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The appeal process in Vietnam involves two potential stages, with the option of initiating legal action at any point:
1. First-Time Appeal (Internal Appeal)
Response to refusal notice: Upon receiving a notification of intended refusal from IP Vietnam, applicants have 3 months to submit a response objecting to the decision.
Appeal Decision: If your response is unsuccessful, IP Vietnam will issue a formal refusal decision (first decision).
Appeal options: Applicants can then choose one of two options:
- Internal appeal with IP Vietnam: File an appeal against the first decision within 90 days of receiving it. IP Vietnam has 30 days (extendable to 45 days for complex cases) to settle the appeal.
- Lawsuit against IP Vietnam: File a lawsuit challenging the refusal decision in a Vietnamese court.
2. Second-Time Appeal (External Appeal)
Appeal of first-time appeal Decision: If the internal appeal is unsuccessful or remains unresolved after the deadline, applicants can pursue a second-time appeal.
Appeal options: There are two choices:
- Appeal to Ministry of Science and Technology (MOST): MOST, the supervising body of IP Vietnam, can review the case. Applicants have 30 days from the expiration of the first-time appeal deadline or from receiving the first-time appeal decision to file. MOST has 45 days (extendable to 60 days for complex cases) to settle the appeal.
- Lawsuit against MOST's Decision: Applicants can file a lawsuit againt MOST’s Decision.
3. Initiating a Lawsuit
- Administrative lawsuit option: At any stage of the appeal process, applicants can choose to bypass the internal and external appeal procedures and directly file an administrative lawsuit against IP Vietnam or MOST's decision.
- Time limit for lawsuit: Applicants have 1 year from the expiration of the appeal deadline or from receiving the relevant decision to initiate a lawsuit.
4. Important considerations
- Time limits: Strict deadlines apply at each stage of the appeal process. Missing deadlines could result in your appeal being dismissed.
- Legal representation: Considering the complexities involved, consulting with an experienced Vietnamese intellectual property lawyer is highly recommended. They can guide you through the appropriate course of action, prepare a strong appeal case, and represent your interests effectively.
Final thoughts
Trademark refusals in Vietnam can stem from various reasons, such as similarities to existing registered trademarks, resemblance to expired trademarks within a certain timeframe, or being deemed descriptive in nature. However, a rejection doesn't necessarily mean your trademark fails to meet protection standards. In many cases, it may reflect the subjective views of examiners. Understanding the appeal process and taking prompt action can significantly increase your chances of reversing the decision. Not only can you successfully challenge the refusal, but you can also safeguard your brand protection in Vietnam.
