PROCEDURES AND EXPENSE FOR REGISTRATION OF INDUSTRIAL DESIGNS – PART 1

Legal basis:

Consolidated document 07/VBHN-VPQH on Law on intellectual property in 2019 (“Consolidated 07”);

Decree 103/2006/NĐ-CP detailing and guiding the implementation of a number of articles of the law on intellectual property regarding industrial property issued by the Ministry of Science and Technology;

Circular 01/2007/TT-BKHCN guiding the implementation of Decree 103/2006/NĐ-CP;

Circular 16/2016/TT-BKHCN on amendments the Circular 01/2007/TT-BKHCN.

1. What is an industrial design?

Based on Article 4.13 of the Consolidated 07, the concept of an industrial design means the outward appearance of a product embodied in three-dimensional configuration, lines, colors, or a combination of such elements. Ex, the outside shape of the chair, the outer shape of the water bottle, etc.

Products bearing industrial designs are understood as objects, tools, equipment, vehicles, ... of all fields, with certain structure and function, independently produced and circulated, can be the whole structure of the product or part of the product. Ex, the Design of the entire motorcycle product or the design of some features of a motorcycle product (saddle, headlight, ...)

Industrial designs are the results of creative activities, requires material investment and intellectual labour, so they are protected by the State in the form of recognition and protection of intellectual property rights.

2. What is the registration of industrial design?

Industrial design registration is an administrative procedure carried out by National Office of Intellectual Property to recognize industrial design property rights.

The form of industrial design registration is recognizing the industrial design, industrial design owners and authors in the National Register of Industrial Designs and granting industrial design patents to industrial design owners.

Industrial designs are registered based on the results of consideration of the Industrial Design Application based on the current legal provisions on the form and content of the Application.

3. Why is it necessary to register an industrial design?

Industrial design registration is required for the following reasons:

• The rights of the industrial design owners arise only on the basis of an industrial design patents granted under registration procedures..

• During the term of industrial design protection (up to 15 years), the owner of the industrial design has the exclusive right to use, assign or transfer the right to use their industrial design, thereby offset the expense of material and intellectual investment and benefit from exploiting the fruits of their creation, and can be reinvested in creative activities.

During the term of industrial design protection, industrial design owners have the right to request competent state bodies to handle acts of infringing upon their industrial designs.

4. What are the conditions for an industrial design registration?

Pursuant to the specific provisions from Article 63 to Article 67 of the Consolidated 07, an industrial design shall be protected if the following conditions are met:

(i) The novelty of industrial design

An industrial design is considered novel if:

- Such industrial design is significantly different from industrial designs that have been publicly disclosed in the form of use, written description or any other form in the country or abroad before the filing date. or before the priority date if the industrial design application is entitled to priority;

- The industrial design has not been publicly disclosed, ie only a limited number of people know and are obliged to keep the industrial design secret.

(ii) The creativity of industrial design

An industrial design shall be deemed to be creative if the industrial design cannot be easily created by a person with average knowledge of the relevant field.

(iii) It is susceptible to industrial application

An industrial design shall be deemed to be susceptible to industrial application if it can be used as a model for mass manufacture of products with the outward appearance embodying such industrial design by industrial or handicraft methods.

5. Who is not protected in the name of an industrial design?

Based on Article 64 Consolidated 07, the following objects are not protected in the name of industrial designs:

• The outward appearance of a product which is necessarily due to the technical features of the product.

• The outward appearance of civil or industrial construction works.

• The shape of a product that is invisible during its use of the product.

• Objects contrary to social ethics and public order, harmful to national defense and security.

The above are some basic contents and knowledge that need to be grasped before proceeding with industrial design registration procedures. To better understand the procedure and the cost of the registration process, ADK Lawyers has a detailed article in part 2 (continued).

ADK & Co Vietnam Lawyers Law Firm