WHO HAS THE RIGHT TO REQUEST THE INVALIDATION OF THE INDUSTRIAL PROPERTY PROTECTION TITLES?

Legal basic:

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

Decree 122/2010/ND-CP amending and supplementing Decree no. 103/2006/ND - CP guidelines for Implementation of a number of Articles of Law on Intellectual Property with respect to Industrial Property;

Circular 16/2016/TT-BKHCN;

Circular 263/2016/TT-BTC.

In what cases is an industrial property protection title terminated?

Protection titles shall include an invention patent, utility solution patent, industrial design patent, certificate of registered design of semi-conducting closed circuits, certificate of registered trademark and certificate of registered geographical indication.

According to Article 95.1 Consolidated 07 stipulates cases where a protection title can be required to be terminated including:

The owner fails to pay the stipulated validity maintenance or extension fee;

The owner declares relinquishment of the industrial property rights;

The owner no longer exists, or the owner of a certificate of registered trademark is no longer engaged in business activities and does not have a lawful heir;

The trademark has not been used by its owner or the licensee of the owner without justifiable reason for five (5) consecutive years prior to a request for termination of validity, except where use is commenced or resumed at least three (3) months before the request for termination;

The owner of a certificate of registered collective trademark fails to supervise or ineffectively supervises the implementation of the regulations on use of the collective trademark;

The owner of a certificate of registered certification trademark violates the regulations on use of the certification trademark or fails to supervise or ineffectively supervises the implementation of such regulations;

The geographical conditions decisive to reputation, quality or special characteristics of products bearing a geographical indication have changed resulting in the loss of such reputation, quality or characteristics of products.

Who has the right to request the invalidation of a protection title?

All organizations or individuals have the right to request the state management agency (NOIP) in charge of industrial property rights to invalidate the protection title, provided that such applicant pays fees and charges as prescribed.

The statute of limitations for exercising the right to request invalidation of a protection title shall be the whole term of protection of the protection title. For trademarks, such statute of limitations shall be five (5) years from the grant date, except where the protection title was granted as a result of dishonesty of the applicant.

Procedures for handling applications for invalidation of protection titles.

- Applications:

An Application form to request termination or invalidation of the protection title (as Form 04-CDHB provided in the Appendix C of Circular 16/2016/TT-BKHCN);

Evidences (if any);

A Power of attorney (in case the representative submits the application on behalf of);

An Explanation (specifying the serial number of titles, reasons, legal grounds, contents of the request for termination or invalidation of part or all of the protection title) and relevant documents specified in Points 7.2, 22.2 and 22.3 of Circular 16/2016/TT-BKHCN;

A copy of the Receipt (in case fees and charges are paid by post or directly to the NOIP's account).

- Time and Procedure:

Step 1: Submitting the Applications

Submit the Applications directly at the Department of receiving or returning results; or send by post to the headquarters of the National Office of Intellectual Property or the Representative office of the National Office of Intellectual Property.

The Reception addresses:

National Office of Intellectual Property: 384-386, Nguyen Trai Street, Thanh Xuan District, Hanoi.

Representative office of the National Office of Intellectual Property in Da Nang City: 3rd floor, 135 Minh Mang Street, Khue My Ward, Ngu Hanh Son District, Da Nang.

Representative office of the National Office of Intellectual Property in Ho Chi Minh City: 7th Floor, Ha Phan Building, 17, 17A, 19 Ton That Tung Street, Pham Ngu Lao Ward, District 1, HCMC.

*Note: during the time when the Covid-19 pandemic is complicated in HCMC and southern provinces:

(*) For online submissions: The applicant carries out the application procedure at the National Office of Intellectual Property's online public service portal at the website http://dvctt.noip.gov.vn:8888/HomePage.do, then send the payment order of the bank together with the confirmation of online application to the NOIP.

(**) For applications submitted by post: The applicant couriers the application, official letters, other documents and payment order to the head office of NOIP.

Step 2: Application Processing

After receiving the Application, the NOIP will classify and processing dossier based on 02 cases:

Case 1: The owner of a protection title requests to terminate his/her title

10 working days from the date of receipt of the Application.

Case 2: The protection title is requested to be invalidated by a third party

Within 01 month from the date of receipt of the Application, the NOIP shall notify in writing of the third party's opinions to the protection title holder, setting the time limit for the protection title holder's response to be 2 months from the date of notification.

The NOIP can organize a direct exchange between a third party and the holder of a protection title

03 months from the end of 02 months mentioned above, if the protection title holder has no opinion or from the date of receiving the opinion of the diploma holder, NOIP shall issue a notice of the result of application processing. (This time limit may be extended for a maximum of 03 months if the protection title holder expressing his/her dissenting opinion on the applicant’s opinion makes a request for termination or invalidation of the protection title)

What types of expenses are required to invalidate a protection title?

According to Circular 263/2016/TT-BTC Organizations and individuals requesting invalidation of protection titles must pay the fees and charges for assessment of requests and registration fee and fees for publication of decisions on invalidation of protection titles.

Fee for assessment of the request for invalidation of protection title: VND180,000.

Fee for registration of Decision to terminate the validity of the protection title: VND120,000.

Fee for publication of Decision to terminate the validity of the protection title: VND120,000.

Fee for requesting for termination of validity of protection title: VND50,000 (each object).

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