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Third party observation on industrial design registration in Vietnam

The processing of third-party applications for industrial property rights registration aims to protect the rights and interests of subjects participating in industrial property rights legal relations while detecting and handling errors in compliance with legal regulations during the protection registration process. In the article below, Viet An Law Firm will present to customers the third party observation on industrial design registration in Vietnam to update new points of the Vietnam Intellectual Property Law 2022.

Third party observation on industrial design registration in Vietnam

Legal basis

  • Law on Intellectual Property 2005, as amended and supplemented 2009, 2019, 2022;
  • Decree 65/2023/ND-CP detailing industrial property, industrial property protection, and plant variety management;
  • Circular 23/2023/TT-BKHCN guiding the Intellectual Property Law and Decree 65/2023/ND-CP guiding the Intellectual Property Law on industrial property.

What is an industrial design?

According to Clause 13, Article 4 of the Intellectual Property Law 2005, 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.

According to Article 63 of the Intellectual Property Law 2005, amended in 2022, industrial designs are protected if they meet the following conditions:

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

Third party observation on industrial design registration in Vietnam

According to Article 112 of the Intellectual Property Law 2005, as amended in 2022, a regulation has been added that separates the opinion of a third person on the granting of a protection title from the more mandatory concept of opposition to the application. If in the past, the opinion of a third person was understood as an objection with a strict process and deadline, then the provisions of the revised Intellectual Property Law 2022 have brought about a more harmonious regime in the decision-making process. receive comments from subjects regarding the examination and issuance of industrial design protection certificates. Specifically, Article 112 stipulates as follows:

  • From the date the industrial property registration application is published in the Industrial Property Official Gazette until the date of the decision to grant a protection title, any third person has the right to give opinions to the housing management agency. industrial property rights country on whether or not to grant a protection title to that application. Opinions must be made in writing accompanied by documents or information sources cited for proof.
  • The document stating the Third party observation is considered a source of reference information for the processing of industrial property registration applications.

Thus, the opinion of a third person is a procedure that allows receiving public comments on industrial property registration applications, on that basis, the National Office of Industrial Property will make decisions on industrial property applications. under examination. The third party observation is considered a reference source of information for the appraiser during the application examination process. However, the National Office of Intellectual Property only receives opinions from third parties, but may not have feedback or have to establish separate procedures to resolve third party opinions. In addition, the third party observation is only considered a source of reference information for the processing of industrial property registration applications and is not binding.

Thus, it can be seen that a third party observation of an industrial design registration application has the following characteristics:

The entitled subject Any third person has the right to give opinions to the state management agency on industrial property rights on whether or not to grant a protection title for that application.
Submitting time​ After publication in the Industrial Property Official Gazette to before the date of issuance of the decision to grant a protection title.
Form Opinions must be made in writing with additional documents or information sources cited to prove it.
Procedure None
Function For reference only

Note:

Although it is not required to be handled according to legal procedures, in cases where the third party’s opinion is reasonable and objective, re-examination procedures may be carried out if the results of the substantive examination have been approved. issued previously. This procedure is carried out according to the content examination steps for industrial designs in Clause 10, Article 23 of Circular 23/2023/TT-BKHCN. However, this is a separate process, not part of the third party opinion document review process.

Distinguishing third party observations from objections to industrial property registration applications

According to Article 112a of the Intellectual Property Law, regulations on third parties opposing industrial property registration applications are as follows:

  • Before the decision to grant a type protection certificate industrial design, within the prescribed time limit, any third person has the right to object to granting that protection title.
  • Objections must be made in writing, accompanied by documents or citing sources of information to prove them, and fees and charges must be paid.
  • The state management agency on industrial property rights is responsible for handling objections according to the order and procedures prescribed by the Minister of Science and Technology. Opposing an industrial design registration application is a separate, independent procedure, similar to other procedures such as termination, invalidation, or complaint.

Thus, unlike the third party’s opinion, which is received without a time limit, the objection to the registration application has a deadline for reception according to the law. In addition, because it is only for reference, the third party observation does not need to have a separate reception and handling procedure, while the opposite is true for objections. Unlike the opinion of a third person who is a reference source for the National Office of Intellectual Property, the protest petition has a higher legal status so that the public can have an opinion on the granting of exclusive rights to the type of industrial design that the public must respect if they consider the style The industrial design applied for registration has the potential to conflict, have a negative impact, or do not meet the conditions for protection.

Content of a third party observation on an industrial design registration application

The content of the third party observation must show some of the following basic contents:

  • Object to be registered for protection: the written opinion must mention the object, information including application number, application owner, application filing date, and other related information.
  • Content of observation: the opinion given may be to strengthen the registration, or oppose the registration of protection of the industrial design in question. Opinions need to be presented in order, with clear headings for easy tracking, and related requirements and suggestions should be briefly summarized in a separate section as a basis for reference during the appraiser’s review. It is important to note that the arguments and arguments in different opinions should address different issues and avoid repetition to increase the feasibility of the opinion.
  • Accompanying evidence: evidence that clarifies the opinions expressed in the application or points to reliable sources of information.

Industrial property representation services of Viet An Law Intellectual Property Representative

  • The application owner’s representative registers the industrial design at the National Office of Intellectual Property.
  • Monitor registration progress, respond, and respond when necessary.
  • Representing the client to object to a third party’s industrial design registration application when there are sufficient grounds to determine rights infringement.
  • Consulting and supporting customers in discussing and resolving objection procedures at the National Office of Intellectual Property.
  • Representing the client to sue in court regarding the right to register industrial designs.

If you have questions or need advice on legal services related to industrial design protection registration, please contact Viet An Law for the best support!

Disclaimer: This article was last updated in April 2024. Laws may have changed since then. Please contact Viet An Law to confirm the information in this article is current and for any legal assistance.

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