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THE
MINISTRY OF SCIENCE AND TECHNOLOGY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
29/2003/TT-BKHCN
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Hanoi,
November 05, 2003
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CIRCULAR
PROVIDING GUIDELINES FOR IMPLEMENTATION OF PROCEDURES FOR
ESTABLISHMENT OF INDUSTRIAL PROPERTY RIGHTS WITH RESPECT TO INDUSTRIAL DESIGNS
Pursuant to Decree No.
54/2003/ND-CP of the Government dated 19 May 2003 on the functions, duties,
powers and organizational structure of the Ministry of Science &
Technology;
Pursuant to Decree No. 63-CP of the Government dated 24 October 1996 as amended
by Decree No. 06/2001/ND-CP of the Government dated 1 February 2001 providing
detailed regulations on industrial property;
The Ministry of Science & Technology hereby provides guidelines for
conducting procedures on formulation, submission and examination of
applications for certificates of protection with respect to industrial designs;
and for procedures on issuance, amendment, extension, suspension and rescission
of validity of certificates of protection with respect to industrial designs.
Chapter 1
GENERAL PROVISIONS
1. Interpretation of terms:
1.1 In this
Circular the following terms shall be construed as follows:
(a) "Decree"
refers to Decree No. 63-CP of the Government dated 24 October 1996 as amended
by Decree No. 06/2001/ND-CP of the Government dated 1 February 2001 providing
detailed regulations on industrial property;
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(c) "Applicant"
means the underwriter in whose name the Application is submitted;
(d) "Procedures
for registration of an industrial design" means procedures for
establishment of industrial ownership of an industrial design and other related
procedures.
1.2 Other
terms shall have the same meanings as in the Decree.
2. Certification of documents:
2.1
Certification of original documents:
During the
process of conducting procedures for registration of an industrial design, all
original documents of a transaction must be certified by the underwriter which
gives its name to such document in accordance with the following provisions:
(a) If the
underwriter who gives his/her name to the document is an individual, the
document must bear the full name and signature of such individual or of the
authorized representative of such individual;
(b) If the
underwriter who gives its name to the document is an organization required to
use a seal, then the signature of the authorized representative of the
underwriter must be sealed.
2.2
Certification of copies:
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(b) A
document shall be recognized as a true copy of the original where such copy is
certified as a true copy by one of the following bodies: Public notary,
people's committee or competent authority, underwriter (all the underwriters)
giving its/their name to the original document or the proxy of the underwriter/
underwriters. If the copy consists of many pages, each page must be certified
or the pages must be affixed with overlapping seals.
2.3
Certification of translations:
(a) All
Vietnamese translations of documents must be certified to be correctly
translated from the original as stipulated in clause (b) below before they
shall be permitted to be used as official documents when conducting procedures
for registration of an industrial design;
(b)
Certification of translations may be carried out by one of the following
methods:
-
Notarization;
-
Certification by the underwriter (all underwriters) giving its/their name to
the original document or by the proxy of the said underwriter/s;
- Recognition
by the same body authorized to use the translation during the process of
conducting the relevant procedures.
3. Persons conducting procedures for registration of an industrial
design in the name of the underwriter:
3.1 Only the
persons stipulated in clauses 3.2 and 3.3 below shall be permitted to conduct
procedures in the name of the underwriter for registration of an industrial
design with the National Office of Industrial Property and other authorized
bodies.
