Vietnam Trademark Registration Under IP Law Articles 72, 90 and 112a: System Overview

Vietnam’s trademark system is a registration-based, first-to-file regime administered by the Intellectual Property Office of Vietnam, commonly referred to as IP Viet Nam or NOIP. For businesses entering Vietnam or expanding an existing brand portfolio there, understanding the filing basis, examination flow, publication process, opposition window, and post-acceptance steps is critical because procedural timing often determines who secures rights. In Vietnam, prior use is not required to file, but the filing date is legally decisive in competing claims. That means a commercially important mark can be lost to an earlier filer even if that filer was not first in the marketplace. Applicants therefore need to approach Vietnam as a jurisdiction where clearance, filing strategy, and deadline management matter as much as substantive registrability.

The Legal Framework: Law on Intellectual Property Articles 65, 72, 90, 109, 112, 112a, 117 and 118

• Article 65: trademark rights are established through registration, confirming Vietnam’s registration-based system rather than a use-based filing basis.
• Article 72: a protectable mark must be a visible sign capable of distinguishing the applicant’s goods or services from those of others.
• Article 73: lists signs ineligible for protection on absolute grounds, including official symbols, deceptive signs, and names or images of leaders and famous personalities.
• Article 74: defines distinctiveness and the principal absolute and relative grounds for refusal, including descriptiveness, genericness, geographical descriptiveness, and conflicts with earlier rights.
• Article 90: establishes the first-to-file rule and priority between competing applications for identical or confusingly similar marks covering identical or similar goods or services.
• Article 109: sets out filing and formal requirements for industrial property applications, including the basic dossier requirements for trademark filings.
• Article 112: permits third-party observations on published applications.
• Article 112a: introduced a formal opposition mechanism before grant, effective under the 2022 amendments.
• Article 117: governs substantive examination and grounds on which NOIP may refuse protection, including bad faith under the amended law.
• Article 118: addresses notices of intended refusal and the applicant’s opportunity to respond.
• Article 136(2): imposes the obligation to use a registered mark after registration, relevant to post-grant vulnerability.
• Article 95(1)(d): provides for termination of validity where a mark has not been used for five consecutive years without justifiable reason, subject to the statutory grace mechanism.

Overview of Vietnam’s First-to-File Examination and Opposition System

Vietnam does not require an applicant to show use or intent-to-use as a filing basis in the way some common law jurisdictions do. The legal basis for registration is the filing itself, provided the sign satisfies the substantive conditions in Article 72 and is not excluded by Articles 73 and 74. This makes Vietnam operationally straightforward at filing, but strategically unforgiving. Under Article 90, if two parties seek registration of the same or confusingly similar mark for identical or similar goods or services, the earliest valid filing or priority date prevails. If applications share the same earliest date and the parties cannot resolve the conflict, all of them may be refused.

The examination process is divided into formality examination and substantive examination. During formality review, NOIP checks whether the application satisfies filing requirements, including the applicant details, reproduction of the mark, classification, fee payment, and any priority claim documentation. Formally deficient applications do not move forward until corrected. Once formally accepted, the application is published, after which substantive examination evaluates whether the mark meets all protection conditions under Vietnamese law.

Although Vietnam historically relied on third-party observations rather than a full adversarial pre-grant opposition procedure, Article 112a now provides for formal opposition before grant. This is a significant procedural development because it allows earlier rights holders and market participants to challenge pending marks directly within a statutory period after publication. For applicants, publication is therefore not merely an administrative milestone. It is the point at which registrability risk can increase materially.

What Intellectual Property Office of Vietnam Considers in Filing, Examination, Timeline and Opposition

NOIP examines both national applications and Madrid designations that extend protection to Vietnam. For Madrid cases, the same substantive standards apply. Decree-based implementing practice confirms that an international registration designating Vietnam undergoes content examination like a national filing. Businesses should therefore assume that a clearance problem, descriptiveness issue, or prior-right conflict will be treated similarly regardless of filing route.

Filing basis

Vietnam accepts applications without prior use. A foreign applicant may file directly in Vietnam through local representation or designate Vietnam through the Madrid Protocol. For domestic priority strategy, the filing date is often more important than evidence of market use. That said, evidence of use can later become critical if the mark is challenged as descriptive, non-distinctive, or vulnerable to non-use cancellation after registration.

Formality examination

NOIP’s published procedure indicates a nominal one-month period for formality examination from the filing date, subject to extension where the applicant is correcting deficiencies. If defects are found, NOIP issues a notice indicating the problems and allows one month to correct or object. Common issues include classification errors, vague goods descriptions, defects in the specimen, incomplete applicant information, and missing documents.

Publication

After acceptance as to formality, the application is published in the Industrial Property Official Gazette, generally within two months. Publication is crucial for watch services and enforcement strategy because it opens the window for third-party intervention. It is also the point from which the opposition period under Article 112a is calculated.

