Critical commentary on redundancy of article 74.2(l) – IP Law of Vietnam

1. Overview of Article 74.2(l)

Article 74.2(l) states that a trademark sign shall not be considered distinctive if it is identical or confusingly similar to a protected geographical indication (GI), where its use is likely to mislead consumers as to the geographical origin of goods.

However, this provision overlaps significantly with Article 74.2(d) (descriptive indications of origin) and Article 74.2(g) (conflict with prior rights).

2. Legislative Redundancy

Article 74.2(l) does not add any new legal effect. If a mark misleadingly refers to a GI, it can already be refused under Article 74.2(d). If it conflicts with an existing GI right, it falls under Article 74.2(g) or Article 129 on infringement.

3. International Comparison

Under TRIPS (Articles 22–24), GIs are protected by a separate regime. The EUIPO, USPTO, and JPO treat GI conflicts as relative grounds, not as absolute distinctiveness issues.

Vietnam’s approach—placing GI conflicts among absolute grounds—confuses two legal categories: distinctiveness (form) and prior rights conflict (substance).

4. Doctrinal Analysis

Article 74.2(l) is a legislative redundancy. It simply reiterates prohibitions already covered elsewhere, creating ambiguity and diluting conceptual coherence.

5. Reform recommendation

To enhance clarity and harmonize with TRIPS, Article 74.2(l) should be repealed or merged with Article 74.2(d). Conflicts with protected GIs should be handled as relative grounds under Article 74.2(g) or under enforcement provisions (Article 129).

This reform would remove duplication, strengthen doctrinal consistency, and bring Vietnamese IP law closer to international standards.

6. Conclusion

Article 74.2(l) reflects a well-intentioned but unnecessary provision. It aims to reinforce GI protection but ends up undermining the systematic coherence of trademark law. Its removal would simplify the law without weakening GI protection./.

(Pham & Associates)