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3.2 Where underwriters
are entitled to directly file applications and conduct the related procedures
stipulated in articles 15.2 and 15.3(a) of the Decree, the following persons
shall be permitted to conduct procedures in the name of an underwriter to carry
out the work stipulated in clause 3.1 of this Circular:
(a) The
individual or the legal representative of the individual (if the underwriter is
an individual);
(b) The legal
representative of the underwriter; an individual who is a member of the
underwriter and entrusted with representation by the legal representative of
the underwriter; the head of the representative office or branch of the
underwriter entrusted with representation by the legal representative of the
underwriter (applicable to an underwriter which is a legal entity or to other
underwriters);
(c) The head
of a representative office in Vietnam of a foreign underwriter entrusted with
representation by that underwriter; the legal representative of an enterprise
with one hundred (100) per cent foreign owned capital established in Vietnam of
a foreign underwriter entrusted with representation by that underwriter;
(d) Any
person satisfying one of the conditions stated in clauses (a), (b) and (c)
above who is one of the individuals or one of the legal entities or other
underwriters if the underwriter consists of multiple individuals, legal
entities or other underwriters and if that person is entrusted with
representation by all individuals, legal entities or other underwriters.
3.3 Where
underwriters are only entitled to file applications and conduct related
procedures through an authorized industrial property representative service
organization as stipulated in article 15.3(b) of the Decree, as well as where
other underwriters conduct the above mentioned procedures through an authorized
industrial property representative service organization, only the legal
representative or the proxy pursuant to a power of attorney of the industrial
property representative service organization which has power of attorney from
the underwriter shall be permitted to carry out the work stipulated in clause
3.1 of this Circular.
4. Authorization for implementation of procedures for
registration of an industrial design:
4.1 The
provision of authorization and the exercise of authorization to conduct
procedures for registration of an industrial design must comply with the
provisions on civil contracts and on contracts of authorization in the Civil
Code and with the provisions in this Circular.
4.2
Authorizations for implementation of procedures for registration of an
industrial design shall be made in writing (power of attorney) and shall
include the following main particulars:
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(b) Full name
and address of authorized party;
(c) Scope of
authorization (tasks to be implemented by authorized party in the name of
authorizing party);
(d) Date on
which power of attorney is granted;
(e) Signature
and/or seal of the party granting the power of attorney;
(f) Duration
of authorization.
If a power of
attorney does not specify any duration of authorization it shall be deemed to
be valid for an indefinite term and its validity shall only be terminated when
the authorizing party makes a declaration of termination of authorization.
4.3 The
authorized party must be an individual entitled to implement the procedures for
registration of an industrial design as stipulated in clause 3.2 of this
Circular, or an industrial property representative service organization.
4.4 The
authorized party must submit the original power of attorney when conducting the
procedures for registration of an industrial design. All adjustments to the
scope of authorization and early termination of authorization shall be notified
in writing to the National Office of Industrial Property and other authorized
bodies, and shall only take effect as from the date the body receives such
notice.
4.5 If the
scope of authorization in a power of attorney includes tasks relating to a
number of different procedures and the original power of attorney has already
been submitted to the National Office of Industrial Property, then when
carrying out subsequent procedures the authorized party must specify the number
and date of the application file which contained the original power of
attorney.
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APPLICATIONS AND DEALING
WITH APPLICATIONS
Section I: APPLICATIONS
5. Requirements on the form of applications:
5.1
Applications shall satisfy the following formal requirements:
(a) All
application documents must be prepared in Vietnamese, except for those which
may be in other languages pursuant to clauses 5.2 and 5.3 of this Circular;
(b) All
application documents must be presented in portrait orientation (although
pictures of drawings and photos of an industrial design may be presented in
landscape [i.e. A3] orientation) on single-sided paper of A4 size (210mm x
297mm) with twenty (20) millimeter wide margins from each of the four edges,
except for supporting documents the originals of which are not included in the
Application.
(c) For
documents required to be prepared in accordance with stipulated sample forms,
it shall be mandatory to use such forms and to complete the appropriate items
in the forms;
(d) For
documents consisting of more than one page, each page shall be numbered consecutively
using Arabic numbers;
(e) Documents
must be typed or printed clearly and neatly in non-fading ink without any
erasure or correction;
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(g) An
Application may enclose subsidiary data being an object containing an
electronic file of some or all of the contents of the Application documents,
presented in accordance with the regulations of the National Office of
Industrial Property on the form of data.
