Monday, January 22, 2018

IPR in Vietnam, handle infringement, IPR protection in Vietnam

The function of trademarks and protection of trademarks

We are living in a consumer society surrounded by many goods and services, and the decision to purchase a particular good or service depends in large part on trademark. For many trademarks, they represent more than just the names of the owners; they are also visual symbols for indicating the origin of goods and services.

Trademarks possess important functions, and are protected as a kind of intellectual property. They act as tools necessary for maintaining goodwill and reputation, as acquired through fair use of a trademark, secure and, at the same time, benefiting consumers by assisting in the selection of goods or services, among many sources, of desired quality or taste.

Normally, a trademark has the following main functions: it functions to distinguish a source, to indicate an origin, to guarantee quality and function of advertising or association. In fact, the first two functions of the trademark are mutually interdependent, and should always be considered together. The two latter functions are derived from the two former functions.

Trademark function is to identify goods or services for the customer so that the customer is able to identify the one's goods and services from those of other's competitors. To accomplish this function trademark should have  the ability to differentiate itself and differentiate from others. The ability to differentiate itself gives trademark an impressive impact on  the  overall perception of consumers, so they can recognize, remember and compare with other trademarks. This character may change, depending on the actual use of trademark in the marketplace. For example, a mark is a sign of simple (two letters, a simple set of geometrics, etc.) which was deemed undistinguishable after a long time being used continuously, extensively and intensively, could become a possible sign of self-distinction for consumers. In this case, a generic sign may overcome its genericness if it obtains a secondary meaning that can be used to identify a source or goods or services.

The function of indicating origin is closely linked with distinguishing features, as the trademark allows consumers to distinguish products or services bearing that trademark with those of  others made at  mark it  completed the function of indicating origin. Identification of products or services and producer provider is an essential characteristic of trademarks and lays the foundation for the trademark in the distribution marketplace. When consumers see a mark, they know from where the product or service came. Moreover, when a consumer sees a trademark, they recall something good or bad about the goods or services bearing that trademark.

The fourth function of trademarks is to serve as a guarantee of quality. The use  of trademarks causes  consumers, perhaps unconsciously, to  recognize a certain quality of goods or services in connection with the mark. Historically, the trademarks were used primarily to indicate the source of goods or services so that consumers were able hold producers responsible for poor quality or defective products. The trademark holders try to maintain consumer loyalty to their goods or services by using their sign in order to promote their reputation in the marketplace. For example, Honda is a trademark for motorbikes which are very familiar to Vietnamese consumers. When they want to purchase a fuel efficient, durable, well-designed motorbike at a reasonable price, among so many brands, Honda is often the first choice of many people, because they believe in the quality of products made by Honda. The similarity of products creates an increased emphasis on the quality function trademarks serve because consumers will have difficulty in determining which good to purchase in place of another if all of the choices within a specific class of products are nearby identical. Herein lays the importance of trademarks - to ensure that consumers may determine their preference for goods or services depending on the identifying qualities maintained by a trademark. Therefore, trademarks play a significant role in the marketplace because they have the function of protecting consumers and forcing businesses to retain accountability for the quality of their goods or services.

The other significant function of a trademark is the role of advertising or association. The advertising function of a trademark is reflected in the ability of the  mark to  call  to  mind the  specific product and  to  evoke associations of satisfaction  and  desirability  for  that  product.  Consumers  buy  a  product  or services affixed certain trademark, they memorize that trademark, are familiar with that trademark and keep an image of that trademark in their mind such as:

Louis Vuitton - a  luxury bag, Toshiba -  a  high-quality electronic company, Google - a convenient search engine on the Internet. In this situation, trademarks can function as an advertising tool. The reputation of a company is automatically embodied in  their trademark. If  products acquire a  very positive reputation, trademarks affixed to these products become well-known and valuable. Furthermore, trademarks encourage manufacturers to put forth their best business efforts at all  time because trademarks allow users to  develop or destroy an association of goodwill to a business.

A trademark has the above functions, all of which are mutually interconnected. However, in particular terms, the most important function of trademarks is to distinguish the source or origin of goods or services. On the other hand, the trademark owner must continue efforts to keep "goodwill" as will naturally be established by maintaining the quality of goods or services as well as the reputation acquired through the use of trademarks.

As above-mentioned, trademark has an important function, not only for trademarks holder but also for consumers, and society at large, therefore trademark protection is also very important.

As a result of long and extensive use, a trademark can create and increase goodwill (or trust) for the business owning the said trademark in respect to the goods or services. Once goodwill has been established, the trademark owner may enjoy very important benefits; that is, once goodwill is established for a trademark, a positive image clearly remains in the memory of consumers, and the merchandise or  services  represented  by  that  specific  trademark,  among  any number of competitive options, are likely to be selected or desired again. Similarly, demand also naturally repeats and, as a result, that business's occupied market share may be maintained so long as the good reputation of trademark is maintained.

On the other hand, it also holds true that one may expect the occurrence of unfair trade activities (such as infringement or unfair competition)   by unauthorized  parties wishing to profit unjustifiably through   utilization of the good  reputation  or  goodwill  already  established  by  a  trademark  owner.

Accordingly, in order to keep the adequate functioning of trademarks and to properly protect  the  goodwill created  through their  continuous use  effective protective legislation is necessary.

trademark protection is  also  necessary  for  customers  who  purchase products or services bearing protected trademarks. Once a trademark is protected, the owners of trademark must keep their eyes on the quality of their products or services in connection with that trademark and customers can believe in their choice.

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