectual Property Office of Vietnam and can lead to refusal regardless of whether any third party objects. Marks containing national emblems, official names, misleading claims, or content contrary to social ethics and public order are particularly vulnerable. Businesses using patriotic, governmental, endorsement-like, or highly assertive advertising themes should therefore screen proposed marks carefully before filing in Vietnam.

The Legal Framework: Law on Intellectual Property Articles 8 and 73(1) to (5), with Article 117

• Article 8.1: the State shall not protect intellectual property objects contrary to social ethics, public order, or harmful to national defense and security.
• Article 73(1): signs identical with or confusingly similar to national flags, national emblems, and anthems of Vietnam or other countries are ineligible for protection.
• Article 73(2): signs identical with or confusingly similar to symbols, flags, armorial bearings, abbreviations, or full names of Vietnamese state agencies, political organizations, socio-political organizations, socio-political-professional organizations, social organizations, socio-professional organizations, or international organizations are barred without authorization.
• Article 73(3): signs identical with or confusingly similar to the real names, aliases, pseudonyms, or images of leaders, national heroes, or famous personalities of Vietnam or foreign countries are barred without authorization.
• Article 73(4): signs identical with or confusingly similar to certification seals, check marks, warranty seals, or hallmarks of international organizations are barred where use is not authorized.
• Article 73(5): signs that cause misunderstanding or confusion or deceive consumers as to origin, properties, intended use, quality, value, or other characteristics of goods or services are ineligible for protection.
• Article 117: provides the substantive examination basis for refusing marks that do not satisfy protection conditions, including those excluded by Articles 8 and 73.

Absolute Grounds for Prohibited Signs, Official Symbols, Public Policy and Deceptive Marks

The legal tests under Articles 8 and 73 are conceptually different from descriptiveness and relative grounds. Here the issue is not whether the sign distinguishes the applicant’s goods from those of others or whether it conflicts with an earlier private right. The issue is whether the sign is of a kind the State will not permit as a private trademark at all.

Under Article 73(1) to (4), the prohibition focuses on official authority, state symbolism, institutional identity, and famous persons. These provisions implement both domestic policy and Vietnam’s international obligations concerning protected official insignia. NOIP takes a strict approach because the public should not believe that goods or services are endorsed by the State, a governmental body, an international organization, or a notable public figure where no such authorization exists.

Under Article 73(5), the focus is consumer deception. A mark is deceptive if its wording, imagery, or overall message is likely to cause consumers to form a false belief about origin, composition, quality, purpose, value, or another characteristic of the goods or services. This is broader than classic trademark confusion with another mark. The deception can arise from the sign itself.

Article 8.1 is broader still. It captures signs contrary to social ethics, public order, or national defense and security. In practice this is the public policy and morality provision. It allows NOIP to refuse signs that are obscene, offensive, extremist, or otherwise inconsistent with core public interests.

What Intellectual Property Office of Vietnam Considers Prohibited or Deceptive

Official symbols and emblems

NOIP is strict with any mark that reproduces or imitates a national flag, state emblem, military insignia, or seal-like sign. The problem is not limited to exact copies. Marks that are confusingly similar to official devices can also be refused. A circular crest with a star, wreath, and institutional styling may raise concerns even if not identical to an official emblem.

The same applies to abbreviations and names of public bodies and international organizations. A sign that uses the name or abbreviation of a ministry, governmental authority, or recognized international body may be refused unless there is clear authorization.

Names and images of leaders, heroes and famous personalities

Article 73(3) is unusually important in Vietnam because it extends beyond purely political figures to national heroes and famous personalities of Vietnam or foreign countries. Applicants should avoid using the name, pseudonym, portrait, or signature-like image of a prominent person unless the legal basis for doing so is clear and documented.

Deceptive marks

NOIP looks at whether the mark falsely suggests origin, ingredients, production method, quality level, or another material characteristic. For example, wording that implies a specific place of origin when the goods do not come from that place can be deceptive. A mark promising a composition or standard the goods do not meet may also be refused. A government-style emblem implying official certification or safety approval may trigger both Article 73(5) and Article 73(2) or (4).

