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Frequently ask questions about industrial property

17/11/2016 - 02:38

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 subject matters of industrial property rights?

Subject matters of industrial property rights include inventions, industrial designs, layout-designs of semiconductor integrated circuits, trade secrets, marks, trade names and geographical indications.

 

3. What are the 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.

Frequently ask questions about industrial property

Frequently ask questions about industrial property

 

4. What are general requirements on industrial property registration applications?

- An industrial property registration application comprises the following documents:

+  A declaration for registration, made according to a set form;

+ Documents, samples and information identifying the industrial property subject matter registered for protection as specified in Articles 102 thru 106 of this Law;

+ Power of attorney, if the application is filed through a representative;

+ Documents evidencing the registration right, if such right is acquired by the applicant from another person;

+ Documents evidencing the priority right, if such right is claimed;

+ Vouchers of payment of fees and charges.

- Industrial property registration applications and papers for transaction between the applicants and the state management agency in charge of industrial property rights shall be made in Vietnamese, except for the following documents, which can be made in another language but shall be translated into Vietnamese at the request of the state management agency in charge of industrial property rights:

+ Power of attorney;

+ Documents evidencing the registration rights;

+ Documents evidencing the priority right;

+ Other documents supporting the applications.

- Documents evidencing the priority right in an industrial property registration application include:

-  A copy of first application(s) certified by the receiving office;

- Deed of assignment of priority right if such right is acquired from another person.

 

6. The requirement on the uniformity of industrial property registration applications?.

- Each industrial property registration application shall request the grant of only one protection title for a single industrial property subject matter, except for the cases specified in Clauses 2, 3 and 4 of this Article.

- Each registration application may request the grant of one invention patent or one utility solution patent for a group of inventions that are technically linked to form a single common inventive idea.

- Each registration application may request the grant of one industrial design patent for several industrial designs in the following cases:

+ Industrial designs of a set of products consist of numerous items expressing a single common inventive idea and used together or for a common purpose;

+ An industrial design is accompanied by one or more variants, i.e., variations of such industrial design that express a single common inventive idea and that are not significantly different from such industrial design.

- Each registration application may request the grant of one certificate of registered mark for one mark to be used for one or more different goods or services.

 

7. What are requirement about authorized representation in industrial property rights-related procedures?

The authorization for carrying out procedures related to the establishment, maintenance, prolongation, amendment, termination and invalidation of protection titles must be made in writing in the form of a power of attorney.

A power of attorney must have the following principal contents:

a/ Full name and address of the principal and the attorney;

b/ Scope of authorization;

c/ Valid term of authorization;

d/ Date of making the power of attorney;

e/ Signature and seal (if any) of the principal.

- A power of attorney without any valid term shall be considered indefinitely valid and shall have its validity terminated only when the principal so declares.

 

8. What are restrictions on assignment of industrial property rights?

 

- Industrial property right owners may only assign their rights within the scope of protection.

- Rights to geographical indications shall not be assigned.

- Rights to trade names shall only be assigned together with the transfer of the entire business establishments and business activities under such trade names.

- The assignment of the rights to marks must not cause confusion as to properties or origins of goods or services bearing such marks.

- Rights to marks shall only be assigned to organizations or individuals that satisfy conditions for persons having the right to register such marks.

 

9. What are the contents of industrial property right assignment contracts?

An industrial property right assignment contract must have the following principal contents:

- Full names and addresses of the assignor and the assignee;

- Assignment bases;

- Assignment price;

- Rights and obligations of the assignor and the assignee.

 

10. General provisions on licensing of industrial property objects.

- Licensing of an industrial property object means the permission by the owner of such industrial property object for another organization or individual to use the industrial property object within the scope of his/her use right.

- Licensing of industrial property objects must be established in the form of written contracts (hereinafter referred to as industrial property object license contracts).

 

11. What are the restrictions on licensing of industrial property objects?

- The right to use geographical indications or trade names must not be licensed.

- The right to use collective marks must not be licensed to organizations or individuals other than members of the owners of such collective marks.

- The licensee must not enter into a sub-license contract with a third party, unless it is so permitted  by the licensor.

- Mark licensees shall be obliged to indicate on goods and goods packages that such goods have been manufactured under mark license contracts.

- Invention licensees under exclusive contracts shall be obliged to use such inventions in the same manner as the invention owners according to the provisions of Clause 1, Article 136 of this Law.

 

12. What is types of industrial property object license contracts ?

 

Industrial property object license contracts shall be of the following types:

- Exclusive contract means a contract under which, within licensing scope and term, the licensee shall have an exclusive right to use the licensed industrial property object while the licensor may neither enter into any industrial property object license contract with any third party nor, without permission of the licensee, use such industrial property object;

- Non-exclusive contract means a contract under which, within licensing scope and term, the licensor shall still have the rights to use the industrial property object and to enter into non-exclusive industrial property object license contracts with others.

- Industrial property object sub-license contract means a contract under which the licensor is a licensee of the right to use an industrial property object under another contract.

 

12. Contents of industrial property object license contracts.

- An industrial property object license contract must have the following principal contents:

a/ Full names and addresses of the licensor and the licensee;

b/ Licensing   basing

 c/ Contract type;

d/ Licensing scope of, covering limitations on use right and territorial limitations;

 e/ Contract term;

f/ Licensing price;

g/ Rights and obligations of the licensor and the licensee.

 

- An industrial property object license contract must not have provisions which unreasonably restrict the right of the licensee, particularly the following provisions which do not derive from the rights of the licensor:

a/ Prohibiting the licensee to improve the industrial property object other than marks; compelling the licensee to transfer free of charge to the licensor improvements of the industrial property object made by the licensee or the right of industrial property registration or industrial property rights to such improvements;

b/ Directly or indirectly restricting the licensee to export goods produced or services provided under the industrial property object license contract to the territories where the licensor neither holds the respective industrial property rights nor has the exclusive right to import such goods;

c/ Compelling the licensee to buy all or a certain percentage of raw materials, components or equipment from the licensor or a third party designated by the licensor not for the purpose of ensuring the quality of goods produced or services provided by the licensee;

d/ Forbidding the licensee to complain about or initiate lawsuits with regard to the validity of the industrial property rights or the licensor’s right to license.

 

14. Dossiers for registration of contracts for transfer of industrial property rights. 

 

A dossier for registration of an industrial property object license contract or an industrial property right assignment contract shall comprise:                                            

- A declaration for registration, made according to a set form;

- The original or a valid copy of the contract;

- The original of the protection title, for case of industrial property right assignment;

-  Co-owners’ written consent, or a written explanation of the reason for disagreement of any co- owner with the right assignment where the industrial property rights are under joint ownership;

- Vouchers of payment of fees and charges;

- A power of attorney, if the dossier is filed through a representative.

 

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Luật Sư Tư Vấn Thương Hiệu

Adress: Số 9 Ngách 6A - Ngõ 6 - Phạm văn Đồng, Q.Cầu Giấy, TP. Hà Nội .

Phone: 1900.6110

Email: hanoi@newvisionlaw.com.vn.

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