If the trademark is finally rejected to register in Vietnam, is there any remedy procedure?
If Vietnam IP issues a final decision to reject a trademark application, there are 02 (two) remaining options for recourse. In detail, the applicant may either file an appeal with the with the Science and Technology Minister (“MOST”), the supervising body of the IP Vietnam or initiate lawsuits at court.
If an applied-for mark is finally rejected to register by the MOST or a competent court in Vietnam, assuming that such refusal is based on absolute ground (e.g. a merely distinctive mark or weakly distinctive mark), the applicant may consider commencing use his/her mark in the marketplace to collate evidence of wide use and, simultaneously, file another trademark application. This aims at securing priority/filing date if a third party files a similar mark. However, this approach may still be risky and meaningless because acceptance of a merely distinctive mark or weakly distinctive mark requires abundance of evidence to substantive that it has acquire distinctiveness through use before the filing date of the trademark application, but no explicit regulations are statutorily set out on how much evidence is required for such recognition of adequate inherent distinctiveness of a merely distinctive mark or weakly distinctive mark to eligible for protection as a mark.
If an applied-for mark is finally rejected to register by the MOST or a competent court in Vietnam, assuming that such refusal is based on relative ground (e.g. confusing similarity to an earlier right), use or continuous use of the applicant’s mark in Vietnam may place the user at high risks of trademark infringement. In such regard, the applicant is recommended to alter their trademark for registration in Vietnam. A pre-filing availability search is critically important to work out certain possible obstacles to a proposed mark.