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1.
Name of Vietnam Industrial Design Act and
any statute or code into which it may be incorporated? Date of promulgation and Effective Date
of the Act?
There is no specific industrial design act, but it is incorporated
into the following legal texts:
-
Part VI chapter 2 of Civil Code
of SRV adopted by the 9th National Congress on October
28th 1995, effected from July 1st , 1996 on Industrial Property Rights.
- Decree 63/CP passed by the Government on October 24th,1996,
revised and amended according to Decree 06/2001/ND-CP dated February 1st , 2001 on Industrial Property
- Circular 29/2003/TT-BKHCN promulgated by Ministry of
Science and Technology dated November 5th 2003 and came
into force on November 26th 2003 guiding the procedures
for acquisition of industrial property right with respect to
industrial design.
2.
Definition of Industrial Design under
Vietnam Law?
An
industrial design
is
the
outer appearance of a product represented
by
lines, form and colors, or the combinations of such elements,
that has new characteristics to the world and may serve as a
patern for the manufacture of industrial products or handicrafts.
3.
Protection criteria of Industrial Design
under
Vietnam Law?
An industrial design must be worldwide novel and served as a
pattern for manufacture of industrial or handicraft products. In
addition, industrial designs are required to possess some kind of
creativeness because the current rules exclude from patentability
those designs easily created by a person with ordinary skill in
the art.
Novelty
An
industrial design shall be deemed to be worldwide novel if (i) it
substantially differs from those designs described in the earlier
applications, (ii) it substantially differs from those designs
that have been published in Vietnam and abroad, and (iii) before
the priority date, it has not been disclosed in Vietnam and abroad
to such an extent that, based on such disclosure, any person with
ordinary skill in the art can effect the industrial design.
However, two designs shall not be considered to be substantially
different from each other if they differ only in their shaping
features that are not easily identified and remembered and such
features can not be used to distinguish the two designs as a
whole.
Serving as a pattern for manufacture of industrial or handicraft
products
To satisfy this requirement, the concerned
design must be capable of being used for mass-production of
products by industrial or handicraft methods. In absence of this
attribute, a work may be protected under copyright laws as an
artistic work.
4.
Does Vietnam industrial design law protect ornamental or
other non-functional features and/or functional feature of the
design?
External appearance of an article that is an embodiment of
ornamental or other non-functional features is patentable under
Vietnam industrial design law. External appearance ofan article
that is determined merely by its technical function is excluded
from protection as an industrial design. The design incorporating
both functional and non-functional features may be protected as
whole or only non-functional features.
5.
Subject matters excluded from protection
under Vietnam
Industrial Design Law?
The following subjects that shall not be protected as Industrial
Design under Vietnam law:
- External appearance of an article that can be easily made by a
person of intermediate skills in a corresponding field
- External appearance of an article that is determined merely by
its technical function
- External appearance of civil or industrial construction
facilities
- External appearance of an article that is not visible in the
course of usage
- Design of an article having only artistic value.
6.
Is the novelty requirements absolute or
relative?
The novelty requirements is absolute.
7.
What is the effect on validity of a public
disclosure of the design by the designer or his/her assignee of
the application prior to the filing date or priority date, where
appropriate. Is there any a grace period, if so, how long?
A public disclosure of the design by the designer or his/her
assignee prior filing date or priority date shall result in loss
of novelty and therefore such an industrial design shall not be
patentable. There is no grace period for remedy of the public
disclosure before the filing date by the designer or his /her
assignee.
8.
Who may file design
applications in Vietnam?
A design application may be filed by the
creator(s)/designor(s) or his/her (their) successor(s) in title or
any another person/company acquiring the right from the inventor(s)
to the invention, utility solution.
Two or more parties may apply
jointly.
Foreign applicants not resident
in Vietnam or without a legal representative or a real and
effective industrial or commercial establishment in Vietnam may
carry out the filing of application and related procedures only
through an empowered industrial property agent like AMBYS.
9.
Does the power of attorney from an
applicant to a patent agent need to be notarized or legalized?
No, the power attorney from an applicant to
a patent agent does not need to be notarized or legalized, but
simply signed by the applicant or its authorized representative.
10.
Does
the name of the designer(s) have to be declared in the industrial
design application?
Yes, the name, address and nationality of the designer(s) shall be
declared in the industrial design application.
11.
Can a single application containing a plurality of different
designs? If so, how many and what is the applicable criteria?
No, a single application can cover only one design for a
product/set of products, but may cover more than one alternative
of the design
Design alternatives are understood as designs of a product or a
set of products that differ from each other only in minor
respects.
Alternatives of a design can be filed in different applications,
provided in the later filed applications the indication that the
later filed applications are the alternatives of and filing
particulars of the prior filed application must be shown clearly.
Only one patent shall be granted to all alternatives of a design.
12.
When a Designt application will be published? What is the content
of publication?
Design applications will be published in the 2nd month from the
date of acceptance of the application as to form. Content of
publication of Design applications in the Industrial Property
Gazette of the NOIP shall encompass bibliographic data and
drawings or photos expressing the design nature.
13.
