Divide, withdraw industrial design application in Vietnam

To protect industrial designs in particular and intellectual property rights in general, registering industrial designs is very important. During the process of registering for industrial design protection, the applicant has the right to divide or withdraw the industrial design application. In the following article, Viet An Law – IP Firm will provide the clients with information to divide, withdraw industrial design application in Vietnam.

What is the industrial design?

According to Clause 13, Article 4 of the Intellectual Property Law 2005 as amended and supplemented in 2009, 2019, and 2022, industrial design is the external appearance of a product or part to be assembled into a complex product, expressed by shapes, lines, colors, or shapes combine these elements and be visible in the process of exploiting the uses of a product or complex product.

Industrial designs are protected if they meet the following conditions:

• Novelty;
• Creative level;
• Capable of industrial application.

Industrial design application in Vietnam

Industrial design registration is an administrative procedure carried out by the National Office of Intellectual Property, in other words, the owner applies to the National Office of Intellectual Property to be granted an exclusive protection certificate for industrial designs.

Industrial design application shall meet the general requirements specified in Articles 100 and 103 of the Intellectual Property Law, Appendix I of Decree 65/2023/ND-CP, and instructions in Article 21 of Circular 23/2023/TT-BKHCN.

Divide industrial design application

Legal basis

• Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, and 2022;
• Decree 65/2023/ND-CP elaboration on several articles and implementation measures of the law on intellectual property regarding industrial property rights, protection of industrial property rights, rights to plant varieties, and state management of intellectual property;
• Circular 263/2016/TT-BTC regulating industrial property state fees; as amended and supplemented by Circular 31/2020/TT-BTC, Circular 63/2023/TT-BTC;
• Circular 23/2023/TT-BKHCN regulating several articles of the Intellectual Property Law and measuring to implement Decree 65/2023/ND-CP;
• Decision 2060/2023/QD-BKHCN announcing new, abolished administrative procedures in the field of intellectual property within the scope of management functions of the Ministry of Science and Technology.

Definition

Dividing an industrial design application is a procedure in which the applicant divides one or several industrial designs in the initial industrial design application on the initiative of the applicant or upon the request of the National Office of Intellectual Property. Application for registration will divide one or several industrial designs into one or more new applications, called divisional applications.

Time to request division of application

Before the industrial property rights authority decides to refuse to accept the application, refuse the issuance of the protection title, or issue the protection title, the applicant may divide the application. The applicants for completion of this procedure have to pay state fees.

Notes when dividing industrial design application

• A divisional application carries a new application number and is dated as the submission date of the initial application or the prioritized date(s) of the initial application (if any).
• For each divisional application, the applicant shall pay the application fee and every state fee for procedures performed independently from the initial application (aside from the procedures performed at the initial application that are not required for re-performance at the divisional application) and be exempted from the fees for examination of the request for priority rights (except for cases of dividing industrial design applications due to the inability to ensure uniformity).
• The divisional application shall be examined regarding its format and continue to be processed under incomplete procedures for the initial application. The divisional application shall be published as per regulation.
• The initial application (after the dividing) shall continue to be processed under procedures for processing or amending the application.

Dossier to divide industrial design application

The dossier to divide industrial design application includes:

• 02 Declaration for registration which is typed according to Form 07 Appendix I of Decree 65/2023/ND-CP, in the declaration forms of the industrial design application, the serial numbers and date of filing of the initial application shall be specified;
• 01 Descriptions of the industrial design;
• Document requests to divide industrial design application;
• Power of attorney for Viet An IP Firm (in case the request is filed through a representative).

Procedure to divide industrial design application

Step 1: Apply the dossier

The applicant prepares a dossier with all the documents required by law. After fully preparing the dossier, the applicant applies it to the competent authority.

Methods to apply:

• Apply online via the Administrative Procedures Information System of the Ministry of Science and Technology;
• Directly or via postal service to the headquarters of the National Office of Intellectual Property in Ha Noi or 02 representative offices of the Department in Ho Chi Minh City and Da Nan

Step 2: Processing the dossier

After applying, a divisional application carries a new application number and is dated as the submission date of the initial application or the prioritized date(s) of the initial application (if any); be published after having the decision to accept a valid application. Besides, the divisional application shall be examined regarding its format and continue to be processed under incomplete procedures for the initial application.

