What is the base for the assessment of the creativity of an industrial design? What are the regulations on the novelty of industrial designs?
- What is the base for the assessment of the creativity of industrial designs in Vietnam?
- What are the regulations on the novelty of industrial designs in Vietnam?
- What are the acts of infringement of rights to inventions and industrial designs?
- What are the regulations on the right of prior use of inventions and industrial designs?
What is the base for the assessment of the creativity of industrial designs in Vietnam?
Pursuant to Article 66 of the 2005 Law on Intellectual Property of Vietnam stipulating as follows:
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.
Thus, according to the above regulations, consideration of industrial designs will be based on industrial designs already publicly disclosed inside or outside Vietnam before the filing date, the industrial design cannot be easily created by a person with average knowledge in the art.
What is the base for the assessment of the creativity of an industrial design? (Image from the Internet)
What are the regulations on the novelty of industrial designs in Vietnam?
Pursuant to Article 65 of the 2005 Law on Intellectual Property of Vietnam stipulating as follows:
Novelty of industrial designs
1. 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.
2. 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.
3. 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.
4. 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 (6) months from the date of publication:
(a) It is published by another person without permission from the person having the right to register it as defined in article 86 (This phrase has been replaced by Point c, Clause 82, Article 1 of the 2022 Law amending and supplementing a number of articles of Law on Intellectual Property effective from January 1, 2023) of this Law;
(b) It is published in the form of a scientific presentation by the person having the right to register it as defined in article 86 (This phrase has been replaced by Point c, Clause 82, Article 1 of the 2022 Law amending and supplementing a number of articles of Law on Intellectual Property effective from January 1, 2023) of this Law;
(c) 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 as defined in article 86 (This phrase has been replaced by Point c, Clause 82, Article 1 of the 2022 Law amending and supplementing a number of articles of Law on Intellectual Property effective from January 1, 2023) of this Law.
Thus, an industrial design shall be deemed to be new if it significantly differs from other industrial designs which have been publicly disclosed inside or outside Vietnam prior to the filing date. 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.
What are the acts of infringement of rights to inventions and industrial designs?
Pursuant to Article 126 of the 2005 Law on Intellectual Property of Vietnam stipulating as follows:
The following acts shall be regarded as infringements of rights of owners of inventions, industrial designs and layout designs:
- Using protected inventions, protected industrial designs or industrial designs insignificantly different from protected industrial designs, or protected layout designs or any original part thereof within the valid term of a protection title without permission from the owners.
- Using inventions, industrial designs and layout designs without paying compensation according to the provisions on provisional rights in article 131 of this Law.
What are the regulations on the right of prior use of inventions and industrial designs?
Pursuant to Article 134 of the 2005 Law on Intellectual Property of Vietnam (amended by Clause 16 Article 1 of the 2009 Law amending a number of articles of Law on Intellectual Property) stipulating the right of prior use of inventions and industrial designs as follows:
- In case a person has. before the filing date or priority date (if any) of an invention or industrial design registration application, used or prepared necessary conditions for using an invention or industrial design identical with the protected invention or industrial design stated in that registration application but created independently (below referred to as prior use right holder), then after a protection title is granted, he/she may continue using such invention or industrial design within the scope and volume of use or use preparations without having to obtain permission of or paying compensations to the owner of the protected invention or industrial design. The exercise of the right of prior users of inventions or industrial designs is not regarded as an infringement upon the right of invention or industrial design owners.
- Holders of prior use right to inventions or industrial designs may not assign such right to others, unless that right is assigned together with the transfer of business or production establishments which have used or are prepared to use the inventions or industrial designs. Prior use right holders may not expand the use scope and volume unless it is so permitted by invention or industrial design owners.
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