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Hashtag can be registrable in Vietnam as a trademark?

Recently, Hashtag has been appearing more and more on social networks like Facebook, Twitter, Instagram, Google Plus, Youtube, etc. as a way of marking or grouping information together. However, in Vietnam, Hashtag has not yet been widely known by people.
Normally, Hashtag is understood as a word or a group of words with no space between them with the hash character “#” in front of it. Hashtag may be used to mark a general subject on social networks, to mark an object in a general question, to group a series of related information/events, to mark all messages/information/events in which the Hashtag included. For example, users can use Hashtag #vietthink to group a series of information/events/messages related to Vietthink Law Firm or other legal information/events, or Hashtag #trademark to mark/group all information/events in relation to trademarks, trademark registrations, trademark infringements, etc. or Hashtag #patent to group all information/events in relation to patent, patent registrations, etc.
  
Currently, Hashtag has been being popularly used by big, medium and small enterprises for advertising, promoting and guiding the clients’ though in Vietnam. Having an impressed and easy-understood Hashtag is an effective way to impress clients so that clients may recognize one highlight enterprise among others. As a result, each enterprise has to create high distinctive Hashtags to highlight itself in the market and for the client to easily find them in the crowd. Accordingly, the protection of these Hashtags is definitely necessary. However, the question is whether Hashtag is accepted for registration as a trademark by the National Office of Intellectual Property of Vietnam (“NOIP”)? 
In practice, up to now, there is no Hashtag which has been filed/registered in Vietnam as a trademark. In addition, no specific official guideline in Vietnam has been issued to guide the examination of Hashtag as a trademark.
In the opinion of the writter, Hashtag can be registrable as a trademark in Vietnam in case it meets all protection requirements on distinctiveness and distinguishability as the stipulated in the IP Law and regulations for trademarks. 
For a Hashtag to be registered as a trademark, meeting requirements on distinctiveness is extremely important. Before planning to register a Hashtag as a trademark, the trademark owner should consider all the requirements on the distinctiveness of mark to choose an appropriate Hashtag. In accordance with available IP Law and regulations, the following Hashtags, including but not limited to these Hashtags, cannot registrable due to the reason of having no inherent distinctiveness:
  • Hashtag includes sign which is identical or confusingly similar to abbreviations, full names of State agencies, political organizations, socio-political organizations, socio-political professional organizations, social organizations or socio-professional organizations of Vietnam or international organizations, unless permitted by such agencies or organizations, e.g. #unicef, #wipo, #MOST, etc.;
  • Hashtag includes sign which is contrary to public, harmful to national defense and national security, e.g. #binladen, #terrro, etc.;
  • Hashtag includes sign which is identical or confusingly similar to real names, alias, pen names or images of leaders, national heroes or famous persons of Vietnam or foreign countries, e.g. #hochiminh, #lenin, etc.;
  • Hashtag includes sign which indicating the time, place, method of production, kind, quantity, quality, property, composition, intended purpose, value or other characteristics, which is descriptive of the goods or services, except for signs having acquired distinctiveness through use before the filing of mark registration applications, e.g. #madeinvietnam, #breadhandmade (for the goods/services in relation to bread, biscuits, confectionery, etc.);
  • Hashtag includes sign which is used as common names which have been widely and often used and are common knowledge, e.g. #perfume, #resort, etc.;
  • Hashtag includes sign describing the legal status and activity field of businesses, e.g. #group, #legalfirm, #companylimited, #jointstockcompany, etc.;
  • Hashtag includes sign which has been widely used, e.g. #international, #global, #national, etc.
After choosing an appropriate Hashtag which meets the requirements on distinctiveness, the next step is conducting a search to learn if there is any prior pending/registered mark to which the searched mark (Hashtag) is considered as confusingly similar. It is also called the distinguishability of proposed mark/Hashtag. Vietthink is confident to provide/support the client with this service, please contact us for advice in details.
For conclusion, it is the writer’s view point that a Hashtag can be registrable as a trademark in Vietnam if it is (i) considered as distinctiveness and (ii) not confusingly similar to any prior filed/registered mark. The protection of IP rights of Hashtag is very important. It not only confirms the business strategy vision of enterprises in respect of their trademark and IP Assets but also protects the owner’s rights in case of future dispute (if any).

Van Anh – Vietthink Law Firm

Last updated: 02/28/2017
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