5.2 The
following documents may be prepared in languages other than Vietnamese but must
be translated into Vietnamese:
(a) Power of
attorney;
(b) Document
certifying the lawful right to file an Application if the Applicant is the
beneficiary of a right to file the application from another person (certificate
of inheritance, certificate or agreement of transfer of right to file the
application including transfer of an application already filed, contract for
work assignment or labour agreement, and so forth);
(c) Documents
evidencing basis of entitlement to priority right (certification from the body
which received the application in the case of a copy application or first
applications; certificate of exhibition display, and so forth; certificate of
transfer of priority right if such right was received from another person).
5.3 The
following documents may be prepared in languages other than Vietnamese but must
be translated into Vietnamese if the National Office of Industrial Property so
requires:
(a) Copy
first application as evidence of the basis of entitlement to priority right;
(b) Other
documents which support the Application.
6. Requirements on the content of Applications:
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Each
Application may only request issuance of a Certificate of exclusive right to
one industrial design for one product or one set of products and may include a
number of different plans of that industrial design.
An Applicant
may request protection in different Applications of different plans of one
industrial design, on condition that all subsequently filed Applications must
record instructions that the industrial design is a plan of the industrial
design in the previously filed Application, and the number and filing date of
the previously filed Application must also be recorded. If the said
instructions are missing, the industrial design in any subsequently filed
Application shall be deemed not to be new because it is not basically different
from the industrial design/s in the previously filed Application/s. If the said
instructions are provided, the Applicant shall be issued with only one
Certificate of protection which shall include all the plans of the industrial
design which were stated in the relevant Applications.
In this
clause, the following words shall be construed as follows:
- Product
means an object, instrument, item of equipment or a facility and so forth which
is produced by industrial or handicraft methods, and with a clear structure and
function and which can circulate independently;
- Set of
products means a collection of from two or more independent products normally
used together or aimed at together achieving the one objective;
- Different
plans of the one industrial design means versions of an industrial design
expressed in the one product or set of products and not basically different
from each other.
6.2
Applications must include the following documents:
(a)
Declaration requesting issuance of a certificate of exclusive right to an
industrial design, prepared in accordance with the sample form (Declaration) in
the appendix to this Circular;
(b)
Description of the industrial design (hereinafter referred to as the
Description);
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(d) Power of
attorney (if the application is filed by a representative);
(e) Copy of
first application or first applications or document certifying the exhibition
display if the Application requests enjoyment of priority right in accordance
with an international treaty;
(f) Voucher
proving payment of application filing fee, application declaration fee and fee
on request for enjoyment of priority right (if any such request), fee for
examination of contents and fee for classification of the industrial design (if
the Applicant has not made the classification).
6.3 The
documents listed in clause 6.2 above shall be submitted at the same time. The
following particular documents may be submitted within three months of the
filing of an Application:
(a) The
Vietnamese translation of the document listed in clause 6.2(b) where the
English version of such document was included in the Application;
(b) The original
of the document listed in clause 6.2(d), including the Vietnamese translation,
where a copy document was included in the Application;
(c) The
original of the document listed in clause 6.2(e), including the Vietnamese
translation, where the National Office of Industrial Property so requires.
6.4 If there
are grounds for doubting the reliability of information in the Application, the
National Office of Industrial Property shall have the right to require the
Applicant to file, within one month of the date of such requirement, documents
verifying such information, and in particular:
(a) Documents
verifying the lawful right to file an Application if the Applicant has received
the right to file the Application from another person (certificate of right of inheritance,
certificate or agreement of transfer of right to file the Application; contract
for work assignment or labour agreement, and so forth);
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6.5 The
Declaration shall specify the index for classification of the industrial design
to be protected in accordance with the international index for classification
of industrial designs (in accordance with the Locarno Agreement). If the
Applicant has not made a classification or has made an inaccurate
classification then the National Office of Industrial Property shall make a
classification and the Applicant shall pay a fee for classification services.
