Vietnam Expands Legal Grounds and Relaxes the Evidentiary Standard for Proving “Bad Faith” in Trademark Filings under Circular 10/2026/TT-BKHCN

To better control the abuse of the first-to-file principle and the misappropriation of third-party brands in trademark filings before the Intellectual Property Office of Vietnam (VNIPO), Vietnam has changed the legal standard for determining “bad faith” under Circular No. 23/2023/TT-BKHCN (“Circular 23”) after more than two years of implementation. The evidentiary standard for proving “bad faith” under Circular 23, which had been considered very difficult to satisfy, has now not only been relaxed but also supplemented with a new legal ground under Circular No. 10/2026/TT-BKHCN (“Circular 10”), which amends Circular 23 and takes effect from 1 April 2026. Bross & Partners analyses below the key changes.

Why was it so difficult to prove “bad faith” under Circular 23?

Under Article 34.2 of Circular 23, “bad faith” was deemed to exist only when both of the following two conditions were satisfied:

(a) First, at the time of filing, the applicant knew or had grounds to know that the trademark applied for was identical with or indistinguishably similar to a trademark widely used in Vietnam, or a trademark well-known in another country, for identical or similar goods or services; and

(b) Second, the filing was made for the purpose of taking advantage of reputation, selling, licensing or transferring the application right, blocking market entry, or engaging in conduct contrary to honest commercial practices.

As to the first condition, the most difficult point was not proving similarity between the two marks. The real difficulty was proving that the applicant knew or had grounds to know of the earlier mark at the time of filing. If the applicant had no agency, distribution, negotiation, franchise, quotation or other commercial relationship with the true brand owner, producing and assessing evidence of the applicant’s subjective knowledge was extremely difficult.

There was a second difficulty within the same first condition: the requesting party also had to prove, directly or by inference, that the earlier mark was widely used in Vietnam or was well-known in another country — a very high evidentiary threshold.

Even if the first condition was satisfied, the requesting party still had to prove the second condition: that the filing was made for one of the improper purposes listed above, including taking advantage of the reputation and goodwill of that trademark for profit; primarily selling, licensing or transferring the application right to the true brand owner; preventing the true brand owner from entering the market in order to restrict competition; or engaging in conduct contrary to honest commercial practices.

Proving the second condition was also difficult because it required establishing the applicant’s state of mind at the time of filing. In practice, direct evidence such as an offer to sell the mark back, an extortionate email, a reverse licensing proposal, or a public act of blocking the true brand owner is rare.

Circular 10 adds a new ground against “bad faith” and relaxes the evidentiary standard

Article 112.3 of Circular 10 separates “bad faith” into two independent legal routes. Point (a) introduces a new ground concerning large-scale trademark hoarding. Point (b) retains the cumulative logic of Article 34.2 of Circular 23, but eases the evidentiary burden relating to the earlier mark.

The first and most distinct change from Circular 23 is Article 112.3(a) of Circular 10, which for the first time provides a new and independent legal ground for determining “bad faith”. This applies where the applicant registers a large number of trademarks that are identical with or indistinguishably similar to trademarks being used by others in Vietnam for identical or similar goods or services, while such filings exceed the applicant’s normal business capacity and there is no evidence of a genuine intention to use those trademarks in production or business activities. In substance, this new ground shifts the focus from “what did the applicant think when filing?” to “does the applicant’s filing conduct resemble a genuine business activity?”

The second difference lies in the way the two-condition test for “bad faith” under Article 34.2 of Circular 23 has been restructured in Article 112.3(b) of Circular 10 into a cumulative set of conditions. In other words, Circular 10 does not completely abandon the logic of Article 34.2 of Circular 23; it changes the way that logic is expressed.

More specifically, at the time of filing, the misappropriated trademark must be identical with or indistinguishably similar to an earlier mark, where that earlier mark falls into one of the following two categories: (a) it has been recognized by relevant consumers in Vietnam as an indication of the commercial origin of identical or similar goods or services; or (b) it is a well-known trademark in another country. In addition, the filing must have been made for an improper purpose, such as taking advantage of reputation, selling, licensing, transferring, blocking market entry, or engaging in conduct contrary to honest commercial practices.

Accordingly, the most notable change takes place entirely at the first condition — namely, the condition relating to the earlier mark. Instead of requiring proof that the applicant knew or had grounds to know of a trademark widely used in Vietnam, or of a trademark well-known in another country, as under Circular 23, Article 112.3(b) of Circular 10 relaxes the evidentiary threshold by replacing the “widely used in Vietnam” standard with a lower and more practical standard: the earlier mark must have been recognized by relevant consumers in Vietnam as an indication of commercial origin.

Conclusion

Circular 10 does not turn every identical or similar trademark application into a “bad faith” filing. But it has a positive impact in making “bad faith” more capable of being proven in practice.

Circular 23 asked the main question: did the applicant know, and did the applicant have an improper purpose? Under Circular 10, the questions become broader: is the applicant conducting a genuine business, or hoarding trademarks? Has the earlier mark been recognized by relevant consumers in Vietnam as an indication of commercial origin? Is the evidence strong enough to prove that?

In trademark disputes, merely calling the other party a “bad faith” filer will not win the case if the allegation is not supported by evidence. A sound strategy for successfully opposing or cancelling a trademark should not rely only on “bad faith”. Depending on the facts, brand owners may still have several other legal grounds available, such as protectability requirements under Articles 72-74 of the IP Law, the first-to-file principle under Article 90.2, or the right to register under Article 87.

Bross & Partners – a Vietnam-based intellectual property law firm ranked Tier 1 by Legal 500 Asia Pacific, with extensive experience in IP litigation and cross-border enforcement.
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