A pending question  – How is LoC can be accepted by IPVN as evidence to exclude likelihood of confusion?

I. Current legal context

In Vietnam, the current IP Law 2022 and Circular No. 23/2023/TT-BKHCN[1] contain no explicit provisions regarding the acceptance of a Letter of Consent (LoC) during trademark examination. In practice, the IP Office of Vietnam (IPVN) often rejects LoCs as a sufficient basis to remove the likelihood of confusion.

II. International practice

Major trademark offices such as the USPTO, EUIPO, UKIPO, and IP Australia allow consideration of a LoC in certain circumstances, provided that actual use of the marks does not mislead or confuse consumers.

III. Proposed legal framework and acceptance criteria

Four key criteria for accepting LoCs between independent entities are proposed as follows:

(i). In cases where the signs are identical or nearly identical, but the goods/services are only similar, not identical;

(ii). The signs differ sufficiently to allow consumers to distinguish them, even if the goods/services are similar or identical;

(iii). The LoC must clearly stipulate usage measures that effectively prevent confusion (e.g., additional logos, colors, disclaimers, or distribution channel separation);

(iv). The LoC should include a termination or reassessment clause if actual confusion arises in the marketplace.

IV. Recommended risk-control mechanism

It is recommended that the IPVN consider LoCs as an auxiliary factor in assessing likelihood of confusion, while retaining authority to review or revoke their effect if actual confusion is proven.

V. Conclusion and policy orientation

Conditional acceptance of LoCs ensures flexibility in examination, aligns with international practice, and upholds both business autonomy and public interest protection.

Appendix: Sample loC clauses

A Letter of Consent may contain a number of clauses, but the below ones must be included:

(i) The Parties agree to use their respective trademarks in distinct trade channels and with clear visual differentiation.

(ii) Either Party may terminate this consent in writing if confusion is demonstrated in the market.

(iii) This consent shall not prevent the IP Office or any competent authority from intervening to protect the public interest.