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F&B Franchising: Why Register Your Trademark Before Signing?

8 min read
Café and restaurant interior illustrating an article on F&B franchising and trademark registration

In F&B, the brand is the “soul” of a franchise: customers come for the name, the logo, the colours, the familiar feel. Yet many brand owners get one legal question wrong: can you sign a franchise agreement first and register the trademark later? Vietnamese law does not prohibit it — but it is a high-risk path. This article explains why trademark registration must come before the franchise agreement.

For the full picture of F&B franchise agreements in Vietnam (activity registration, mandatory clauses, industry-specific risks), see F&B Franchise Agreements in Vietnam: A Legal Handbook; for the detailed trademark registration process, see Trademark Registration in Vietnam.

1. Why the trademark is a constituent element of an F&B franchise

Article 284 of the Law on Commerce No. 36/2005/QH11 (Section 8) defines commercial franchising as the sale of goods or provision of services “associated with the franchisor’s trademarks, trade names, business know-how…”. In other words, the trademark is not an accessory to the franchise agreement — it is part of the very legal definition.

More importantly, Article 287(4) of the Law on Commerce obliges the franchisor to “ensure intellectual property rights over the subject matter stated in the franchise agreement” (unless otherwise agreed). This is the core legal argument of this article:

  • The franchisor warrants to the franchisee that it holds lawful rights in the franchised trademark;
  • Without a protection title (trademark registration certificate), the franchisor cannot prove it can deliver what the law requires;
  • If a dispute arises — e.g., a third party accuses the franchisee of infringing the mark — the franchisor faces breach-of-contract exposure and damages claims.

2. The biggest risk: the “first-to-file” principle

Article 90 of the Law on Intellectual Property establishes first-to-file: industrial property rights in a trademark belong to the earliest valid applicant. The practical consequence:

  • You sign franchise agreements, open 20 outlets under brand X, promote heavily — but have not filed a trademark application;
  • A third party spots the opportunity and files for mark X in Vietnam before you;
  • The third party obtains the certificate; your franchise network suddenly becomes the “infringer” — and your Article 287 warranty collapses.

Vietnamese law does not recognise “famous abroad” as an automatic shield (the only exception is a well-known mark under Article 75 of the IP Law — but the evidentiary bar is extremely high, and it cannot justify delaying registration).

3. Applicable legal framework (validity as of 14 October 2026)

  • Law on Commerce No. 36/2005/QH11 (Section 8, Articles 284–291): the general framework for commercial franchising — not replaced, fully in force.
  • Decree No. 35/2006/ND-CP (amended by Decree 120/2011/ND-CP and Decree 08/2018/ND-CP): conditions and registration of franchising activities.
    • Franchising from abroad into Vietnam: registration required with the Ministry of Industry and Trade — the dossier includes the IP protection title “where the licensed IP subject matter has been granted a title” (Article 19, as amended by Article 3(4) of Decree 120/2011); entry into the franchise register within 05 working days (Article 291 of the Law on Commerce, Article 18 of Decree 35/2006); if the dossier is incomplete, the authority has 02 working days to request supplementation.
    • Domestic franchising and franchising from Vietnam abroad: no registration — only a reporting regime with the provincial Department of Industry and Trade (Article 17a of Decree 35/2006, added by Article 3(2) of Decree 120/2011).
    • Franchisor eligibility: the business system to be franchised must have operated for at least 01 year (Article 5 of Decree 35/2006, amended by Article 8 of Decree 08/2018).
  • Law on Intellectual Property (current consolidated text): Article 6 (basis for rights), Article 90 (first-to-file), and the rules on registering IP licence contracts with the IP Office of Vietnam so the contract has erga omnes effect against third parties (check the article number in the latest consolidated text after Law 131/2025).
  • Law No. 131/2025/QH15 (effective 1 April 2026): substantive examination of trademark applications shortened from 09 to 05 months; publication from 02 to 01 month; a new 03-month expedited examination mechanism where conditions are met (conditions in Decree 100/2026/ND-CP — verify before relying on this timeline).

4. Recommended sequence: register first, sign later

Step 1 — Search and file the trademark in Vietnam. Search registrability with the IP Office of Vietnam (or WIPO databases), then file for the F&B-specific Nice classes: 29, 30 (foodstuffs), 32/33 (beverages), 43 (food and drink services), 35 (advertising, business management). For foreign brands entering Vietnam, filing in Vietnam is step one — before even looking for a franchisee.

Step 2 — Await the certificate. Under Law 131/2025: 05 months’ substantive examination, 01 month publication. Note: these are statutory time limits; in practice, certificates commonly take 12–18+ months — a practical estimate, not a statutory deadline. If signing is urgent, study the 03-month expedited examination (conditions in Decree 100/2026).