Deception can also arise in combined marks through imagery. A mark that uses symbols of health certification, organic certification, or state approval without basis may create a false impression even if the wording is not explicitly deceptive.

Public order and morality

NOIP is likely to refuse marks containing profanity, sexual imagery, hate speech, violent extremist symbolism, or content that undermines social ethics or public order. The scope of Article 8.1 is intentionally broad. Applicants should assume a conservative official approach. Content acceptable in some Western advertising environments may still raise objection in Vietnam.

Language and translation

The office considers meaning, not just appearance. A vulgar or misleading meaning in English or another widely understood language may still be problematic. Likewise, a transliterated sign that refers to a public institution or famous figure can be caught by the prohibition even if it is not written in Vietnamese.

Combined marks and dominant elements

If a combined mark includes a prohibited emblem or deceptive wording as a prominent element, the entire mark is at risk. A decorative logo will not neutralize a false claim or an unauthorized official symbol. Conversely, even if the verbal element is unobjectionable, a problematic device element can independently trigger refusal.

Key Case Law

No leading cases have been published in the source guide on Vietnamese court interpretation of Articles 8 and 73(1) to (5) in the trademark registration context. The guide notes few published litigations on deceptiveness and indicates that office practice and administrative enforcement are the main practical reference points.

The Procedure for Responding to an Absolute-Ground Refusal Under Articles 8 or 73

Step 1: identify the exact statutory basis

Applicants should determine whether NOIP is relying on Article 73(1) to (4), Article 73(5), Article 8.1, or multiple provisions together. The response options differ materially depending on the ground.

Step 2: assess whether amendment is realistic

If the refusal concerns an unauthorized flag, emblem, public body name, or famous person image, amendment of the mark itself is usually the only practical solution. These are generally not curable by argument alone. If the issue is a specific deceptive claim tied only to certain goods, narrowing the specification may help in limited cases.

Step 3: provide authorization if legally available

Where the issue is use of a protected name, abbreviation, or symbol and the applicant genuinely has authorization, the response should include formal supporting documentation. This will be uncommon in ordinary commercial filings.

Step 4: rebut alleged deception with factual evidence

If NOIP alleges deception under Article 73(5), the applicant may submit evidence showing that the claimed origin, ingredient, quality, or method is accurate, or that the mark would not be perceived as a factual claim by the relevant public. The more literal the wording, the harder this is.

Step 5: argue overall perception for borderline morality issues

For an Article 8.1 objection based on public policy or morality, the applicant can attempt to explain the cultural or figurative meaning of the sign and why it would not offend or undermine public order. Success is uncertain because NOIP has broad discretion in this area.

Step 6: appeal if there is a serious legal basis

Final refusals may be challenged administratively or in court within the applicable time frame. In practice, appeal is most viable where the refusal turns on factual misunderstanding rather than obvious prohibited matter.

Strategic Recommendations

• Recommendation: screen marks for all governmental, military, institutional, and certification-like imagery before filing in Vietnam.
• Recommendation: avoid names, portraits, and famous personality references unless there is a documented and legally defensible basis to use them.
• Recommendation: review all quality, origin, and composition claims in brand names and logos as if they were regulatory claims, not merely marketing language.
• Recommendation: assess meaning across languages, especially English and Vietnamese, because NOIP may consider both semantic content and local perception.
• Recommendation: redesign rather than litigate where the mark plainly contains prohibited official matter, since these objections are usually difficult to overcome.

Common Mistakes

• Mistake: assuming that a stylized or partial version of a flag or state emblem avoids Article 73.
• Mistake: using government-style badges or seals to suggest reliability or certification without considering deception and official-symbol objections.
• Mistake: treating place references or quality statements as harmless branding when they may imply false origin or product characteristics.
• Mistake: overlooking the protection of famous personalities under Article 73(3), especially foreign public figures.
• Mistake: underestimating the breadth of Article 8.1 and assuming edgy or provocative branding will be assessed narrowly.

Key takeaway: Articles 8 and 73 create hard stops for signs that appropriate official authority, mislead consumers, or offend public policy. In Vietnam, these issues are examined ex officio and usually call for redesign, not merely better argument.