Conditions for protection of industrial design in Vietnam

Nowaday, which recognizes the development of the commodity trading market, along with the application of modern science and technology, the types of goods are increasingly diversified and highly competitive. Concurrently, the shopping trends also develop, the role of product design becomes even more important. Therefore, to be able to compete in the increasingly fierce commodity market today, it is imperative that businesses have their own designs and designs of goods to be able to register for protection of industrial designs of each product they create. Therefore, what are the conditions for the protection of an industrial design? To answer your questions, Viet An Law summaries an article on conditions for protection of industrial designs in Vietnam below.

Legal basis

• The Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022.

What is an industrial design?

An industrial design is the appearance of a product that crystallizes its aesthetic creation value and meets the conditions prescribed by law for exclusive protection for a certain period of time.

At the same time, based on Clause 13, Article 4 of the Law on Intellectual Property 2005 as amended and supplemented in 2009, 2019, and 2022, industrial designs are defined as the external appearance of products or parts to be assembled into finished products. complex product, represented by shape, line, color or a combination of these elements and visible in the process of exploiting the function of the product or complex product.

Conditions for protection of industrial designs in Vietnam

According to Article 63 of the Intellectual Property Law, an industrial design will be protected if it meets the following conditions:

• Novelty of industrial design.
• That design have creative nature.
• This design has industrial applicability.

Novelty of industrial design

The requirement of novelty for industrial designs is one of the factors showing the creative encouragement of the law on protection of industrial designs. The birth and application of crystallized designs of high aesthetic value. Accordingly, an industrial design is considered novel if it meets the following conditions:

• The design must satisfy a substantial difference from those designs that have been made public in the form of use, written description or any other form in the country or abroad before the date of filing or before the priority date (in case the industrial design registration application enjoys the right of priority).
• Two industrial designs are considered to be significantly different from each other if there are differences in design features that are easily identifiable and can be used to distinguish the two industrial designs as a whole. If two designs have only indistinct differences that must be observed very carefully to detect them, then the design does not meet the requirements for novelty.
• An industrial design is considered to have not been publicly disclosed if only a limited number of people know it and these people are obliged to keep the industrial design secret.

Note:

In addition to the above cases, there will be special cases specified in Article 65 of the Intellectual Property Law, even though the industrial design has been disclosed in the form of use, written description or in writing. another form but that design is still determined to have not lost its novelty, including:

• In case the industrial design is published by others without permission of the registrant.
• In case the design is published by the person with the right to registration in the form of a scientific report.
• In case the design is displayed by the person with the right to registration at a national exhibition of Vietnam or at an official international exhibition or has been officially acknowledged.

In order to be considered as having no loss of novelty if it is published in the above cases, the holder of the right to registration of an industrial design is required to make a registration application for protection within six months from the date of publication.

Industrial designs have creative nature

The condition of inventiveness means that it is required to demonstrate that the efforts and efforts have been made to create an industrial design that is exclusively protected for a limited time. Accordingly, in order to be able to evaluate and appraise the creativity of an industrial design, it is imperative to compare the basic design features of that industrial design with the basic design characteristics of each similar control industrial design found in the process of searching information.

An industrial design is considered to be creative if it is based on industrial designs that have been publicly disclosed in the form of use or any other form and that the design cannot be created easily. easy for people with average knowledge of the respective field. A person of average knowledge is a person who has common engineering practices and knows the general knowledge that is common in the respective field of engineering.

Accordingly, the following designs will not be considered creative:

• That look is a mere amalgamation of known styling features.
• A shape that partially or completely reproduces or imitates the inherent natural shape of trees, fruits and animals, or the shape of widely known geometric figures.
• That design is just a simple copy of the shape of products and works that are famous or widely known in Vietnam or around the world.
• That object simulates an industrial design of other fields and the imitation is already widely known in practice.

Thus, the condition for the inventiveness of an industrial design requires that it cannot be created easily and does not fall into one of the cases mentioned above.

Industrial design with industrial applicability

Industrial applicability is the basic factor to determine whether the protection condition for the external appearance of a product is an industrial design or just stops at the protection of works of art.

Industrial applicability of an industrial design must satisfy the following requirements:

• The design of the product must be expressed in a shape that is stable and does not fall under the circumstances where the shape changes according to the nature of the material or to different environments.
• The design of the product must be a model for the mass production of similar designs by industrial methods or colored crafts without requiring additional individual skills or techniques or other similar requirements.

In addition, according to the current law, there will be cases where industrial designs will be considered incapable of industrial application, specifically as follows:

• The object of registration for protection of an industrial design is the shape of a product whose state of existence is not fixed (such as products in gaseous or liquid form).
• It is only possible to produce a product in the shape of the object stated in the application through special skills or as it is not possible to repeatedly manufacture a product in the shape of the object stated in the application.

The above is an article on conditions for industrial design protection. If you have any questions about industrial design protection issues, please contact Viet An Law Firm for our best support!