Step 3 — Sign the franchise agreement in writing (Article 285 of the Law on Commerce requires written form), stating the protection title number in the IP clause. In substance, franchising is a licence of the trademark, not an assignment — the IP licence contract should be registered with the IP Office so it is effective against third parties.

Step 4 — Register the franchising activity (for inbound franchising from abroad) with the Ministry of Industry and Trade within 05 working days; foreign documents must be consular-legalised. Domestic franchising: report to the Department of Industry and Trade.

5. Trademark registration costs (rates as of 14 October 2026 — re-check at filing)

  • Filing fee: VND 75,000/application — the rate in force until 31 December 2026 under Decision 2113/QD-BKHCN (14 April 2026) publishing IP administrative procedures; from 1 January 2027 the original VND 150,000/application (Circular 263/2016/TT-BTC) returns. The 50% online-filing discount under Circular 63/2023/TT-BTC expired on 31 December 2025.
  • Filing via VNeID: Circulars 64/2025/TT-BTC and 29/2026/TT-BTC provide fee exemptions/reductions for public services performed on the VNeID app (including industrial-property filing and grant fees), until 31 December 2026.
  • Substantive examination fee: VND 550,000/class (up to 6 goods/services; from the 7th: +VND 120,000); classification fee VND 100,000; publication fee VND 120,000; recordal fee VND 120,000; priority-claim examination VND 600,000/application (if any); grant fee VND 60,000 (first class) / VND 50,000 (each further class) until 31/12/2026; from 01/01/2027: VND 120,000/100,000.

Do not state “VND 150,000 is the only rate” or “VND 75,000 applies permanently” — both are wrong. Always state both rates with the 31/12/2026 and 01/01/2027 cut-offs.

6. Risks of signing first, registering later

  • Losing the right to a third party (first-to-file): the scenario in Section 2 — the largest and hardest-to-remedy loss.
  • Breach of the IP warranty (Article 287 of the Law on Commerce): the franchisee may seek termination and damages.
  • Administrative penalties: conducting franchising without meeting the conditions or without registering the activity — fines of VND 5,000,000–10,000,000 (individuals), doubled for organisations (Article 75 of Decree 98/2020/ND-CP; organisational fines are 02× individual fines).
  • Business know-how (recipes, F&B processes) cannot be registered — protect it with confidentiality clauses and NDAs signed with prospective franchisees from the negotiation stage.
  • Trade dress (packaging, store look-and-feel) may be protected via figurative marks or industrial designs — see our article on copying website/app interfaces for the multi-layer protection logic.

7. Practical points for foreign brands entering Vietnam

  • Use the 6-month priority right (Paris Convention): file at home first, then file in Vietnam within 6 months while keeping the home filing date; or use the Madrid System designating Vietnam.
  • Sign an NDA plus a no-filing covenant with prospective franchisees from day one.
  • File as soon as the market-entry decision is made; consider the 03-month expedited examination if signing is urgent (check Decree 100/2026 conditions).

8. FAQ

Q: Does the law prohibit signing a franchise agreement before the trademark certificate issues?
A: No — Article 19 of Decree 35/2006 only requires the title “where the licensed IP subject matter has been granted a title”. But “not prohibited” does not mean “safe”: all the risks in Section 6 remain.

Q: Does domestic franchising require registration with the Ministry of Industry and Trade?
A: No — only the reporting regime with the Department of Industry and Trade (Article 17a of Decree 35/2006). Registration applies to franchising from abroad into Vietnam.

Q: How long until the trademark certificate issues?
A: Statutory limits under Law 131/2025 are 05 months’ examination + 01 month publication; in practice, 12–18+ months is common. File early.

9. Sources

  • Law on Commerce No. 36/2005/QH11 (Articles 284, 285, 287, 291)
  • Decree No. 35/2006/ND-CP; Decree No. 120/2011/ND-CP; Decree No. 08/2018/ND-CP
  • Law on Intellectual Property (current consolidated text); Law No. 131/2025/QH15; Decree No. 100/2026/ND-CP
  • Circular No. 263/2016/TT-BTC; Circular No. 63/2023/TT-BTC; Decision No. 2113/QD-BKHCN (14/4/2026); Circular No. 64/2025/TT-BTC; Circular No. 29/2026/TT-BTC
  • Decree No. 98/2020/ND-CP (Article 75)

The information in this article is for reference only and is not legal advice. Laws and fee schedules may change; please check the original texts or consult a lawyer before applying.

This article was prepared by the FLAT Law Firm editorial team with the assistance of artificial intelligence (AI); legal statements were checked against original legal texts as of 14 October 2026.

Need advice on trademark registration and F&B franchise agreements? Contact FLAT Law Firm via our contact page.

For reference only, not legal advice. Content quality-checked by the AI Legal Council; not yet reviewed by a human lawyer.