6.6 The
Description:
(a) The
Description shall include the following contents:
- Name of
products bearing the industrial design;
- Field in
which the products bearing the industrial design is used;
- The closest
known industrial designs which are not very different from the industrial
design for which protection is requested;
- List of
photos or drawings;
- Descriptive
section of the industrial design (hereinafter referred to as the Descriptive
section);
- Request for
protection.
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If the
industrial design which needs to be protected includes a number of plans then
the Descriptive section must present them fully and show their basic
differences from each other.
If the
industrial design which needs to be protected is an industrial design for a set
of products, the Descriptive section must fully present the design for each
product within that set.
(c) The
Request for protection shall be used to determine the scope (quantity) of
protection of the industrial design. The Request for protection must present
clearly the shaping features which have been created and which need to be
protected, namely the features which are new and which are different from other
known industrial designs.
The shaping
features which have been created and which need to be protected shall be
presented in the following order: the cubic features and/or the linear features
and/or the correlation between the above-mentioned features and/or colours (if
any).
6.7 The sets
of photos or drawings must fully express the shaping features of the industrial
design in conformity with the Descriptive section and the Request for
protection, and shall comply with the following provisions:
(a) The
photos and drawings must be clear and distinct, not mixing the products bearing
the industrial design to be protected with other products.
(b) All
photos and drawings shall be prepared to the same scale. The dimensions of each
photo or drawing shall not be less than ninety (90) millimetres by (x) one
hundred and twenty (120) millimetres and shall not exceed two hundred and ten
(210) millimetres by (x) two hundred and ninety seven (297) millimetres.
(c) Each
photo or drawing must be presented on or attached to white paper of A4 size
(210mm x 297mm) and pages must be numbered consecutively for compliance with
the provisions in clause 6.6(a) above.
(d) The
photos or drawings must contain an image of the perspective of the products
bearing the industrial design for which protection is requested.
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(f) Each
plan/project of the industrial design for which protection is requested must
have a photo or drawing showing the features which are different from basic
plans.
(g) With
respect to products which have a cover or which can be closed (such as
cabinets, suitcases and so forth), there must be an image of the product when
it is open.
(h) With
respect to a set of products, there must also be an image of the perspective of
the set of products as well as of the elevation of each product in the set.
6.8 The
National Office of Industrial Property shall provide detailed guidelines on the
Description and on the set of photos/drawings of industrial designs.
Section 2: FILING AND ACCEPTING APPLICATIONS
7. Filing applications:
Applications
may be filed at the National Office of Industrial Property or at any other
locations for receipt of Applications established by the National Office of
Industrial Property. Applications may also be sent by registered post to the
above locations.
8. Accepting applications:
8.1 After
receiving an Application, the National Office of Industrial Property shall carry
out the following:
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(b) Note any
differences between the list of documents stated in the Declaration and the
actual number of documents in the Application;
(c) Carry out
preliminary examination of the Application to make a conclusion on acceptance
or rejection in accordance with clause 8.2 below, and if the Application is
accepted then seal the Declaration with certification of the date of filing of
the Application;
(d) Issue the
Applicant with a receipt for the application sealed with certification of the
date of filing of the application, the number of the application and the result
of checking the list of documents, the receipt to bear the full name and
signature of the staff member accepting the Application.
8.2 The
National Office of Industrial Property shall not accept an Application which
lacks one of the following mandatory documents:
(a)
Declaration containing information being the name and address of the applicant;
(b)
Description containing Request for protection;
(c) Set of
photos or drawings on the industrial design;
(d) Voucher
proving payment of application filing fee.
8.3 In a case
where an Application is not accepted, the National Office of Industrial
Property shall, within a time-limit of 15 days from the date of receipt of the
Application, notify the applicant in writing of the reasons therefore and fix a
time-limit of 2 months from the date of the notice for the Applicant to rectify
deficiencies.
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In a case
where an Application is not accepted, the National Office of Industrial
Property need not return the Application documents to the Applicant, but shall
refund fees paid in accordance with the procedures on refund of fees set out in
this Circular.
