Intellectual property rights play a vital role in fostering economic development and protecting national interests. As Vietnam integrates further into the global economy, especially with its participation in international agreements like the Trans-Pacific Strategic Economic Partnership Agreement (TPP), the need to clearly understand the distinctions between different types of intellectual property becomes critical. This article explores the fundamental differences between trademarks and geographical indications (GIs), discusses the possibility of protecting GIs as trademarks, and evaluates their similarities and differences.
1. Can Geographical Indications Be Protected as Trademarks?
On October 5, 2015, Vietnam officially joined the Trans-Pacific Strategic Economic Partnership Agreement (TPP). This agreement is of immense significance, especially after Vietnam’s accession to the WTO, as it opens up new opportunities for the country’s economic development. However, the intellectual property (IP) protection negotiations within the TPP framework have been particularly intense, with proposals from the United States pushing for increased levels of protection, commonly referred to as TRIPS+.
For geographical indications, the United States has proposed simplifying the protection mechanism by treating GIs as trademarks. While this proposal aims to streamline GI protection, Vietnam must carefully evaluate its implications. For a developing country like Vietnam, achieving favorable terms in the TPP, particularly in areas like tariff reductions and market access to developed countries such as the United States, is crucial.
However, accepting GI protection in the form of a trademark could compromise national interests. As an agricultural country with numerous products tied to specific regions, Vietnam has a strong competitive advantage in protecting its GIs. Simplifying GI protection mechanisms could lead to the risk of unregistered GIs being easily appropriated by individuals or organizations under the “first-to-file” principle. GIs, with their unique conditions for protection, are considered communal assets belonging to the local community of the respective geographical region, with the state acting as the legal representative.
To date, Vietnam has 74 protected GIs, including six foreign GIs and 68 domestic ones. Notably, “Phú Quốc Fish Sauce” is the only Vietnamese GI protected in the European Union since 2013.
Although Vietnam’s legal framework for GI protection is relatively comprehensive, it lacks a clear mechanism for quality control of products registered under GI protection. Consequently, domestic GIs often suffer from inconsistent quality, reducing their competitiveness. A key measure to enhance the quality and development of Vietnamese GIs is to establish a national quality certification system during the review and recognition process for GI protection.
2. Similarities Between Trademarks and Geographical Indications
Trademarks and geographical indications share several similarities as forms of commercial identifiers. Both are recognized as subjects of industrial property rights under Vietnam’s Intellectual Property Law.
- Both Are Commercial Identifiers: Trademarks and GIs serve as indicators of trade, goods, or services. They provide information to guide consumers and distinguish products in the marketplace.
- Both Are Represented by Signs: Trademarks can be letters, images, drawings, three-dimensional shapes, or combinations of these elements. Similarly, GIs often include letters that indicate the geographical origin of the product.
- Territorial Scope of Protection: Both trademarks and GIs are protected throughout the entire territory of Vietnam.
- Registration Requirement: Both trademarks and GIs require registration to establish rights. Applications must meet the necessary conditions to be approved and follow the required procedures to obtain a certificate of protection. Once protection is granted, the trademark or GI owner gains the associated legal rights
3. Differences Between Trademarks and Geographical Indications
The distinctions between trademarks and geographical indications can be summarized as follows:
| Criteria | Trademarks | Geographical Indications |
| Definition | A trademark is a sign used to distinguish the goods or services of different organizations or individuals. | GIs are signs used to identify products originating from a specific area, locality, region, or country. |
| Examples | For instance, “Pepsi” is a trademark identifying a specific beverage. | An example of a GI is “Cao Phong” (Hòa Bình) for oranges. |
| Scope of Use | Trademarks are used for goods and services. | GIs are used exclusively for goods, particularly those with a specific geographical origin. |
| Function | Trademarks distinguish the goods or services of the trademark owner from those of others. | GIs indicate that a product originates from a specific area and possesses certain qualities or characteristics. |
| Conditions for Protection | Visible signs such as letters, words, images, or their combinations must distinguish the goods or services. | Products must originate from a specific area and possess qualities, reputation, or characteristics linked to that region. |
| Duration of Protection | Trademark protection lasts 10 years and can be renewed indefinitely in 10-year increments. | GI protection has no fixed term and lasts as long as the conditions for protection are met. |
| Ownership | Trademarks are owned by organizations or individuals granted a certificate of protection. | The state owns GIs and represents the local community in managing them. |
| Conditions for Termination | Includes failure to pay renewal fees, abandonment, or non-use for five consecutive years without justification. | When the conditions for the GI’s reputation, quality, or characteristics are no longer met. |
| Right to Register | Legally established individuals or organizations can register trademarks for goods or services they produce or supply. | The state registers GIs but may authorize individuals, organizations, or local administrative agencies to apply. |
In conclusion, while trademarks and geographical indications share common traits as identifiers of goods and services, their functions, ownership, and conditions for protection differ significantly. As Vietnam engages in international trade agreements such as the TPP, understanding and preserving the unique characteristics of GIs becomes a strategic priority. Protecting GIs as standalone intellectual property, rather than as trademarks, ensures that Vietnam’s valuable agricultural and regional products retain their competitive edge and communal ownership. Establishing a robust system for GI quality certification will further enhance the value and reputation of Vietnam’s geographical indications on the global stage.
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Dinh Phuong Thao