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Frequently ask questions about industrial designs

15/11/2016 - 09:56

1.Definition.
Industrial property rights mean rights of organizations and individuals to inventions, industrial designs, layout-designs of semiconductor integrated circuits, trade secrets, marks, trade names and geographical indications they have created or own, and right to repression of unfair competition.


2. What are general conditions for industrial designs eligible for protection?


An industrial design shall be protected when it satisfies the following conditions:

Being new;
The conditions about “ being new” of industrial designs include: 
An industrial design shall be considered new if it significantly differs from other industrial designs that are already publicly disclosed through use or by means of written descriptions or in any other form, inside or outside the country, prior to the filing date or the priority date, as applicable, of the industrial design registration application.
Two industrial designs shall not be considered significantly different from each other if they are only different in appearance features which are not easily noticeable and memorable and which  cannot be used to distinguish these industrial designs as whole.

An industrial design shall be considered having not yet been publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret.

An industrial design shall not be considered having lost its novelty if it is published in the following cases, provided that the industrial design registration application is filed within 6 months from the  date of publication:

a/ It is published by another person without permission of the person having the right to register it defined in Article 86 of this Law;

b/ It is published in the form of a scientific presentation by the person having the right to register it defined in Article 86 of this Law;

Being creative;
The condition about “ being creative” of industrial design include: 
An industrial design shall be considered creative if, based on industrial designs already publicly disclosed through use or by means of written descriptions or in any other form, inside or outside the country, before the filing date or the priority date, as applicable, of the industrial design registration application, it cannot be easily created by a person with average knowledge in the art.

Being susceptible of industrial application.
The condition about “ being susceptible of industrial application” of industrial design included: 
An industrial design shall be considered susceptible of industrial application if it can be used as a model for mass manufacture of products with appearance embodying such industrial design by industrial or handicraft methods.

Subject matters not protected as industrial designs.
The following subject matters shall not be protected as industrial designs:

Appearance of a product, which is dictated by the technical features of the product;

Appearance of a civil or an industrial construction work;

Shape of a product, which is invisible during the use of the product.

Frequently ask questions about industrial designs

Frequently ask questions about industrial designs

 

3. Modes of filing registration applications for establishment of industrial property rights.

Vietnamese organizations and individuals, foreign individuals permanently residing in Vietnam and foreign organizations or individuals having production or business establishments in Vietnam shall  file applications for registration of establishment of industrial property rights either directly or through their lawful representatives in Vietnam.
Foreign individuals not permanently residing in Vietnam, foreign organizations or individuals having no production or business establishments in Vietnam shall file applications for registration of establishment of industrial property rights through their lawful representatives in Vietnam.

 

4. The right to register inventions, industrial designs and layout-designs.

The following organizations and individuals shall have the right to register inventions, industrial designs and layout-designs:

a/ Authors who have created inventions, industrial designs or layout-designs with their own efforts and expenses;

b/ Organizations or individuals who have supplied funds and material facilities to authors in the form of job assignment or hiring unless otherwise agreed by the involved parties whose agreements are not contrary to the provisions of Clause 2 of this Article.

The Government shall provide for the right to register inventions, industrial designs and layout- designs created by using material and technical facilities and funds from the state budget.

Where more than one organizations or individuals have jointly created or invested in the creation of an invention, industrial design or layout-design, these organizations or individuals shall all have the registration right, which shall only be exercised with their consensus.


5.Requirement documentaries on industrial design registration applications.

Documents identifying an industrial design registered for protection in an industrial design registration application include a description and a set of photos or drawings of such industrial design. The industrial design description consists of a section of description and a scope of protection of such industrial design.

The section of description of an industrial design must satisfy the following conditions:

a/ Fully disclosing all features expressing the nature of the industrial design and clearly identifying features which are new, different from the least different known industrial design, and consistent with the set of photos or drawings;

b/ Where the industrial design registration application consists of variants, the section of description must fully show these variants and clearly identify distinctions between the principal variant and other variants;

c/ Where the industrial design stated in the registration application is that of a set of products, the section of description must fully show features of each product of the set.

The scope of protection of industrial designs must clearly define features which need to be protected, including features which are new and different from similar known industrial designs.

The set of photos and drawings must fully define features of the industrial design.

 

6.How long does it normally take to obtain final registration?
It usually takes about 9 to 15 months from the filing date.


7.What is the term of a patent for industrial design?.
  The right provided by a patent for industrial design extends to all designs of the same kind of articles which are not essential different from the registered design.


8.Is it possible to cancel a patent for industrial design?

  yes. During the validity of a Patent for industrial design, a cancellation action may be filed by any third party at any time if it can be shown that: 
(i) the applicant does not have the right to file application for registration of the industrial design or;
(ii) the industrial design does not meet the prescribed criteria for protection at the time of filing.


9.What constitute infringement to a registered industrial design?.
The acts which constitute an infringement of a registered industrial design are: manufacture, sale, transportation, importation, and exportation, advertisement for sale of products showing the design which not essential different from the registered design.

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