Conditions for protection of industrial designs in Vietnam

Conditions for protection of industrial designs in Vietnam

In order to be granted a patent for an industrial design in Vietnam, an industrial design must sastify the protection conditions prescribed by Vietnamese law. So, what are the specific industrial design protection conditions?

Objects ineligible for protection as industrial designs in Vietnam

The following items shall be ineligible for protection as industrial designs:

– Outward appearance of a product which is necessarily due to the technical features of the product.

– Outward appearance of civil or industrial construction works.

– Shape of a product which is invisible during the use of the product.

Design features of industrial designs prescribed by Vietnamese law

Design features of an industrial design are elements presented in the form of lines, configurations, colors, position or size correlation, which constitute, in combination with other features (signs), a gathering necessary and sufficient for the formation of that industrial design.

Substantial design features are design features that are noticeable/memorable, necessary and sufficient to identify an industrial design and distinguish it from another one used for the same type of product.

The same type of product is the product that has usages or functions identical or similar to each other. A complete product and parts used for assembling or incorporating a complete product are different types of product.

The following elements shall not be treated as basic design features of an industrial design:

– Configurations and lines dictated by the technical functions of the product (for example: the flat shape of data-recording disks is dictated by the relative motion between disks and reading heads, etc.);

– Elements whose presence in the combination of signs gives no aesthetic impression (impression of the shape of the product remains unchanged with or without those elements; for example: if a change in a familiar configuration or line is not impressive enough to be noticed, therefore, the changed configuration or line will be taken as old one);

– Materials used for manufacture of the product;

– Signs affixed or stuck on the product merely for the purpose of providing information or guidance on origin, features, composition, utility and usage of the product, for example: information on a label (such as manufacturer, trade indication, origin, bar code, etc.), trademark, GI, etc.;

– Size of the product, except for change of size of patterns of a fabric sample or similar materials;

– Other elements failing to satisfy the requirements.

Conditions for protection of industrial designs in Vietnam

An industrial design shall be eligible for protection when it satisfies the following conditions:

An industrial design shall be deemed to be new if it significantly differs from other industrial designs 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.

Two industrial designs shall not be deemed to be significantly different from each other if they are only different in features of appearance which are not easily noticeable and memorable and which cannot be used to distinguish such industrial designs overall.

An industrial design shall be deemed not yet publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret.

An industrial design shall be deemed not to have lost its novelty if it is published in the following cases, provided that the application for registration of the industrial design is filed within six (06) months from the date of publication:

 – It is published by another person without permission from the person having the right to register it;

 – It is published in the form of a scientific presentation by the person having the right to register it;

– It is displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to register it.

An industrial design shall be deemed to be creative if, based on industrial designs 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.

In the following cases, the industrial design stated in an application shall be considered non- creative:

– It is a simple combination of known design features (publicly disclosed design features are put together or assembled in such a simple way as replacement, interchange of positions, increase or decrease of quantity);

– It is a reproductionlimitation of part of or the whole inherent natural shape of a tree, fruit or animal, shapes of geometric figures (round, ellipse, triangle, square, rectangular, regular polygons and prisms, cross-sections of which are foregoing figures), which are widely known;

– It is a simple reproduction of the shape of a product or work well known or publicly known in Vietnam or worldwide;

– It is an imitation of an industrial design in another field, if such an imitation is widely known in reality (for example: toys imitating cars, motorcycles, etc…).

If not falling into the above cases, an industrial design is considered creative.

An industrial design shall be deemed to be susceptible of industrial application if it can be used as a model for mass manufacture of products with the outward appearance embodying such industrial design by industrial or handicraft methods.

The industrial design stated in the application shall be considered susceptible of industrial application if any person with average knowledge in the art can, based on information on the industrial design supplied in the application, use that industrial design as a model to manufacture by an industrial or manual method a product with an appearance identical to that industrial design.

In the following cases, the object stated in the application shall be considered insusceptible of industrial application:

– It is the shape of a product with an unfixed state of existence (products in gaseous or liquid form);

– A product whose shape identical to the object stated in the application can only be created with special skills or it is impossible to repeatedly manufacture a product whose shape identical to the object stated in the application;

– Cases where there exist other justifiable reasons.

How to assess the similarity of industrial designs under Vietnamese law

– Two industrial designs are considered identical when they are used for the same type of product and have the same gathering of substantial and insubstantial design features.

– Two industrial designs are considered not significantly distinguishable when they are used for the same type of product and have the same gathering of substantial design features.

– Two industrial designs are considered similar when they are used for the same type of product and have at least one substantial design feature identical to or not significantly distinguishable from each other.

– Two industrial designs among the similar industrial designs are considered the most similar when the number of their substantial design features that are identical to or not significantly distinguishable from each other is larger than that of all other similar industrial designs.

– Two industrial designs are considered not significantly distinguishable from each other when they are used for the same type of product or used for the same type of product but have at least one distinguishable similar design feature.