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Amendments to Trademark Laws

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Jan 30, 2018 (Newsletter Issue 2/18)
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Significant Amendments in IP Laws

The fourth amendment to the IP laws of Vietnam comes into force on January 15, 2018. Circular No. 16/2016/TT-BKHCN (also called Circular No. 16), which was issued on June 30, 2016 by the Ministry of Science and Technology of the Government of Vietnam which amends as well as supplements a number of articles of Circular No. 01/2007/TT-BKHCN (also called Circular 01). The amended circular No. 16 is a critical guidance document for implementing IP laws in Vietnam. These amendments are effective from January 15, 2018.

The amended circular has a major impact on the Intellectual Property practice followed in Vietnam as it modifies almost 49 out of 67 points present in the currently followed circular No. 1.

Further, these modifications will resolve certain issues and concerns and align the IP laws of Vietnam with International IP system. The modifications mostly apply on the examination procedures conducted by National Office of Intellectual Property (NOIP) of Vietnam related to Patents, Trademarks, copyrights, Designs and other IPR. These provisions will also create favorable conditions for applicants for obtaining IP rights in Vietnam.

Below mentioned are some of the important amendments and supplements provided by the Circular No. 16 related to examination process of general regulations and trademarks:

1. General Regulations
- Revision of time limits for filing response to Office Action
The time frame to respond to an office action concerning Formality Examination will now be 2 months instead of 1 month.
The timeframe to respond to an office action concerning substantive examination will now be 3 months instead of 2 months.
The deadline for the payment of registration fee will be 3 months instead of 1 month.
- Appeals and their settlements
Addition of new facts/details in application will not be accepted at the appeal stage. However, on the request made by the applicant or appellant, NOIP may re-examine such new facts/details. The amended circular allows the appeals settlement body to seek opinions of independent experts if the appealed case has a degree of complexity.
- Decisions on Refusal
On getting a decision of refusal after substantive examination, the applicants can overcome the same by submitting new facts/details which were not considered in the examination and the NOIP may consider withdrawing the decision of refusal. The applicants do not have to lodge an appeal against the decision of refusal.

2. Key changes on trademarks
- Rights to object to disclaimers of the NOIP within three months from the notification date
- Response to office action regarding international application
In cases where, the Madrid application is rejected by NOIP, the applicant, has a three-month period to respond to the provisional refusal by NOIP, and then 90 days to appeal the decision on refusal.
- Recognition of well-known marks
through the settlement of enforcement or opposition/examination of a trademark that is identical/confusingly similar to the concerned mark.
- The modified circular expressly clarifies the type of organizations that can register collective marks, which was not mentioned in the earlier circulars.

Source: Khurana & Khurana Advocates and IP Attorneys, India