Amid increasingly fierce commercial competition, the external appearance of a product carries value that goes beyond mere aesthetics — it is a decisive factor in a product’s appeal and brand recognition on the market. As a result, establishing industrial property rights over a product’s design has become an essential need for businesses, allowing them to prevent copying and imitation by competitors. This article analyzes the concept of industrial designs, the conditions for protection under the Law on Intellectual Property, the entities entitled to register such rights, and the subject matter excluded from the scope of protection.

What is an industrial design?

Under Clause 13, Article 4 of the 2005 Law on Intellectual Property, an industrial design is understood as the external appearance of a product or of a component to be assembled into a complex product, expressed through shape, lines, colors, or a combination of these elements, and must be an appearance that can be observed during the normal use of the product or complex product.

From this definition, several core legal characteristics of an industrial design can be identified:

• The subject matter of protection is the external form of expression, not the technical structure or function of the product;
• The design must be tied to a specific product and capable of practical application in production; and
• The design must be observable to the naked eye during ordinary use, rather than consisting of details hidden inside the product. This is precisely what distinguishes an industrial design from an invention (which protects a technical solution) and from copyright in a work of applied art.

Conditions for industrial design protection

Under Article 63 of the Law on Intellectual Property, an industrial design may only be granted a protection title if it simultaneously satisfies three conditions: novelty, creativeness, and industrial applicability. Failure to meet any one of these three conditions results in the application being refused a protection title.

An industrial design must be novel

Article 65 of the Law on Intellectual Property provides that an industrial design is considered novel if it is significantly different from industrial designs that have already been publicly disclosed — whether through use, written description, or any other means — domestically or abroad, before the filing date or the priority date (if the application is entitled to priority).

Regarding the principle for determining difference, two industrial designs are not considered significantly different from each other if they differ only in design features that are not easily perceived or remembered and cannot be used to distinguish the overall appearance of the two designs. In addition, an industrial design is considered not to have been publicly disclosed if it was known only to a limited number of people who were under an obligation to keep it confidential.

The law also recognizes a grace-period mechanism for novelty: an industrial design is not considered to have lost its novelty if it is disclosed in certain specified circumstances, provided that the application is filed within six months from the date of disclosure. These circumstances include:

• The design was disclosed by another person without the permission of the person entitled to register it;
• The design was disclosed by the person entitled to register it themselves, in the form of a scientific report; or
• The design was displayed at a national exhibition of Vietnam or at an officially recognized international exhibition.

An industrial design must be creative

Under Article 66 of the Law on Intellectual Property, an industrial design is considered creative if, based on industrial designs that have been publicly disclosed in any form before the filing date or priority date, the design could not easily be created by a person with average knowledge of the relevant field.

This provision sets an objective standard of assessment, based on the perception of a hypothetical person of average technical skill in the relevant field, rather than on the subjective judgment of the applicant or the examining authority. In examination practice, a design is often considered to have been “easily” created — and therefore fails to meet the creativeness requirement — in cases such as:

• Reproducing the shape of objects or phenomena that already exist in nature;
• Using basic, commonly used geometric shapes; or
• Copying the whole or a significant part of the shape of pre-existing man-made structures or products.

An industrial design must be capable of industrial application

Under Article 67 of the Law on Intellectual Property, an industrial design is considered capable of industrial application if it can be used as a template for the mass production of products with a similar external appearance, by industrial or handicraft methods.

This condition plays an important role in distinguishing an industrial design — a subject matter protected under industrial property law — from a work of applied art, which is governed by copyright. A shape that has only standalone aesthetic value and cannot be replicated into a series of identical products will not satisfy this condition. In practice, industrial applicability generally requires that:

• The product must have a stable shape that does not change due to the natural properties of the material or the effects of the surrounding environment (thereby excluding liquid or powder products without a fixed form); and
• The design must be usable as a template for mass-producing similar products without requiring special, individualized skills or techniques on the part of each person carrying out the production.

Subject matter excluded from industrial design protection

Under Article 64 of the Law on Intellectual Property, even where the conditions of novelty, creativeness, and industrial applicability are fully satisfied, certain subject matter is nonetheless excluded from the scope of industrial design protection, including:

• The external appearance of a product that is dictated solely by the technical features that the product must necessarily have. This rule is intended to prevent the industrial design protection mechanism from being misused to monopolize technical solutions that should only be protectable as inventions or utility solutions, thereby ensuring fairness and maintaining a healthy competitive environment.
• The external appearance of civil or industrial construction works. Due to their particular scale, nature, and the separate management mechanisms applicable to them under construction law, construction works fall outside the scope of the industrial design regime.
• The shape of a product that is not visible during the product’s use. Because the essential nature of an industrial design is a form of expression observable to the naked eye, details that are hidden inside a product and are not revealed during ordinary use do not meet the legal nature required of this subject matter of protection.