Section 3: EXAMINATION OF FORM OF APPLICATIONS
9. Objective and contents of examination of form:
Examination
of the form of an Application means an inspection of compliance with the
provisions on the form of an Application in order to reach a conclusion on
whether or not the Application is deemed proper.
A proper
Application shall be considered for acceptance and an improper Application
shall be refused (not considered for acceptance).
10. Proper Application:
10.1 An
Application shall be deemed proper if it does not fall within one of the
following cases:
(a) The
application is prepared in languages other than Vietnamese, except for the
cases stipulated in clauses 5.2 and 5.3 of this Circular;
(b) There is
insufficient information in the Declaration about the author, the Applicant or
the representative, or the Applicant or representative has not signed and/or
sealed [the Declaration];
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(d) The
Application is filed inconsistently with the provisions in article 15 of the
Decree;
(e) The Applicant
fails, within the time-limit stipulated in clause 6.2 of this Circular, to
submit the Vietnamese version of the Description which was prepared in English;
(f) The power
of attorney is not filed within the time-limit stipulated in clause 6.2 of this
Circular;
(g) The
Application has the deficiencies stipulated in clause 11 below which affect its
validity, and the Applicant fails to rectify or satisfactorily rectify the
deficiencies despite a request from the National Office of Industrial Property to
do so;
(h) There are
grounds for immediate confirmation that the object stated in the Application is
clearly an object not to be protected by the State as stipulated in article 787
of the Civil Code and in article 5.3 of the Decree.
10.2 With
respect to an Application with a number of objects, if the Application falls
within the cases stipulated in clauses 10.1(h), 11.1(a), 11.1(b) and 11.1(e) of
this Circular and the deficiencies do not relate to all the objects in the
Application then it shall be deemed partially improper (applicable to the
deficient objects) but proper with respect to the remaining objects.
11. Dealing with deficiencies of Applications at the stage of
examination of form:
11.1 The
National Office of Industrial Property shall notify the Applicant if the
Application has the following deficiencies:
(a) There are
insufficient copies of any one type of mandatory document.
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(c) The
application fails to satisfy the requirements on the form of presentation;
(d) The
information about the Applicant in different documents is inconsistent or has
been erased or has not been correctly certified in accordance with the
regulations;
(e) The fees
prescribed in clause 6.2(f) above have not been paid in full.
11.2 The Applicant
must rectify these deficiencies within a time-limit of 2 months from the date
of the notice.
12. Determination of the date of filing an application:
The date of
filing an Application shall be the date on which the Application reached the
National Office of Industrial Property as indicated by the receipt seal on the
Declaration.
13. Determination of priority date:
13.1 If an
Application does not include a request for priority right, or if an Application
contains a request for priority right but the National Office of Industrial
Property does not approve the request, the priority date shall be the date of
filing the Application.
13.2 If an
Application includes a request for priority right, the priority date (or
priority dates) shall be the date stated in the above-mentioned request and
approved by the National Office of Industrial Property.
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If an
Application is deemed proper, the National Office of Industrial Property shall
send the applicant a notice approving the Application as proper. The notice
shall specify the name and address of the Applicant, the name of the industrial
property representative service organization (if the application is filed
through such organization), the name of the object stated in the Application,
the date of filing the application and the number of the application, and the
priority date of the Application. The notice shall also specify reasons if a
request for priority right is not approved.
15. Refusal to approve an Application:
If an Application
is deemed improper, the National Office of Industrial Property shall send the
applicant a notice of intention to refuse approval of the application. The
notice shall specify the deficiencies which result in the Application being
deemed improper, and shall fix a time-limit of 2 months from the date of the
notice for the Applicant to provide its opinion on the intention to refuse
approval of the Application.
If the
Applicant does not provide an opinion on the intention to refuse approval of
the application or provides an unmeritorious opinion, the National Office of
Industrial Property shall issue an official notice of refusal to approve the
application and on the request of the Applicant shall refund all fees paid
after the examination of form.