Is it possible to postpone the publication of the industrial
design application/registration? If so, for how long?
No provision to postpone the publication of industrial design
application/registration
14.
Is it possible to oppose Desin application
under
Vietnam Design Laws?
Opposition may be lodged with the NOIP by any third party during
substantive examination with respect to published design
applications. Opposition will be considered by the NOIP at the
same time with examination of the applications.
15.
Is there substantive examination of industrial design
applications?
Yes, the substantive examination of industrial design is conducted
for determining the patentability and scope of protection of the
design. The substantive examination shall be conducted with the
minimum source of information, namely:
- All pending design applications published by the NOIP having
priority date earlier than the priority date of the subject
application
- All pending design applications and patents published by other
Patent Offices all over the world within 25 years before priority
date of the subject application that have been in the NOIP's
archives
- Other information relating to design collected by and kept by
the NOIP
- In some necessary particular cases, substantive examination of
design can be conducted with larger than minimum source of
information as listed above.
16.
What is the maximum term of protection?
Are there annuities or renewal fees? If so, when are they due?
Maximum term of protection of Industrial Design is 15 years. No
annuities, but renewal fees that shall be paid simultaneously with
the filing of the renewal request within 6 months prior to or on
the 5th and 10th anniversaries of the filing date (due date).
Belated renewal is permissible within 6 months following the due
date subject to surcharge of 10% of the renewal fee per each
belated month.
17.
What is the scope of protection of a design registration?
The scope of design protection includes any design having a set of
main features that is identical to or is not substantially
different from the same of the protected design.
18.
Is an applied art design also protectable under the Vietnam
copyright law?
Yes.
19.
Is unregistered industrial design
protected under
Vietnam Design Law protect?
No. Unregistered industrial design may be protected under the
Copyright Law
20.
Is the right of prior user of industrial
design protected under
Vietnam design law?
Yes. If independent usage of an industrial design identical with
a design under a published industrial design application is taken
place prior to the filing date by any person or legal entity
(prior user), after the registration of this industrial design,
the prior user is entitled to continue using the industrial design
without extension and transferring the right to use to others
21.
What are the Rights and Obligations of
Design Owners?
A Design
owner shall be entitled to:
(i) exclusive use of the
patented design, including the right to license,
(ii) request any person
infringing his design rights to cease from the infringement and
ask for any damage suffered.
The design owner has certain obligations including:
- to pay remuneration to
the designer(s),
- to pay the renewal fee for
maintenance or renewal of the design patent, and
- to use or license the
patented design to a third party in the form of compulsory license
according to the decision of the competent State authority.
22.
What are designor's rights?
The author(s) of a industrial design shall have the moral and
material rights, namely:
(a) To have his or her or its name stated in the
certificate of protection and in the National Registration Book of
designs, as the author(s) and in other documents published in
relation to such objects:
(b) To receive remuneration from the design owner
(c) To request measures be taken, or to take legal
action, against infringement of his or her or their rights above.
The material rights and the rights to request measures to be taken
or to take legal action of the author of an industrial
design as above stated may be transferred to another person and/or
bequeathed in accordance with law.
23.
What is the act of Design infringement?
The following acts, committed without the consent from a
patent holder, shall constitute a patent infringement:
(i) manufacturing products using a patented design;
(ii) using, importing, advertising or circulating products
that have been manufactured using a patented design.
24.
Is there a compulsory license with respect
to Design Patent in
Vietnam?
Yes.
The Ministry of Science and Technology
(MOST) may grant a compulsory license in the following
circumstances:
The design patentee fails to use the
patented industrial design, or used but not compatible with the
socio-economic development of Vietnam,
without any justifiable reasons;
The person willing to use the industrial
design has tried by every means to negotiate with the patentee
with a reasonable price to enter a license but failed;
The use of the patented industrial design is
to serve the demands of national defense and security, prevention
and treatment of human disease or other urgent needs of the
society.
The licensee of a compulsory license shall
have to pay the patentee a certain amount of royalties as
specified in the decision of granting compulsory license from the
MOST.
25.
What is the ground for
Cancellation/invalidation of Design Patents?
Any third pay shall be entitled to file a request with the NOIP to
cancel a Design patent in whole or in part, based on the following
reasons:
- The patentee was not entitled to apply for the patent, nor
assigned the right to file the application for the patent from the
entitled person;
- The right to apply for the design patent belongs to a number of
natural or legal persons one of whom has not agreed to the filing;
- The design patent incorrectly states the designor(s) due to the
applicant's deliberate fault; or
- The design which has been granted the patent has not met the
protection criteria at the time of granting the patent
In case of cancellation, the rights conferred by the patent shall
be considered as not having been established.
26.
The time limit for
cancellation/invalidation of Design Patents?
5 years from the validity date of design patents. In case the
rights to the design patents have been established in bad faith,
the time limit is the whole duration of dseign patent protection.
27.
When is a Design Patent suspended?
The validity of a patent may be suspended if the patentee declares
in writing abandonment of the design patent or fails to pay the
prescribed renewal fee within the time limits as regulated.
When the design patent validity is suspended, the patent rights
will be terminated from suspension of the design patent.
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