# How rights arise — automatically or only on filing

Source: https://luatbanquyen.com/en/overview/how-rights-arise · Updated: 2026-08-17 · Reviewed: 2026-08-17

Two opposing principles live in one statute: copyright arises automatically, while industrial property runs strictly on first-to-file.

This is the single most confusing point in Vietnamese IP law, because two directly opposed principles sit inside the same statute.

## Copyright: automatic

Copyright arises when the work is created and **expressed in a material form**, regardless of content, quality, form, medium, language, or whether it has been published or registered.

Three practical consequences: drafts are protected too (there is no quality threshold); you can sue an infringer without ever having filed anything; and an unfixed idea is not protected at all — the plot in your head is not, the manuscript is.

This flows from the Berne Convention, which entered into force for Vietnam on 26 October 2004. Automatic protection is why a Vietnamese work is protected in France without any French formality.

## Industrial property: first to file

For patents, designs and trademarks the right only arises on grant. Where several people file for the same subject matter, the title goes to the **valid application with the earliest priority or filing date**.

The harsh consequence: whoever invented first but filed second loses. Vietnam does not apply a first-to-invent rule. A business trading under a brand for ten years without registering can find someone else has registered it and be forced to abandon the name it built.

This is why "file early" in industrial property is not a platitude but a literal description of how the law works.

## Three exceptions within industrial property

- **Trade secrets** arise once the statutory conditions are met — obtained by investment, undisclosed, commercially usable, and subject to reasonable protective measures.
- **Trade names** arise from lawful use, not registration.
- **Well-known marks** are protected on the basis of use and reputation rather than registration — but this is a narrow exception and proving well-known status is difficult in practice.

## Priority — buying time

The first-to-file rule is softened by the Paris Convention priority right. File first in one member state and file elsewhere within the window, and the later filing keeps the original date: **12 months** for patents and utility solutions, **6 months** for trademarks and designs. For patents, the PCT extends the decision point on individual countries to 30–31 months from priority — the key mechanism for holding your place while validating the market.

## Cited documents

- [Consolidated document 67/VBHN-VPQH — Law on Intellectual Property](/en/legal-documents/ip-law-consolidated) — In force

## Sources

- [Article 6 (how rights arise) and Article 90 (first-to-file principle) — Điều 6, Điều 90](https://thuvienphapluat.vn/van-ban/So-huu-tri-tue/Van-ban-hop-nhat-67-VBHN-VPQH-2026-Luat-So-huu-tri-tue-700846.aspx) (67/VBHN-VPQH)

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Reference material only; it does not replace legal advice on a specific matter.