For centuries, Eastern and Western philosophers have asked the question “what is art?” The concept strikes at our fundamental human understanding of beauty and utility, reason and emotion and art and craft. The differences between these concepts has always been a point of contention for audiences and artists alike.

Which brings us to another well-worn fact: where there is contention, there are lawyers. The “art vs utility” has strode its way into parliaments, trade meetings and courtrooms worldwide – and as Viet Nam vies for membership in the World Trade Organisation (WTO), Vietnamese lawyers are studying up.

So while Plato and Confucius may make unlikely required reading for this modern conundrum, law is certainly stumbling onto well-trodden philosophical territory. The question pivots on whether or not a piece of intellectual property can be classified as art (which would require a copyright) or as utility (which demands a trademark).

As it stands, both intellectual entities must be registered at different places. Trademarks are recorded by the National Office of Intellectual Property under the auspices of the Ministry of Science and Technology. Copyrights, meanwhile, are taken up by the Copyright Office of Viet Nam under the Ministry of Culture and Information.

The two offices highlight the prevailing perception of the differences between art and utility. But what of the grey area? What happens to those intellectual properties that could be classified as both – that elusive interface between art and utility?

Take corporate logos, for example. A well-designed and well-appointed corporate logo can play an important role in recruiting customers and conveying a professional public image. But a logo can mean different things to different companies. For some, a logo may seem more like a tool to be used for profit, whereas others may see it as a piece of art. So while the former merits a copyright, the latter takes a trademark. This becomes a problem if the logos for two different companies are similar but registered by different offices.

The obvious solution would be for firms to seek protection from both offices, thereby protecting themselves from would-be usurpers. But a comprehensive legal system protects firms and individuals in all eventualities and under any circumstance. The State would do well to reconcile these two offices in strict legal terms. Each ministry should pass clear and concurring Decrees stipulating the exact qualifications for trademarks and copyrights – and eliminating any potential confusion.

Most civil courts would tend to deal with such a dispute by deferring to the license that was registered first. Such a decision, while eminently logical, could still create tension. In Viet Nam, where many small businesses operate for years without seeking copyrights or trademarks for the logos or products, the date of registration for a piece of intellectual property does not always determine that property’s originality. In such an environment, the Ministry of Culture and Information and the Ministry of Science and Technology should come up with a more exclusive method of protecting intellectual property rights.- VNS