RIGHTS TO INDUSTRIAL DESIGN, DETERMINATION OF INFRINGEMENT ELEMENTS

Industrial design is protected objects according to the provisions of Vietnam’s Intellectual Property law, established on the basis of granting protection titles. However, the protection of industrial design is actually quite complicated due to the requirement to fully meet the requirements of novelty, creativity and industrial applicability. To ensure their legitimate rights and interests, subjects should clearly understand how to determine infringing elements of rights to industrial design as presented below.

1.         What is industrial design?

Industrial design means the outward appearance of a product or a component for assembly of a complex product, embodied in three dimensional configuration, lines, colours or a combination of such elements, and can be seen during the use of the product or complex product.

2.        Generation and establishment of rights to industrial design ownership

Industrial property rights to industrial design shall be granted on the basis of decisions on granting protection issued by competent authorities in accordance with registration procedures specified in this Law or on the basis of recognized international registration granted accordance with international agreement to which the Socialist Republic of Vietnam is a signatory.

Conditions for industrial design protection include:

–          Novelty: it significantly differs from other industrial design 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.

–          Creativity: based on industrial design 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.

–         Susceptible of industrial application: can be used as a model for mass manufacture of products with the outward appearance embodying such industrial design by industrial or handicraft methods.

>> PROCEDURES FOR REGISTRATION OF FUNCTIONAL FOODS DECLARATION https://linconlaw.vn/procedures-for-registration-of-functional-foods-declaration/

>> PROCEDURES FOR REGISTRATION OF INDUSTRIAL DESIGNS https://linconlaw.vn/procedures-for-registration-of-industrial-designs/

3.         Determination of infringement of rights to industrial design

a.         Infringement elements of rights to industrial design

Infringement element of rights to industrial design is a product or part for assembly into a complex product whose appearance is not significantly different from the protected industrial design.

b.         Basis for determining infringement elements

The basis for determining the infringement element  of rights to industrial design is the scope of industrial design protection determined according to the industrial design patent, the decision to accept the protection of an internationally registered industrial design. International or an extract from the National Register of Industrial Property. Specifically:

Products and parts for assembly into complex products with an external appearance are considered not significantly different from the protected industrial design if they fall into one of the following cases:

–          Products or parts to be assembled into complex products are considered, including cases where an industrial design patent has been granted, whose external appearance is a collection of design features forming a whole. is a copy or essentially a copy (it is almost impossible to distinguish the difference) of another person’s protected industrial design;

–          Products or parts to be assembled into complex products are considered to have an external appearance that is a collection of design features forming a whole that is a copy or essentially a copy of the industrial design of at least one product in another person’s protected product set.