Why could we register and be granted protection titles in Vietnam for invention, trademark,… but couldn’t for trade name and trade secret? In this writting below, T2H Lawyers would like to answer this question.
Grounds for the generation and establishment of Intellectual Property rights stipulated in sub-clauses (b) and (c) Clause 3 Article 6 of Law on Intellectual Property:
“ (b) Industrial property rights to a trade name shall be established on the basis of lawful use thereof;
(c) Industrial property rights to a trade secret shall be established on the basis of lawful acquirement of the trade secret and maintaining confidentiality thereof;”
According to these provisions, one of the diffirences between trademark, invention, geographical indication,… and trade name, trade secret is that trade name, trade secret aren’t required to register for protection in competent agencies. In Vietnam, the registration for trade name and trade secret Intellectual Property rights hasn’t been exersised yet for some reasons:
1.Intellectual Property rights to a trade name is estabished via the lawful use thereof. The provisions of Law is apprehensible and simple but in fact, these provisions is preventing the registration for Intellectual Property rights.
Owning to the duplication and inconsistency in the provisions of Law, it’s hard to determine which is a protected trade name among company’s name written in business license, name used in business activities,…
Each organization, invidual uses many diffirent name in business activities, meanwhile, the Law admit various type of names such as company’s name, cognomen, trading name, abbreviation, Vietnamese name, foreign language name,… Moreover, many enterprises also specify additionally foreign name, domestic name that makes it difficult and complicated to understand and determine how is a trade name for the registration.
2. The recognition mechanism to trade secret is based on the lawful acquirement and maintaining confidentiality In present, Vietnam hasn’t exersied the registration for Intellectual Property rights of trade secret for reasons listed below:
- The owner’s mentality is reluctant to have his trade secret disclosed, sharing.
The registration for Intellectual Property rights requires the owner to reveal, demonstrate his trade secret under a certain form (as writting) for competent agencies to examine. Therefore, it is a risk for the owner when his trade secret losts its neccesary confidentiality, be known by many people.
Additionally, the competitive level of the market is becoming more and more intensive, thus, the owner is scared if his information is shared, disclosed. Besides, because employees now have rights to choose and change their work environment freely, they could bring the information from old workplace to new workplace (which is usually their old company’s opponent). Thence, the owner is loath to have his trade secrect disclosed completely.
- The difficulties in indentifying, examining trade secret.
Law on Intellectual Property and elevant documents specify some qualities to identify and examine a trade secret but these qualities are vague, unclear and prevent competent person/ organzation from verifying, recognizing trade secret.
Then, since trade secrets could be discovered in many diffirent fields and not be normal knowledge, competent person/ organzation will have difficulties in indentifying and examining whether it is a trade secret or not.
Contact T2H Lawyers for more information.
T2H Law Liability limited company
Head office: G4-4A, Dormitory 708, Lien Ninh, Thanh Tri, Hanoi
Branch office: 20N7A Nguyen Thi Thap, Nhan Chinh Ward, Thanh Xuan District, Hanoi.
Phone: 0242 242 9900 – 0989 656 682
Email: email@example.com – firstname.lastname@example.org