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INDUSTRIAL DESIGN (ID) DEFINITION
Industrial design means a specific appearance of a product embodied by three-dimensional configurations, lines, colors, or a combination of these elements.
GENERAL REQUIREMENT FOR ID ELIGIBLE FOR PROTECTION
An industrial design shall be eligible for protection if it meets the following conditions:
Industrial design means a specific appearance of a product embodied by three-dimensional configurations, lines, colors, or a combination of these elements.
GENERAL REQUIREMENT FOR ID ELIGIBLE FOR PROTECTION
An industrial design shall be eligible for protection if it meets the following conditions:
- To be novel;
- To be creative;
- To be susceptible of industrial application.
SUBJECT MATTERS NOT PROTECTED AS ID
The following subject matters shall not be protected as industrial designs:
- Appearance of a product that is dictated by its technical features of the product;
- Appearance of a civil or an industrial construction work;
- Appearance of a product that is invisible during use of the product;
- Objects contrary to social ethics and public order, harmful to national defense and security.
THE RIGHT TO REGISTRATION OF ID
1. The following organizations and individuals shall have the right to registration of an invention, industrial design and layout-design:
- The authors who have created the invention, industrial design or layout design by his or her own efforts and expenses; or
- The organizations or individuals who have invested funds and material facilities to the authors in the form of a job assignment or job hiring unless otherwise agreed by the parties and such agreements are not contrary to paragraph 2 of this Article.
2. The Government shall provide for the right to registration of inventions, industrial designs and layout-designs created by using funds and material and technical facilities from the State budget.
3. In case more than one organizations or individuals have jointly created or invested in the creation of an invention, industrial design or layout-design, those organizations or individuals shall all have the right to registration and such right shall only be exercised with their consensus.
4. A person who has the right to registration as provided in this Article may assign that right to other organizations or individuals in the form of a written contract, passing by inheritance in accordance with the law, even when a registration application has been filed.
PROTECTION TITLE
1. Validity of the Protection Titles
- Protection Titles shall record the owners of inventions, industrial designs, and the authors of inventions, industrial designs, the subject matter, scope and term of protection.
- Protection Titles have effect throughout territory of Vietnam.
- ID Protection Titles shall have validity beginning on the grant date and expiring at the end of 20 years as from the filing date.
- An ID Protection Title is valid within 05 years from the date of filing the application. It can be renewed for 2 consecutive times for 5 years each time. In case an industrial design has many variations, the patent may be extended for all or some of the variations, in which there must be a basic variant.
- In order to be extended the validity of the ID Protection Title, within 06 months before the expiration of the validity period, the holder must submit a request for renewal of validity. The application for renewal may be submitted late, but no later than 06 months from the date of expiration and the holder must pay an additional late renewal fee.
2. Protection Titles duplicate & re-issuance
- Protection Titles duplicate is made in case the industrial property rights are jointly owned, the Protection Titles is granted to the first owner in the list, other joint owners can request to issue duplicates and must pay a service fee for the issuance of copies.
- Protection Titles re-issuance is made in case the original copy is lost damaged, torn, dirty, faded to the point of unusable, disassembled, and unable to keep the seal.
3. Protection Titles amendment
Protection Titles amendment is made when there is a change in information about the name/address of the Protection Titles owner; change information about the author's name and nationality; change of owner of the Protection Titles (transfer of ownership due to inheritance, inheritance, merger, division, consolidation...).
Request to record change of IP representative organization. Request to narrow the protection scope: reduce one or several independent claims or dependent claim in the protection scope.
If a narrowing of the scope of protection is requested, a re-examination must be carried out. Time limit for re-examination of inventions is not exceeding 12 months. In complicated cases, the time limit for appraisal must be extended; however, it must not exceed the time limit for the first appraisal.
4. Assignment of industrial property rights
Assignment of an industrial property right means the transfer of ownership right by the industrial property owner to another organization or individual. The assignment of an industrial property right shall be conducted in the form of written contract. The assignment contract is only valid when it is registered at the NOIP.
5. Licensing of industrial property objects
Licensing of an industrial property object means the permission of the industrial property owner given to another organization or individual to use the industrial property object within the scope of the owner’s use right.
