First to File, or the first-to-file principle, stands as one of the most critical legal pillars of the intellectual property protection system in Vietnam and the majority of nations worldwide as of 2026. In a fiercely competitive market, merely possessing a creative idea or a unique trademark is insufficient; legal ownership only truly belongs to the entity that is swifter in performing registration procedures with the competent state authorities. A delay of even a single day in establishing a priority date can result in the total loss of a brand to a competitor, causing immeasurable damage to financial standing and business reputation. This article is compiled by the expert team at Trần & Trần to provide an in-depth analysis of the nature, importance, and optimal response strategies regarding the first-to-file principle, assisting businesses in firmly protecting their intellectual property assets.
Legal Nature of the First to File Principle
In the field of industrial property, First to File is the principle stipulating that ownership rights for an industrial property object (typically trademarks, industrial designs, or patents) will be prioritized for the person who files the registration application earliest, regardless of who created or used that object first in actual practice.
Based on Article 90 of the Vietnam Intellectual Property Law, in cases where multiple applications from different people are filed to register trademarks that are identical or confusingly similar for identical or similar products or services, the protection certificate may only be granted to the valid application with the earliest priority date or filing date among those that meet the conditions for being granted a certificate.
This principle creates a clear and transparent legal system, helping state management agencies like the Intellectual Property Office of Vietnam easily determine the right holder based on archived dossier data. However, it also places immense pressure on businesses: they must register immediately when an idea is formed or when preparing to launch a product. The priority date in the dossier is the “life-or-death” milestone that determines a business’s position in the brand protection race.
Core Differences Between First to File and First to Use
To gain a comprehensive view, businesses must clearly distinguish between the two fundamental legal systems existing in parallel globally: First to File and First to Use.
The First to File Principle
This system is widely applied in Vietnam, China, Japan, the European Union (EU), and most Southeast Asian countries. The characteristic of this system is high legal stability. The protection certificate is the sole and strongest evidence to prove ownership. The advantage lies in clear administrative procedures, minimizing prolonged litigation to prove who used the mark first. However, the disadvantage is that it creates a loophole for trademark squatting, where individuals register famous foreign titles or those of competitors for profit.
The First to Use Principle
Conversely, countries such as the United States, Australia, Canada, and the United Kingdom prioritize the First to Use principle. Accordingly, ownership belongs to the first person to actually use the trademark in commercial activities. Filing an application is still important but is not the only factor determining ownership. This system better protects genuine creators but makes enforcement difficult because it requires an extremely complex and costly system of usage evidence (invoices, advertisements, flyers, etc.) when disputes occur.
Comparison Table of the Two Main Protection Principles
| Criteria | First to File | First to Use |
| Priority Subject | The earliest applicant. | The earliest actual user. |
| Certificate Value | The supreme basis for establishing rights. | Supplemental evidence of ownership. |
| Stability | High; fewer disputes over usage evidence. | Low; prone to priority right disputes. |
| Countries Applied | Vietnam, China, EU, Japan… | USA, Australia, Canada… |
| Primary Risk | Trademark Squatting. | Difficulty in proving asset usage history. |
Why Businesses Must Prioritize Immediate Application Filing
In 2026, when data and information are updated by the second, delaying the establishment of intellectual property rights is equivalent to putting the business in a passive position.
Preventing Trademark Squatting
Trademark squatting has become a global issue. Bad-faith actors constantly monitor market trends, rising brands, or foreign businesses preparing to enter Vietnam to file registration applications for these trademarks in advance. When the actual business wants to operate, they are forced to buy back the trademark at exorbitant prices or change their brand name entirely. Strictly applying the First to File principle is the only way for businesses to protect themselves against these trademark “poachers.”
Establishing Exclusive Rights and Competitive Positioning
Securing the earliest priority date gives a business the right to prohibit all third parties from using confusingly similar signs in the market. This is an extremely powerful competitive tool, helping the business maintain the uniqueness of its products and services. In marketing campaigns, owning a trademark for which an application has been filed also creates absolute trust for customers and business partners.
Optimizing Legal Costs and Time
a registration dossier has a much lower cost than hiring lawyers to pursue litigation to reclaim a brand or the cost of changing an entire identity system (packaging, signage, advertising) if someone else has already registered it. The First to File principle is the cheapest “insurance” for a business’s long-term development.
Exceptions and Supplemental Protection Mechanisms
Although the first-to-file principle is absolute in most cases, the law still provides narrow corridors to protect fairness and combat fraudulent acts.
Well-known Trademarks
This is the most important exception. A trademark considered well-known will be protected without the need for registration (Article 75 of the IP Law). If a competitor registers a trademark identical to a well-known trademark widely recognized in Vietnam, the owner of the well-known trademark has the right to request the cancellation of that certificate. However, proving a trademark is well-known requires an immense evidentiary system and is very difficult for small and medium-sized enterprises to achieve.
