Complaints related to industrial property in Vietnam

Procedures for resolving complaints related to industrial property in Vietnam play an important role in protecting rights and resolving disputes related to industrial property. With the constant development of technology and competition in industries, mastering the procedures for resolving complaints is necessary to ensure the rights and fairness of relevant parties. In this article, Viet An Law will summarize the legal regulations related to the complaint resolution process under current intellectual property law in Vietnam.

Legal basis

• Law on Intellectual Property 2005, as amended and supplemented 2009, 2019, 2022;
• Law on Complaints 2011, as amended and supplemented 2013;
• Decree 65/2023/ND-CP details several articles and measures to implement the Intellectual Property Law on industrial property, protection of industrial property rights, rights to plant varieties, and State management. water on intellectual property;
• Decree 124/2020/ND-CP on guiding the implementation of the Law on Complaints;
• Circular 23/2023/TT-BKHCN guiding the Law on Intellectual Property and Decree 65/2023/ND-CP on industrial property rights; (Article 35).
• Circular 263/2016/TT-BTC regulates industrial property fees.

New regulations on industrial property complaints

The Intellectual Property Law, as amended and supplemented in 2022, has introduced new regulations on complaints and complaint settlement related to industrial property procedures in Article 119a, after Article 119 (Time limit for processing industrial property registration applications). Therefore, this is a completely new procedure that will be applied starting from 2023 when the new Law takes effect.

To concretize the provisions in this Article on complaint handling procedures at the National Office of Intellectual Property, the Ministry of Science and Technology issued Circular 23/2023/TT-BKHCN dated November 30, 2023, to guide related regulations.

The subject has the right to complaint

• Applicants and organizations and individuals with rights and interests directly related to decisions or notices related to the processing of applications for registration of rights establishment, maintenance, extension, modification, termination or cancellation invalidate industrial property protection titles, register industrial property transfer contracts issued by the National Office of Intellectual Property.
• Vietnamese organizations and individuals, foreign individuals permanently residing in Vietnam, foreign organizations, and individuals with production and business establishments in Vietnam submit complaints directly or through legal representatives in Vietnam.
• For foreign individuals not permanently residing in Vietnam, foreign organizations and individuals without production or business establishments in Vietnam, shall submit a complaint through a legal representative in Vietnam.

Decisions can be complained under Intellectual Property Law

Decisions and notices that can be appealed specified in Clause 1, Article 119a of the Intellectual Property Law are “official decisions and notices of the National Office of Intellectual Property related to industry property procedures” according to the corresponding regulations in Article 36 of Circular 23/2023/TT-BKHCN, including the following decisions and announcements:

• Notice of refusal to accept applications;
• Decision to accept valid application;
• Decision to refuse to accept the application;
• Notice of acceptance or rejection of requests to amend or supplement applications/convert applications/change applicants/withdraw applications;
• Decision to refuse to grant a protection title; Decision to grant a protection title;
• Decision to refuse to accept protection of internationally registered industrial designs; Decision to refuse to accept internationally registered trademark protection; Decision to accept protection of internationally registered industrial designs; and Decision to accept internationally registered trademark protection;
• Decision to grant duplicate protection title, decision to re-issue protection title; decision to refuse to grant a copy of the protection title, decision to refuse to re-issue the protection title;
• Notice of maintaining the validity of the protection title/ Decision to refuse to maintain the validity of the protection title;
• Decision to extend the validity of the protection title, Decision to refuse to extend the validity of the protection title;
• Decision to amend the protection title, Decision to refuse a request to amend the protection title;
• Decision to terminate or cancel part or all of the validity of the protection title, notice of refusal to terminate/cancel the validity of the protection title;
• Decisions and notices on the handling of applications for termination or invalidation of international trademark registration; Decisions and notices on the handling of applications for termination or invalidation of international registration of industrial designs;
• Administrative decisions related to industrial property representation, industrial property inspection, and transfer of industrial property rights;
• Decision to resolve the first complaint of the National Office of Intellectual Property;
• Decisions, notices, and other acts that meet the conditions of being the subject of a complaint according to the provisions of law on complaints.

It is necessary to distinguish administrative decisions from informational notices and requests to complete documents that the Department issues when processing industrial property registration applications. These notices are not the subject of complaints, for example: Notice of examination results; Notification of shortcomings, request for amendments, additional documents, intention to refuse; Notice of temporary refusal to protect internationally registered trademarks; Notice of refusal to protect internationally registered industrial designs.

Complaint form

The content of the complaint must be expressed in a complaint form, which must clearly state the full name and address of the complainant; number, date of signing, content of the decision or notification being complained of; complaint content, arguments, and evidence to support the complaint; make specific requests for correction or revocation of the relevant decision or notification.