The licensing of an industrial property object shall be conducted in the form of written contract. The licensing contract of industrial property object shall be effective as agreed by the parties, but shall only be effective to a third party upon registration with NOIP.
TERMINATION OF VALIDITY & CANCELLATION OF PROTECTION TITLES
1. Rights to request of termination and cancellation
Any organizations or individuals shall have the right to request the State administrative authority of IPR to terminate the validity and to invalidate a Protection Title provided that fees and charges shall be paid.
2. Termination of validity of Protection Titles
2.1. The validity of a Protection Title shall be terminated in the following cases:
Protection Titles amendment is made when there is a change in information about the name/address of the Protection Titles owner; change information about the author's name and nationality; change of owner of the Protection Titles (transfer of ownership due to inheritance, inheritance, merger, division, consolidation...).
Request to record change of IP representative organization. Request to narrow the protection scope: reduce one or several independent claims or dependent claim in the protection scope.
If a narrowing of the scope of protection is requested, a re-examination must be carried out. Time limit for re-examination of inventions is not exceeding 12 months. In complicated cases, the time limit for appraisal must be extended; however, it must not exceed the time limit for the first appraisal.
4. Assignment of industrial property rights
Assignment of an industrial property right means the transfer of ownership right by the industrial property owner to another organization or individual. The assignment of an industrial property right shall be conducted in the form of written contract. The assignment contract is only valid when it is registered at the NOIP.
5. Licensing of industrial property objects
Licensing of an industrial property object means the permission of the industrial property owner given to another organization or individual to use the industrial property object within the scope of the owner’s use right.
The licensing of an industrial property object shall be conducted in the form of written contract. The licensing contract of industrial property object shall be effective as agreed by the parties, but shall only be effective to a third party upon registration with NOIP.
TERMINATION OF VALIDITY & CANCELLATION OF PROTECTION TITLES
1. Rights to request of termination and cancellation
Any organizations or individuals shall have the right to request the State administrative authority of IPR to terminate the validity and to invalidate a Protection Title provided that fees and charges shall be paid.
2. Termination of validity of Protection Titles
2.1. The validity of a Protection Title shall be terminated in the following cases:
- Its owner has not paid the due fees for the maintenance or renewal as prescribed;
- Its owner has declared to relinquish the rights conferred by the Protection Title;
- Its owner has no longer existed or the owner of a Mark registration Certificate has no longer engaged in business without a lawful successor;
2.2. Where the owner of a Protection Title fails to pay maintenance fees before the prescribed time limit, upon the expiry of such time limit, validity of the Protection Title shall ex-officio terminates from the first day of the year for which the annual fees have not been paid and the State administrative authority of industrial property rights shall record such termination in the National Register of Industrial Property and publish it in the Industrial Property Official Gazette.
2.3. Where the owner of a Protection Title has declared to relinquish industrial property rights as provided for in subparagraph b of paragraph 1 of this Article, the State administrative authority of industrial property shall decide to terminate the validity of the Protection Title from the date of receipt of the owner’s declaration;
2.4. Any organizations or individuals shall have the right to request the State administrative authority of industrial property rights to terminate the validity of a Protection Title in cases provided for in subparagraphs c, d, e and g of paragraph 2 of this Article, provided that fees and charges shall be paid.
Based on the result of the examination of request for termination of validity of a Protection Title and interested parties’ opinions, the State administrative authority of industrial property rights shall make either a decision or a notice of refusal to terminate the validity of the Protection Title.
2.5. Provisions in paragraphs 1, 3 and 4 of this Article shall also be applied to the termination of validity of international registrations in respect of marks.
3. Invalidation of Protection Titles
3.1. A Protection Title shall be entirely invalidated in the following cases:
2.3. Where the owner of a Protection Title has declared to relinquish industrial property rights as provided for in subparagraph b of paragraph 1 of this Article, the State administrative authority of industrial property shall decide to terminate the validity of the Protection Title from the date of receipt of the owner’s declaration;
2.4. Any organizations or individuals shall have the right to request the State administrative authority of industrial property rights to terminate the validity of a Protection Title in cases provided for in subparagraphs c, d, e and g of paragraph 2 of this Article, provided that fees and charges shall be paid.
