A distinctively shaped fish-sauce bottle, a custom mooncake box, a cosmetics jar with an instantly recognizable curve — packaging is the product’s “face” on the shelf. But when a competitor copies your packaging, which tool protects you: a trademark or an industrial design? The two mechanisms differ fundamentally in conditions, duration, and enforcement — and they can be used in parallel. This article compares them under Vietnam’s Law on Intellectual Property (consolidated document 67/VBHN-VPQH, in force).
Short answer
- Industrial design: protects the outward appearance of packaging; conditions are novelty + creativity + industrial applicability (Articles 63–67); duration 5 + 5 + 5 = up to 15 years (Article 93(4)).
- Trademark: protects distinctive signs (logos, words, images — including three-dimensional packaging shapes if distinctive, Article 72); duration 10 years, renewable indefinitely (Article 93(6)).
- Parallel protection: one subject matter may simultaneously satisfy the conditions of multiple IP rights (Article 9g of Decree 65/2023, added by Decree 100/2026/ND-CP).
- Biggest trap: launching the packaging on the market before filing an industrial design application → loss of novelty (except the 6-month grace period, Article 65(4)).
Option 1: Protecting packaging as an industrial design
Conditions of protection (Articles 63–67)
An industrial design is the outward appearance of all or part of a product — including non-physical forms under the expanded definition in Article 4(13) — expressed in shapes, lines, colors, or combinations, visible during exploitation of the product’s utility. Protection requires three cumulative conditions (Articles 63–67):
- Novelty (Article 65): significantly different from industrial designs publicly disclosed — by use, written description, or any other means — domestically or abroad before the filing date (or priority date). 6-month grace period (Article 65(4)): novelty is not lost if the person entitled to register disclosed it and files within 6 months of disclosure.
- Creativity (Article 66): not easily creatable by a person of average knowledge in the relevant field.
- Industrial applicability (Article 67(1)): usable as a model for mass production by industrial or handicraft methods.
Excluded subject matter (Article 64)
- Outward appearance dictated by technical characteristics;
- Outward appearance of construction works;
- Appearance not visible during use of the product.
Duration: up to 15 years (Article 93(4))
An industrial design patent is valid from grant until the end of 5 years from the filing date, renewable twice consecutively, 5 years each time — up to 15 years, after which it falls into the public domain. Renewal requires fee payment (Article 94(2)).
Enforcement advantage
An industrial design confers absolute exclusivity over the appearance — infringement proceedings do not require proof of “likelihood of confusion” as in trademark disputes.
Option 2: Protecting packaging as a trademark (3D/shape mark)
Legal basis (Article 72)
A trademark is protectable if it is a visible sign in the form of letters, words, drawings, images, three-dimensional shapes, or combinations (Article 72(1)) — and is capable of distinguishing the owner’s goods/services from others’ (Article 72(2)). A distinctive packaging shape (uniquely shaped bottles or jars) can be registered as a three-dimensional mark if distinctiveness is proven. “Use of a trademark” includes affixing it to product packaging (Article 124(5)(a)).
The biggest hurdles for packaging
- Article 73(6): signs that are the inherent shape of the goods or dictated by technical characteristics → not protectable as trademarks.
- Article 74(2)(b): “the common shape of packaging or containers of goods that has been regularly used and widely recognized” → deemed incapable of distinguishing — unless distinctiveness has been acquired through use (“secondary meaning”: packaging used so long that consumers recognize the brand at a glance).
- Article 74(2)(n): signs identical or not significantly different from another person’s protected industrial design (earlier industrial design application) → incapable of distinguishing as a trademark.
Duration: 10 years, renewable indefinitely (Article 93(6))
A trademark registration certificate is valid from grant until the end of 10 years from the filing date, renewable many times consecutively, 10 years each time — theoretically indefinite.
Maintenance risk
A trademark not continuously used for 5 years or more → subject to termination of validity (Article 95(1)(d)); any person may request termination.