Complaints are filed in paper form or electronically using the online filing system. The complaint form is made according to Form No. 01 issued with Decree 124/2020/ND-CP, attached below:

Attached with the complaint, the applicant must submit documents related to the complaint content as prescribed in Clause 2, Article 8 of the Law on Complaints, specifically as follows:

• A copy of the complained decision or notice of the National Office of Intellectual Property and a copy of the industrial property registration application that is the subject of that decision or notice (in case the applicant makes a second complaint); or documents indicating information about the above documents;
• Copy of decision to resolve the first complaint (for the second complaint);
• Evidence (evidence or material evidence) is used to prove and clarify the argument of the complaint. Note: Additional evidence can be submitted within 1 month from the date of filing the complaint.

Complaint records related to industrial property

• Complaint form according to the prescribed form;
• Documents related to the complaint content according to regulations;
• Power of attorney (if the Client applies through an industrial property representative such as Viet An Luat); For a second complaint, a copy of the authorization document must be certified by the National Office of Intellectual Property.
• For second-time complaints: Decision to resolve the first-time complaint, relevant documents for the person competent to resolve the second-time complaint.
• Proof of payment of official fees (if any).

Statute of limitations for complaints related to industrial property

The statute of limitations for making complaints according to the provisions of the Law on Complaints is 90 days from the date of receiving the administrative decision or becoming aware of the administrative decision or administrative act, excluding the time when there are objective obstacles.

For a second complaint (in case first complaint not resolved or from the date of receipt of the decision to resolve the first complaint with which the complainant disagrees), within 30 days from the date of expiration Resolve complaints according to the above regulations; For remote and remote areas with difficulty in traveling, the time limit may be longer but must not exceed 45 days.

After the time limit for resolving complaints specified above expires, if the first complaint is not resolved or the complainant does not agree with the decision to resolve the first complaint, he/she has the right to initiate an administrative lawsuit in court according to regulations of administrative proceedings.

Procedures for resolving complaints related to industrial property in Vietnam

Step 1: Receive complaints related to industrial property

Clients can submit a complaint related to industrial property by submitting it directly or by post to the headquarters of the National Office of Intellectual Property.

Within 10 days from the date of receipt of the complaint, the National Office of Intellectual Property must:

• Issue a notice of refusal to process the complaint if the application falls into one of the cases specified in Point b of this Clause, clearly stating the reason for refusal; or
• Issue a notice of acceptance to resolve the complaint if the application does not fall into the cases specified in Point b of this Clause, recording the date of acceptance of the application and determining the search fee and/or appraisal fee for cases requiring re-examination to serve the resolution of the complaint corresponding to the complaint content (if any) and set a time limit of 01 month for the complainant to pay the fee.

Step 2: Handle complaints related to industrial property

• The National Office of Intellectual Property confirms the content of the complaint: notifies in writing the content of the complaint to the relevant party and sets a time limit of 01 month from the date of notification for that person to give their opinion (if any), whenever having a response, NOIP sent it to the complainant and set a time limit of 02 months to respond.
• During the initial complaint process for complex complaints, providing new information that may affect the complaint settlement conclusion, the NOIP may proactively or at the complainant’s request conduct re-examination process. The National Office of Intellectual Property can consult with independent experts or the Advisory Council as prescribed in Article 38.4 of Circular 23/2023/TT-BKHCN.
• When resolving the first complaint, NOIP organizes a dialogue according to the provisions of Article 30 of the Law on Complaints. Independent consultants and members of the Advisory Council may be invited to attend if they participated in the appraisal process (if any).
• The Department issues a Decision to resolve the complaint.

Note: Complaints and complaint resolution not specified in Article 119a of the Intellectual Property Law are carried out by the law on complaints.

The time limit for resolving complaints

• The time limit for resolving complaints related to industrial property is 10 days from the date of receipt of the dossier.
• After processing the complaint, the National Office of Intellectual Property will decide to resolve the complaint.
• The time limit for settling complaints shall apply under the law on complaints. In case the state management agency in charge of industrial property rights re-examines or the complainant amends or supplements the complaint dossier, the time for carrying out such procedures shall not be counted in the time limit for settling complaints under the law on complaints.
• In case the application needs to be re-examined, the time limit for re-examination of the industrial property registration application is two-thirds (2/3) of the time limit for the first examination. For complicated cases, it can be extended but not exceeding the time limit for the first appraisal (Clause 3, Article 119 of the Intellectual Property Law).

Services of Viet An Law on complaints related to industrial property

• Legal advice on procedures for resolving complaints related to industrial property in Vietnam;
• Drafting documents to resolve complaints related to industrial property;
• Submit documents and monitor progress at the National Office of Intellectual Property;
• Exchange and provide information to Clients in the process of completing procedures to resolve complaints related to industrial property.

Any difficulties and problems related to industrial property registration complaints, please contact Viet An Law Firm for advice!