Based on the result of the examination of request for termination of validity of a Protection Title and interested parties’ opinions, the State administrative authority of industrial property rights shall make either a decision or a notice of refusal to terminate the validity of the Protection Title.
2.5. Provisions in paragraphs 1, 3 and 4 of this Article shall also be applied to the termination of validity of international registrations in respect of marks.
3. Invalidation of Protection Titles
3.1. A Protection Title shall be entirely invalidated in the following cases:
- The applicant for registration neither has right to registration nor has been assigned such right (with regard to inventions, industrial designs, layout-designs and marks);
- The subject matter of industrial property failed to satisfy the protection conditions at the grant date of the Protection Title.
3.2. A Protection Title shall be partly invalidated if that part failed to satisfy the protection conditions.
3.3. Any organizations or individuals shall have the right to request the State administrative authority of industrial property rights to invalidate a Protection Title in cases provided for in paragraphs 1 and 2 of this Article, provided that fees shall be paid.
The time period for making request for invalidation of a Protection Title shall be its whole term of protection. With regard to marks, such time limit shall be 5 years as from the grant date, except for the case where the Protection Title has been granted due to the applicant’s dishonesty.
3.4. Based on the result of the examination of request for invalidation of a Protection Title and interested parties’ opinions, the State administrative authority of industrial property rights shall make either a decision or a notice of refusal to entirely or partly invalidate the Protection Title.
3.5. Provisions in paragraphs 1, 2, 3 and 4 of this Article shall also be applied to the invalidation of international registrations with regard to the marks.
4. Procedures
The process of handling application for invalidation and cancellation of protection title is as follows:
In case the request for termination or invalidation of a protection title is made by a third party, the NOIP shall notify in writing the opinion of the third party to the protection title holder, specifying the time limit of 02 months from the date of notification for the protection title holder to give opinions.
On the basis of opinions of the parties, the NOIP shall issue a decision to terminate or cancel part or the whole of the validity of the protection title or to notify the refusal to terminate or cancel the protection title validity as prescribed in the IP Law.
5. Appeal
If disagreeing with the NOIP's decision on handling the request for termination or invalidation of a protection title, the required party or related party has the right to appeal about the decision in accordance with regulations.
6. Publication
The decision on termination or cancellation of validity of a protection title shall be published in the Industrial Property Official Gazette and recorded in the National Register of Industrial Property within two months from the date of signing the decision.
APPEAL
1. Appeal rights
Organizations and individuals, who have rights and interests related to the decision or notice issued by NOIP on the processing of the application, have the right to appeal or initiate a lawsuit to the Court in accordance with the provisions of the IP Law and relevant laws.
2. Prescriptive period of appeal
The first appeal shall be made within ninety days from the date the complainant receives or learns of the decision or notice on the handling of the industrial property application;
The second appeal is thirty days from the expiration of the time limit for settling the first-time complaint that is not resolved, or from the date the complainant receives or learns the decision of the first-time complaint settlement.
3. Appeal procedure
If the time limit for appeal settlement of the level directly issuing decisions or notices related to industrial property expires (first time appeal) but the complaint is not resolved or if you disagree with the decision to settle the appeal, the complainant and the person with direct rights and interests related to that decision has the right to complain to the Minister of Science and Technology (for the second time) or initiate a lawsuit at court. If disagreeing with the complaint settlement decision of the Minister of Science and Technology, the complainant and the person with direct rights and interests related to that decision may initiate a lawsuit at court.
4. Appeal document
The appeal contents must be presented in written document, stating clearly the full name and address of the complainant; number, signing date, content of the complained notice or decision; complaint content, arguments and evidence to prove the complaint; specific request for correction or cancellation of the relevant notice or decision.
5. Appeal filing
3.3. Any organizations or individuals shall have the right to request the State administrative authority of industrial property rights to invalidate a Protection Title in cases provided for in paragraphs 1 and 2 of this Article, provided that fees shall be paid.