16. Time-limit for examination of form of Applications:
16.1 The
time-limit for examination of form shall be one month from the date of filing
an application. In the case of an Application where additional documents as
stipulated in clause 6.3 of this Circular are filed, the time-limit for
examination of form shall be one month calculated from the date of filing such
additional documents.
16.2 If
during the course of examination of form of an Application the Applicant,
either on its own initiative or at the request of the National Office of
Industrial Property, amends or supplements documents, the time-limit for
examination of form shall extend an extra 15 days. If an Application is amended
or supplemented at the request of the National Office of Industrial Property,
the period which was reserved for the Applicant to amend or supplement
documents shall not be included in the time-limit for examination of form.
Section 4: ANNOUNCEMENT OF APPLICATIONS
17. Announcement of proper Applications:
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18. Time-limit for announcement of Applications:
Applications
shall be announced in the second month from the date they are approved as
proper.
19. Contents of announcements of Applications:
The
information relating to proper Applications to be announced in the Official
Gazette shall comprise: all information about a proper Application set out in
the Notice of approval of the application as proper, information about transfer
of an Application, information about division of an Application and so forth,
and one or more photos or drawings of the industrial design.
20. Access to detailed information about proper Applications:
Any person
may have access to detailed information about the nature of objects stated in
Applications, or may request the National Office of Industrial Property to supply
such information and the person making the request shall pay a fee in
accordance with the regulations.
Section 5: EXAMINATION OF CONTENTS OF APPLICATIONS
21. Purpose of examination of contents:
The purpose
of examination of the contents of an Application shall be to evaluate the
possibility of protection of the object stated in the Application in accordance
with protection criteria and to determine the respective scope (quantity) of
protection.
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22.1 When
conducting an examination of contents, the National Office of Industrial
Property shall refer to information in the minimum information sources
stipulated in clause 33.2 of this Circular in order to make comparisons and
assess the object stated in an Application in accordance with protection
criteria.
22.2 When
conducting an examination of contents of an Application with priority right,
the National Office of Industrial Property may use results of information from
references and results of examination of the corresponding Application filed
overseas. The applicant may provide the National Office of Industrial Property
with the following information to assist an examination of contents:
(a) Results
of information from references or of examination of the Application filed
overseas for the object stated in an Application;
(b) Copy
Patent or other Certificate of protection already issued on the basis of the
Application filed overseas for the object stated in the Application;
23. Consideration of opinion of third parties:
During the
process of conducting an examination of contents of an Application, the
National Office of Industrial Property must consider the opinion of third
parties (if any) which support or oppose the issuance of a Certificate of
protection. The National Office of Industrial Property must notify any third
party of whether or not the third party's opinion is accepted, and must specify
reasons if the opinion is not accepted.
24. Requests to correct formal deficiencies and to explain
contents of Applications:
24.1 During
the process of conducting an examination of contents of an Application, the
National Office of Industrial Property shall have the right to require the
Applicant to explain contents of Application documents or to correct formal
deficiencies of the Application. If the Applicant fails to satisfy the request,
the Application shall be deemed to have been withdrawn and consideration of the
Application shall discontinue.
24.2 The
National Office of Industrial Property shall not require the Applicant to
provide information beyond the scope of the nature of the object stated in the
Application, and in particular shall not require the provision of information
which the Applicant wishes to remain confidential.
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25. Suspension of examination of contents:
25.1 An
examination of contents shall be suspended in the following circumstances:
(a) The
Application does not clearly express the nature of the object: the documents
concerning the nature of the object such as the Description, Request for
protection and the Drawings (or photos) lack information to the extent that it
is impossible to define the nature of the object, or the information about the
nature of the object is inconsistent to the extent that it is impossible to
define the object;
(b) The
object is inconsistent with the request for issuance of a patent for an
industrial design, or the object is an object which is not protected by the
State as stipulated in article 787 of the Civil Code and in article 5.3 of the
Decree;
(c) The
Applicant requests suspension of examination of contents or provides a
declaration of withdrawal of the Application.