Step 3: Pay state fees

The applicants shall pay fees to republish the divisional application if the division is effected after the National Office of Intellectual Property issues notices on acceptance of valid applications for initial applications. Besides, the applicant also pays a fee for the examination of the request for amendment.

In case the initial application has had the result of substantive examination of application:

• Official charges for filing application: 150.000 VND;
• Fee for publication of application: 120.000 VND.
• Fee for publication from the 2nd image onwards (if any): 60.000 VND/ 01 image.
• Particularly for a document requesting the division of an application applied to the initial application, the applicant has to pay a Fee for examination of the request for amendment: 160.000 VND.

In case the initial application has not yet had the result of substantive examination of the application:

• If the variants stated in the initial application are divided into divisional applications, the divisional application shall pay Official charges for applying: 150,000 VND; Fee for publication of application: 120,000 VND.
• If the variants are not stated in the initial application, the divisional application shall pay all state fees as the initial application.

Step 4: Publish the registration application

After carrying out the procedure to amend the initial application, the National Office of Intellectual Property issues a notification to record the amendment of the application and publish the amended content.

Withdraw industrial design application

Definition

Withdrawing an industrial design application is known as the applicant’s declaration on the withdrawal of the industrial design application before having the decision to grant or refuse to grant an industrial design protection title.

The right to withdraw industrial design application

An application shall be withdrawn by the applicant or the authorized representative under a power of attorney. If the application is filed by a representative, the power of attorney shall specify the authorization of the withdrawal or be enclosed with an order letter specifying the number of applications to be withdrawn.

The time to withdraw an application is before the National Office of Intellectual Property decides or refuses to grant a protection title.

Notes when withdrawing industrial design application

• From the time an applicant declares withdrawal of the application, all further procedures related to such application shall cease.
• All applications for registration of industrial designs that have been withdrawn or are deemed to have been withdrawn before their publication, except where they serve as grounds to claim priority rights.
• The processing time for applications to withdraw industrial design registration is 02 months from the date of the receipt of the dossier.

Dossier to withdraw industrial design application

• Declaration of withdrawal of the application in writing;
• Power of attorney (in case the request is filed through a representative), which clearly states the authorization to withdraw the application or must be accompanied by a letter of order specifying the application number to be withdrawn;

The number of dossiers for carrying out procedures to withdraw industrial design applications: 01 dossier.

Procedure to withdraw industrial design application

Step 1: Apply the dossier  

Organizations and individuals apply 01 dossier requesting the withdrawal of industrial property applications to the National Office of Intellectual Property.

Methods to apply:

• Apply online via the Administrative Procedures Information System of the Ministry of Science and Technology.
• Directly or via postal service to the headquarters of the National Office of Intellectual Property in Ha Noi or 02 representative offices of the Department in Ho Chi Minh City and Da Nang.

Step 2: Processing the application

• In case the request to withdraw the application has no shortcomings, the National Office of Intellectual Property shall issue a notice accepting the withdrawal of the application and record the withdrawal in the dossier. A withdrawn industrial property registration application cannot be restored but can only be used as grounds to claim priority rights.
• In case the request to withdraw the application is flawed or invalid, the National Office of Intellectual Property will issue a notice of intention to refuse to accept the withdrawal, clearly stating the reason for the applicant to correct the errors or express objections.
• If the applicant does not correct the errors, the correction is unsatisfactory, there is no objection, or the objection is not valid, the National Office of Intellectual Property shall issue a notice refusing to accept the request to withdraw the application.

Services to register industrial design by Viet An Law Firm

• Legal advice related to divide, withdraw industrial design applications in Vietnam, other IP applications for trademark registration, and patent registration in Vietnam;
• Representing the clients to carry out procedures to divide and withdraw industrial design applications at the National Office of Intellectual Property;
• Follow the process of application procedures, and respond when necessary;
• Consulting clients in discussing and resolving procedures at the National Office of Intellectual Property.

Clients who have related questions or need legal support to divide, withdraw industrial design application in Vietnam, please contact Viet An Law – IP Firm for the best support!