The time period for making request for invalidation of a Protection Title shall be its whole term of protection. With regard to marks, such time limit shall be 5 years as from the grant date, except for the case where the Protection Title has been granted due to the applicant’s dishonesty.
3.4. Based on the result of the examination of request for invalidation of a Protection Title and interested parties’ opinions, the State administrative authority of industrial property rights shall make either a decision or a notice of refusal to entirely or partly invalidate the Protection Title.
3.5. Provisions in paragraphs 1, 2, 3 and 4 of this Article shall also be applied to the invalidation of international registrations with regard to the marks.
4. Procedures
The process of handling application for invalidation and cancellation of protection title is as follows:
In case the request for termination or invalidation of a protection title is made by a third party, the NOIP shall notify in writing the opinion of the third party to the protection title holder, specifying the time limit of 02 months from the date of notification for the protection title holder to give opinions.
On the basis of opinions of the parties, the NOIP shall issue a decision to terminate or cancel part or the whole of the validity of the protection title or to notify the refusal to terminate or cancel the protection title validity as prescribed in the IP Law.
5. Appeal
If disagreeing with the NOIP's decision on handling the request for termination or invalidation of a protection title, the required party or related party has the right to appeal about the decision in accordance with regulations.
6. Publication
The decision on termination or cancellation of validity of a protection title shall be published in the Industrial Property Official Gazette and recorded in the National Register of Industrial Property within two months from the date of signing the decision.
APPEAL
1. Appeal rights
Organizations and individuals, who have rights and interests related to the decision or notice issued by NOIP on the processing of the application, have the right to appeal or initiate a lawsuit to the Court in accordance with the provisions of the IP Law and relevant laws.
2. Prescriptive period of appeal
The first appeal shall be made within ninety days from the date the complainant receives or learns of the decision or notice on the handling of the industrial property application;
The second appeal is thirty days from the expiration of the time limit for settling the first-time complaint that is not resolved, or from the date the complainant receives or learns the decision of the first-time complaint settlement.
3. Appeal procedure
If the time limit for appeal settlement of the level directly issuing decisions or notices related to industrial property expires (first time appeal) but the complaint is not resolved or if you disagree with the decision to settle the appeal, the complainant and the person with direct rights and interests related to that decision has the right to complain to the Minister of Science and Technology (for the second time) or initiate a lawsuit at court. If disagreeing with the complaint settlement decision of the Minister of Science and Technology, the complainant and the person with direct rights and interests related to that decision may initiate a lawsuit at court.
4. Appeal document
The appeal contents must be presented in written document, stating clearly the full name and address of the complainant; number, signing date, content of the complained notice or decision; complaint content, arguments and evidence to prove the complaint; specific request for correction or cancellation of the relevant notice or decision.
5. Appeal filing
- The appeal can be filed via IP representatives, or directly at NOIP office, or NOIP representative office in HCM City, Danang City.
- By mail.
6. Appeal settlement
6.1. Appeal handling
6.1. Appeal handling
- Within 10 days from the date of receipt of the appeal, the authority person to settle the appeal must examine the application according to the requirements on the form and issue a written notice to the complainant about the fact that the appeal is valid and accepted or not, stating the date of acceptance or stating the reasons for not acceptance of the application.
- The appeal will not be accepted if they fall into one of the following cases:
(i) The complainant has no right to appeal;
(ii) Complaint filed outside the prescribed statute of limitations;
(iii) The complaint does not meet the specified requirements.
6.2. Decision of appeal settlement
(ii) Complaint filed outside the prescribed statute of limitations;
(iii) The complaint does not meet the specified requirements.
6.2. Decision of appeal settlement
- Based on arguments and evidences provided by the complainant and related parties, the authorized office must issue an appeal settlement decision within the time limit as prescribed by law on complaints.
- Before issuing the decision, the authorized office informs the complainant and the relevant party about the arguments and evidence of the other party used to settle the complaint as well as the conclusion of the appeal settlement.
6.3. Publication
The decision of appeal settlement shall be published in the IP Official Gazette within 2 months from the date of signing the decision.
The decision of appeal settlement shall be published in the IP Official Gazette within 2 months from the date of signing the decision.