Substantive examination

Substantive examination generally begins from publication and is officially expected to take around six months for national applications, though actual pendency may be longer in practice. Examiners assess absolute grounds under Articles 73 and 74, relative grounds under Article 74(2), and any third-party observations or oppositions. The examiner may issue a notice of intended refusal, a notice requesting correction of minor defects, or a notice of intention to grant.

Opposition and observations

Vietnam now permits a formal opposition before grant under Article 112a. The guide indicates a five-month period from publication for submitting an opposition with evidence and fees. In parallel, third-party observations under Article 112 remain conceptually relevant. In practice, a rights holder monitoring the Gazette should act early because published marks can move quickly from publication into substantive examination and grant.

Languages and transliteration

Vietnamese is the operative language of prosecution before NOIP. Marks in Latin script, Vietnamese words with or without diacritics, foreign words, and transliterations may all be examined for meaning. Examiners will often consider whether a foreign-language term would be understood by the relevant public, especially where it describes the goods or matches an earlier mark conceptually. Applicants using English-language branding should therefore not assume that a foreign word escapes semantic review merely because it is not in Vietnamese.

Key Case Law

No leading cases have been published in the source guide specifically on the overall filing and examination timeline, formal opposition practice under Article 112a, or NOIP’s procedural handling of routine trademark examination. Vietnamese practice in this area is driven primarily by statute, implementing regulations, and NOIP administrative procedure.

The Procedure for Responding to a Procedural or Substantive Refusal

Applicants should respond methodically because Vietnam’s deadlines are short and missing them can convert a manageable objection into a final refusal.

Step 1: identify the type of notice

Determine whether the notice is a formality objection, a notice of intended refusal on substantive grounds, a request to correct minor errors, or a notice triggered by an opposition or third-party submission. The response strategy depends on the notice type.

Step 2: calculate the deadline immediately

For formality defects, NOIP generally allows one month to correct or contest the objection. For substantive refusals, the standard response period is two months from the notice date. The guide indicates that failure to reply adequately within the period leads to refusal.

Step 3: decide whether to amend, argue, or both

For formal defects, amendment is usually the most efficient course. For substantive objections, applicants may submit legal arguments, restrict the goods or services, disclaim weak matter where appropriate as a matter of argument, or provide supporting evidence. If the refusal is based on a cited prior mark, a narrower specification may sometimes reduce overlap. If the objection concerns descriptiveness, evidence of acquired distinctiveness may be considered, though this is a demanding route in Vietnam.

Step 4: address any opposition evidence directly

If a third party has filed an opposition under Article 112a, the applicant should answer the factual and legal points individually. That includes ownership chronology, differences between marks, differences in goods, coexistence evidence where available, and any deficiencies in the opponent’s proof.

Step 5: appeal a final refusal if warranted

If NOIP issues a final refusal, the applicant may appeal administratively within NOIP or bring a court action. The guide states that the appeal or court challenge must be initiated within 90 days of the refusal decision. This deadline should be treated as critical.

Step 6: pay grant fees promptly if accepted

Where the mark is accepted, the applicant must pay the issue fees. NOIP then proceeds to register the mark, generally within about 10 days of payment according to the published procedure.

Strategic Recommendations

• Recommendation: file early in Vietnam for commercially significant marks because Article 90 gives decisive weight to filing date, not marketplace priority.
• Recommendation: conduct a clearance search before filing, including Vietnamese-script, transliteration, and English-language variants, because NOIP examines both semantic and visual overlap.
• Recommendation: monitor the Gazette after publication of key applications so oppositions under Article 112a can be filed within the statutory period.
• Recommendation: draft goods and services carefully at filing, since broad or poorly tailored specifications increase both formality objections and conflict risk.
• Recommendation: plan for post-registration use, because a non-used mark becomes vulnerable under Articles 136(2) and 95(1)(d) after five consecutive years.
• Recommendation: treat Madrid designations and national filings as substantively equivalent for Vietnamese risk analysis, since NOIP examines them under the same standards.

Common Mistakes

• Mistake: assuming prior foreign use or reputation automatically protects the mark in Vietnam despite a later filing date. Vietnam is first-to-file under Article 90.
• Mistake: ignoring publication because the applicant believes examination is nearly complete. Publication opens the opposition and observation stage and can materially affect outcome.
• Mistake: waiting too long to respond to NOIP notices. One-month and two-month response periods are short and should be docketed immediately.
• Mistake: filing overbroad specifications without considering relative-goods overlap, which can create avoidable conflicts with earlier registrations.
• Mistake: overlooking future non-use vulnerability and treating registration as sufficient without a use and record-keeping plan.

Key takeaway: Vietnam is a strict first-to-file jurisdiction in which filing date, procedural discipline, and publication-stage risk management are central. Applicants that file early, respond promptly, and plan for both opposition and post-registration use are best positioned to secure and maintain protection.