PROCEDURES FOR REGISTRATION OF INDUSTRIAL DESIGNS

PROCEDURES FOR REGISTRATION OF INDUSTRIAL DESIGNS

According to the provisions of the Intellectual Property Law, an industrial design is a protected product, the entities creating the industrial design should carry out the registration procedure for industrial design protection to protect and use their rights. So what is the procedure of industrial design registration under the laws?

1.         What is industrial design

Industrial design means the outward appearance of a product embodied in three dimensional configuration, lines, colours or a combination of such elements. Thus, the industrial design will be what helps customers differentiate one product from another. For example, the appearance of an automobile is the industrial design of the car product.

2.         General conditions for industrial designs to be eligible for protection

An industrial design shall be eligible for protection when it satisfies the following conditions:

–           It is novel: An industrial design shall be deemed to be new if it significantly differs from other industrial designs which have been publicly disclosed by use or by means of written descriptions or in any other form either inside or outside Vietnam prior to the filing date or the priority date, as applicable, of the application for registration of the industrial design.

–           It is of a creative nature: An industrial design shall be deemed to be creative if, based on industrial designs already publicly disclosed through use or by means of written descriptions or in any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the application for registration of the industrial design, the industrial design cannot be easily created by a person with average knowledge in the art.

–           It is susceptible of industrial application: An industrial design shall be deemed to be susceptible of 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.

3.         Objects not eligible for protection as industrial designs

The following items shall be ineligible for protection as industrial designs:

–           Outward appearance of a product which is necessarily due to the technical features of the product;

–           Outward appearance of civil or industrial construction works;

–           Shape of a product which is invisible during the use of the product.

PROCEDURES FOR REGISTRATION OF INDUSTRIAL DESIGNS

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4.         Procedures to register industrial designs

–           Step 1: Looking up industrial designs

An industrial design is a product that comes from the creation of each person, so it is inevitable that a design devised by one person will coincide with a design which has been previously registered by another person.

When creating an industrial design and want to apply for protection of that design, we should check whether our design is identical or similar to a registered design. If we do a search, we can avoid the case of filing without approval due to the protected design, which causes time and money.

Design owners may search through the National Office Of Intellectual Property Of Vietnam (NOIP) ‘s portal or other foreign industrial design websites.

–           Step 2: Preparing dossiers Procedures to register industrial designs

After searching and determining that the industrial design is not identical or similar to any registered design, the holder of the industrial design can proceed with the drafting and preparation of necessary documents to register their own designs. The dossiers for industrial design registration include the following documents:

+          Declaration for registration, made on the stipulated form;

+          An industrial design description which consists of a descriptive section and a section on scope of protection of such industrial design.

+          A set of photos or drawings of such industrial design

+          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;

+          Receipt for payment of fees and charges.

–           Step 4: Formal examination of applications for registration of an industrial design by the NOIP

Applications for registration of industrial designs shall be subject to formal examination for evaluation of their validity.

An application for registration of industrial designs shall be considered invalid in the following cases:

+          It does not fulfil the formal requirements;

+          The subject matter stated in the application is ineligible for protection;

+          The applicant does not have the registration right, including where the registration right belongs to more than one organization or individual but one or more of them do not agree to the filing;

+          The application is filed in contravention of regulations on the filing method;

+          The applicant fails to pay fees and charges.

For applications for registration of industrial designs falling one of the above cases, the NOIP shall carry out the following procedures:

+          Issue a notice of intended refusal to accept the invalid application, clearly stating reasons and setting a time-limit for the applicant to correct errors or to object to such intended refusal;

+          Issue a notice of refusal to accept the invalid application if the applicant fails to correct errors, improperly corrects errors or fails to make a justifiable objection to such intended refusal stipulated in sub-clause (a) of this clause.

If the application has been revised and valid, the NOIP will issue a notice accepting the valid application.

Industrial designs registration applications are subject to formal examination within one month from the filing date.

–           Step 5: Publication of applications for registration of industrial designs

Applications for registration of industrial designs which have been accepted as being valid by the NOIP shall be published in the Official Gazette of Industrial Property in accordance with the provisions of this article. Applications for registration of industrial designs shall be published within two months as from the date such application is accepted as being valid.

As from the date an application for registration of industrial designs is published in the Official Gazette of Industrial Property up until prior to the date of issuance of a decision on grant of a protection title, any third party shall have the right to express an opinion to the NOIP for industrial designs rights on the grant or refusal to grant a protection title for such application. Such opinions must be made in writing and be accompanied by documents or must quote the source of information.

–           Step 6: Substantive examination of applications for registration of industrial designs by the NOIP

The applications for registration of industrial designs shall be substantively examined for evaluation of the eligibility for grant of protection titles for subject matter stated in such applications under protection conditions and for determination of the respective scope of protection.

Industrial designs registration applications shall have their substantive examination contents examined within seven months from the date of publication of the application.

–           Step 7: Grant of protection titles, entry into the register

Where an application for registration of industrial designs does not fall into the cases of refusal to grant protection titles and the applicant has paid the fee, the NOIP shall decide to grant a protection title and enter it in the National Register of Industrial Property.

The grant of a protection title as the result of an application for registration of a industrial design shall be refused in the following cases:

+          There are grounds to affirm that the subject matter stated in the application does not fully satisfy the conditions for protection;

+          The application satisfies the conditions for the grant of a protection title but does not have the earliest filing date or priority date.

Where an application for registration of industrial designs falls into the above cases, the NOIP shall carry out the following procedures:

+          Notify an intended refusal to grant a protection title, clearly stating the reasons therefor and setting a time-limit for the applicant to make an objection to such intended refusal;

+          Notify the refusal to grant a protection title if the applicant makes no objection or makes an unjustifiable objection to such intended refusal.

However, if the applicant has a valid opinion against the intended refusal, the NOIP must issue a protection title and record it in the National Register of Industrial Property.

Legal basis: 

  • Law on Intellectual Property 2005, amended and supplemented in 2019.

𝐋𝐈𝐍𝐂𝐎𝐍 𝐋𝐀𝐖 𝐅𝐈𝐑𝐌 – 𝐒𝐮𝐬𝐭𝐚𝐢𝐧𝐚𝐛𝐥𝐞 𝐜𝐨𝐨𝐩𝐞𝐫𝐚𝐭𝐢𝐨𝐧

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