Registration in Bad Faith
In the latest legal amendments as of 2026, mechanisms against bad-faith filings have been tightened. If an entity files an application solely for the purpose of extortion, preventing a competitor’s market entry, or based on a prior relationship to misappropriate the trademark, the true owner can rely on “bad faith” to oppose the application or request cancellation. Experts at Trần & Trần frequently assist clients in collecting evidence to exploit this gap in complex disputes.
Priority Rights Under the Paris Convention
If a business has filed a trademark application in a country that is a member of the Paris Convention (e.g., the USA or Japan), the business has a 6-month period from that first filing date to file in Vietnam while still enjoying the original filing date as the priority date. This is a crucial strategy for multinational corporations when expanding into the Southeast Asian market.
Risks of Subjectivity Regarding the First to File Principle
Subjectivity in intellectual property registration often leads to chain reactions affecting a business’s survival.
Losing the Right to Use One’s Own Brand
An ironic but frequent reality is businesses being countersued for trademark infringement. This happens when a competitor files a registration application first and is granted a certificate. At that point, even if the business was the creator and first user, because they did not file, they become the lawbreaker on their own product.
Consequences for International Market Expansion
Many Vietnamese businesses, when exporting goods to Laos, Cambodia, or Myanmar, have been “blocked” right at the border because the trademark was already registered by local agents or competitors following the First to File principle. Reclaiming a trademark abroad is not only difficult due to language and law but also incurs massive costs. Therefore, the mindset of “register first, business later” must become the compass for exporting enterprises.
Intelligent Intellectual Property Rights Establishment Strategy
To optimize the advantages of the first-to-file principle, businesses need a systematic and decisive roadmap.
In-depth Search Before Filing
Filing an application blindly can result in a waste of time and money if the trademark is already duplicated. The role of industrial property representative organizations like Trần & Trần is extremely important in this stage. We utilize specialized data systems to evaluate protectability, thereby advising businesses on necessary adjustments to design or product categories before formal filing.
Broad Filing and Defensive Registration
Instead of only registering for the core product group, businesses should consider registering for related product/service groups or trademark variants to prevent competitors from registering similar signs in adjacent market segments. This strategy helps create a safe buffer zone around the main brand.
Maximizing International Priority Dates
For businesses with a global vision, closely monitoring the 6-month deadline under the Paris Convention is the key to maintaining the priority date in all target markets. Coordination between lawyers in Vietnam and international representatives (such as the Trần & Trần network in Laos, Cambodia, and Myanmar) will help this process proceed smoothly and accurately.
Intellectual Property Services at Trần & Trần
With a highly qualified and experienced staff in the field of intellectual property, we believe that Trần & Trần is among the leading intellectual property companies in Vietnam. Our company brings professionalism to our customers in registration services and the enforcement of intellectual property rights in Vietnam, Laos, Cambodia, and Myanmar.
Through our understanding of intellectual property law and many years of practical experience by our consultants, Trần & Trần ensures that the intellectual assets of our clients are protected in Vietnam and Southeast Asian countries. We understand that intellectual assets constitute a vital part of the total assets of any company, and we recognize that the registration, valuation, transfer, and enforcement of intellectual assets in unfamiliar environments can be a major challenge for corporations establishing branches and business operations abroad.
Therefore, our mission is to ensure your intellectual assets are fully protected by local laws. Our team of lawyers and consultants has the full capacity and experience to provide professional services in the protection and enforcement of all intellectual property rights for patents, trademarks, industrial designs, and copyrights in all sectors such as biotechnology, pharmaceuticals, telecommunications, electronics, electricity, and mechanical engineering, etc.
Conclusion
The First to File principle is a race against time but also a test of a business’s strategic mindset. In the 2026 digital economy, delays in establishing intellectual property rights can lead to irreversible failures. Understanding and flexibly applying the first-to-file principle not only helps a business protect existing assets but also creates barriers to prevent competitor encroachment, ensuring a sustainable development path.
I and the team of associates at Trần & Trần always understand the anxieties of businesses when facing complex legal procedures. With dedication and solid expertise accumulated since 2013, we pledge to accompany our Clients in every step, from searching and filing to holding the official protection certificate. Let us help you win the First to File race and fully protect the soul of your brand.
Contact Information: Trần & Trần Intellectual Property Co., Ltd.
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Email: ip@trantran.vn
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Address: Room 802, Talico Building, 22 Ho Giam Street, Dong Da District, Hanoi.
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Hotline: 024 3732 7466
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Office Hours: 8:00 AM – 18:00 PM (Monday to Friday).