Quick comparison
| Criterion | Trademark | Industrial design |
|---|---|---|
| Subject matter on packaging | Distinctive signs (logo, words, images; 3D packaging if distinctive) | 3D outward appearance of the packaging |
| Core condition | Distinctiveness (novelty not required) | Absolute (worldwide) novelty + creativity |
| Risk of losing rights | No loss from prior disclosure | Public disclosure before filing → novelty lost (except 6-month grace) |
| Duration | 10 years, renewable indefinitely | 5+5+5 = up to 15 years |
| Maintenance duty | Continuous use (5 years of non-use → termination) | Timely renewal fee payment |
| Enforcement | Confusion must be proven (except well-known marks) | Exclusivity over appearance, no confusion needed |
| Procedure | Registration at the IP Office, substantive examination | Registration at the IP Office, substantive examination |
Practical strategy: parallel registration
The two mechanisms do not exclude each other. Under Article 9g of Decree 65/2023/ND-CP (added by Decree 100/2026/ND-CP, effective 1 April 2026), one subject matter may simultaneously satisfy the conditions of multiple IP rights; exercising the later right must not conflict with normal exploitation of the earlier right (proven with specific evidence). In practice, businesses often register in parallel: an industrial design locks the shape for the first 15 years + trademarks (logo, labels — and 3D packaging if distinctive enough) provide long-term protection.
Unfair competition angle: “packaging designs of goods, goods labels” are commercial indications (Article 130(2)) — copying packaging that causes confusion may be handled under Article 130 even without any registration.
Registration procedure (summary)
Both options are filed at the Intellectual Property Office of Vietnam, undergoing formality examination (1 month from filing — Article 119(1)) and substantive examination (5 months from publication — Article 119(2)(b), amended by Law 131/2025; previously 9 months for trademarks, 7 for industrial designs). A fast-track substantive examination mechanism exists: 3 months (Article 119(2a)).
Recommended sequence: (1) keep the packaging design confidential; (2) file the industrial design application before market launch (or within the 6-month grace period if already disclosed); (3) in parallel, file trademark applications for the logo/labels and — if the packaging is distinctive enough — a 3D mark.
Frequently asked questions
Can any unique packaging be registered as a 3D trademark?
No. It must overcome Article 74(2)(b) (common packaging shapes) and Article 74(2)(n) (conflict with another’s industrial design). A 3D mark registers only if inherently distinctive or having acquired distinctiveness through use.
The product has been sold for a year; can I still file an industrial design?
No — novelty is lost, unless the disclosure was made by the person entitled to register and the application is filed within 6 months of disclosure (Article 65(4)).
Can an industrial design be renewed forever?
No. Maximum 15 years (5+5+5). A trademark, by contrast, can be renewed without limit.
Nothing registered yet and a competitor copies my packaging — what can I do?
Consider action under Article 130 on unfair competition (copying commercial indications causing confusion) — but proof is much harder than with a granted title. Registering first remains the safest strategy.
Sources
- Law on Intellectual Property — consolidated document 67/VBHN-VPQH (issued 23 March 2026, consolidating up to Law 131/2025/QH15, effective 1 April 2026): Articles 4(13), 63–67, 72–74, 93, 95, 119, 124, 130; in force.
- Decree 65/2023/ND-CP, amended by Decree 100/2026/ND-CP (effective 1 April 2026): Article 9g; in force.
- Note: Circular 23/2023/TT-BKHCN expired on 1 April 2026 and was replaced by Circular 10/2026/TT-BKHCN.
Need intellectual property advisory support in Vietnam? Reach FLAT Law Firm via the Contact page.
Related articles
- Trademark Protection in Vietnam for Foreign Investors
- Trademark Registration in Vietnam for FDI Enterprises 2026: End-to-End Guide
The information in this article is general reference only, based on the laws in force at the time of writing (14 October 2026), and is not legal advice for any specific matter.
Transparency note: This article was drafted by FLAT Law Firm’s AI content production system based on the cited legal instruments. It has not been reviewed by a human lawyer.
