Linh Thi Mai Nguyen and Son Thai Hoang of Tilleke & Gibbins examine intriguing recent Vietnamese copyright case law and consider the definition of a ‘bona fide third party’ in relation to civil transactions
During the early months of 2019, the Vietnam IP field enjoyed a rare burst of public attention. First there was the wide reaction to the IP changes ushered in by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which took effect on January 14 2019. Then the spotlight moved to two high-profile copyright lawsuits related to derivative works, when the People's Court of Ho Chi Minh City's (HCMC) District 1 returned a verdict in a 12-year-old case on February 18 2019, and the People's Court of Hanoi issued its decision on a similar case on March 20 2019. The cases were heard by courts at opposite ends of the country, and the results might also be called opposite.
Under Vietnamese law, if a logo is capable of distinguishing the goods or services of its holder from those of others, it can qualify for trade mark protection. If the logo is created personally by the author without copying others' works and is fixed in a material form, it can also be copyrighted as a work of applied art (assuming it meets the minimum creativity threshold).
Article 115 of Vietnam's IP Law prohibits any amendment of a mark in a pending application that "materially alters" the character of the original mark or expands its scope of protection. However, the question of what constitutes material alteration in Vietnam is not easily answered, as the law remains silent, and the interpretation of the National Office of Intellectual Property (NOIP) can vary depending on the department or the examiner.