Trademark is a concept widely used in social life to personalize a specific type of goods or services to help consumers distinguish goods and services of the same type. Thereby, let consumers know about that product. In fact, there are many ways to distinguish different brands with many different bases and signs. However, each type of brand has certain similarities and differences. The following article shall analyze the differences between common marks, collective marks and certification marks.
1. Concepts
Firstly, common marks. A common mark is defined under Clause 16, Article 4 of the Law on Intellectual Property 2005 (“IP Law”) as follows: “A mark means any sign used to distinguish goods and/or services of different organizations or individuals”. Thus, a trademark may satisfy the following conditions: (i) Being a visible sign in the form of letters, words, drawings or images, including holograms, or a combination thereof, represented in one or more colors; (ii) Being affixed to products, goods and services; (iii) Being capable of distinguishing goods or services of the mark owner from those of other subjects.
Secondly, collective marks. According to Clause 17 Article 4 of the IP Law, a collective mark means a mark used to distinguish goods and/or services of members from those of non-members of an organization which is the owner of such mark. In general, we can understand that a collective mark is a mark of a group of organizations (cooperatives, corporations,…), in which the members may comply with the regulations set by such organizations (on geographical origin, raw materials; quality, production method,…) to have the right to use the mark. However, members of that organization can still have their own trademarks in addition to collective marks. For example: The collective mark of Thai Nguyen Tea by Thai Nguyen Provincial Farmers’ Association…
Thirdly, certification marks. Clause 18, Article 4 of IP Law defines that a certification mark means a mark which is authorized by its owner to be used by another organization or individual on the latter’s goods and/or services, for the purpose of certifying the origin, raw materials, materials, mode of manufacture of goods or manner of provision of services, quality, accuracy, safety or other characteristics of goods and/or services bearing the mark. For example, the trademark “Vietnamese high-quality goods” of the Association of High-Quality Vietnamese Goods Enterprises in Ho Chi Minh City.
2. Functions
Common trademark: The most basic function of a mark is to distinguish goods and services of the same type. Trademarks are always associated with products and goods, while circulating in the market, or attached to products and services when they are provided to customers, so that consumers can know that the product is a product or service provided by an individual/organization.
Collective marks: Collective marks help consumers distinguish the goods and services of members of the organization who are the lawful owners of the mark from those of other people who are not members of the organization.
Certification marks: Certification marks do not have the purpose of identifying the origin of goods or services and are not used to distinguish the goods and services of the mark owner from those of the same type. Certification marks have the purpose of certification to help consumers know that a product or service has met the standards set by the owner of that mark.
3. The Owner
Ordinary trademark: Clause 1 Article 121 of the IP Law provides that “Owners of inventions, industrial designs or layout-designs mean organizations or individuals that are granted by the competent agency protection titles for respective industrial property objects”. Any individual or organization can register a trademark for its goods or services if it satisfies the provisions of the IP Law on trademarks specified in Articles 72, 73 and Article 74.
Collective marks: Unlike common trademarks, the owner of a collective mark, the subject of registration, can only be an organization. The designation that the owner of collective mark is an organization in accordance with the function of the collective mark is used to distinguish the goods/services of a member of the owner of the collective mark from that of the collective mark and goods/services of members who are not members of that organization.
Nhãn hiệu chứng nhận: According to Clause 4 Article 87 of the IP Law, the right to register a certification mark belongs only to organizations with the function of controlling and certifying quality, properties, origin or other relevant criteria of goods or services shall have the right to register certification marks, provided that they are not engaged in production or trading of such goods or services; for place names and other titles indicating the geographical origin of local specialties of Vietnam, the registration must be permitted by a competent state agency.
4. Holders of use right to trademarks.
Common marks: Holders of use right to common mark are usually the owner of such mark and his/her licensee.
Collective marks: The holder of use right to collective mark is a legally established organization; includes many organizations and individuals whose members voluntarily join, operate independently of each other but obey the charter and general operating rules of the collective organization, which can be Associations, Co-operatives, Co-operatives Union, Corporations, etc. Members using the collective mark must obtain the consent of the collective organization and must comply with the general regulations. Compliance with these regulations is reflected in the quality of products and services that members use, which must meet the quality standards in the regulations.
Certification marks: Production and business entities using certification marks must be licensed by the owner of the certification mark, and may comply with the general provisions shown in the regulations on the use of the certification mark. These regulations require production and business entities to comply with throughout the production and business process. The observance of the provisions stated in the regulation is reflected in the quality of goods and services of production and business entities. Any subject has the right to use a certification mark, if it finds that its goods or services meet the standards and conditions set forth by the owner of the certification mark, it can request ownership of the certification mark grants the right to use the certification mark.
5. Transfer of trademark rights
First, transfer of the ownership. (i) A certification mark can only be transferred to an organization with a similar function. Those are organizations that do not directly produce and trade in goods and services, but are competent authorities, with the function of controlling and certifying the quality and characteristics of registered goods and services. (ii) The collective mark also only transfers the ownership of the mark to collective organizations consisting of many members operating independently but subject to the general regulations of the collective, but not to individual producing and trading goods.
Second, transfer of use right. A collective mark must not be transferred to an organization or individual that is not a member of that organization or collective. For a certification mark, the owner of the mark does not directly use the certification mark, but it is used by individuals or organizations that have appropriate criteria.
This is the article advising on “The differences among common marks, collective marks and certification mark” by Apra Law Firm. If you have any questions or concerns, please contact the hotline for further advice and support.
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