25.2 The
National Office of Industrial Property must notify an Applicant of any
suspension of examination of contents and the reasons for such suspension by
conducting the same procedures which apply to notice of results of an
examination of contents set out in clause 28 of this Circular (unless it was
the Applicant who requested the suspension).
26. Complaints about suspensions; re-establishment of an
examination of contents:
26.1 An
Applicant shall have the right to oppose the reasons for suspension of an
examination of contents and the National Office of Industrial Property shall deal
with the Applicant's complaint in accordance with the procedures in section 3
of Chapter 4 of this Circular.
26.2 If the
result of dealing with the Applicant's opinion shows that the opinion is
legitimate, the National Office of Industrial Property shall re-establish the
examination of contents and in such a case the National Office of Industrial
Property shall not be permitted to extend the time-limit for the examination of
contents.
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27.1 The
contents of an assessment of an object in accordance with protection criteria
shall be a determination of whether or not the object stated in the Application
is consistent with the request for the issuance of a Patent for the industrial
design, and if consistent then the object shall be assessed pursuant to each
protection criteria in turn.
27.2 The
assessment in accordance with protection criteria shall be conducted for each
object in turn (if the Application contains a number of objects and uniformity
has been ensured), and each object shall be assessed pursuant to each
protection criteria in turn as stipulated in detail in Chapter 3 of this
Circular.
An assessment
shall be conducted of each product (if the Application refers to a set of
products), and where an Application refers to a number of plans then the
assessment shall commence from basic plans.
27.3 The
assessment of each object shall be terminated if:
(a) There are
grounds for concluding an object does not satisfy one of the protection
criteria (in which case the examination of contents shall terminate with the
conclusion that the object does not satisfy the protection criteria).
(b) There are
no grounds for concluding an object does not satisfy any one of the protection
criteria (in which case the examination of contents shall terminate with the
conclusion that the object does satisfy the protection criteria).
28. Notice of results of examination of contents:
28.1 The
National Office of Industrial Property must notify an Applicant of the results
of the said examination, specifying which object satisfies the protection
criteria and which object fails to satisfy the protection criteria.
28.2 If an
object stated in the Application is inconsistent with the request for the
issuance of a Patent for an industrial design, or if the object is consistent
but fails to satisfy the protection criteria, the notice of results of the
examination of contents shall specify an intention to refuse issuance of a
Patent and the reasons for refusal, and shall also fix a time-limit of 2 months
from the date of the notice for the Applicant to provide its opinion. If the
scope (quantity) of protection is too wide, the notice must also specify the
reasons therefor and indicate an intention to narrow the scope (quantity) of
protection.
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28.4 If an
object satisfies the protection criteria, or if in the cases stipulated in
clauses 28.2 and 28.3 above the Applicant has narrowed the scope (quantity) of
protection so that the object now satisfies the protection criteria, or if the
Applicant has rectified deficiencies and/or provided a legitimate reason
opposing [refusal to issue], then the notice of results of the examination of
contents shall fix a time-limit within which the Applicant should pay the fee
for announcement of a Patent , the registration fee and the fee for maintaining
the validity of the Certificate for the first year. The above time-limit shall
be one month from the date the Applicant receives the notice or two months from
the date of issuance of the notice, whichever is the earlier.
28.5 If
within the fixed time-limit the Applicant fails to rectify deficiencies as
requested and/or fails to provide an opinion opposing [refusal to issue] then
the National Office of Industrial Property shall refuse to issue a Patent.
Where the
notice of results of the examination of contents fixes a time-limit for payment
of fees as prescribed in clause 28.4 above but the Applicant fails to pay
within time the fee for announcement, the registration fee and the fee for
issuance of a Patent, then the National Office of Industrial Property shall
refuse to issue a Patent.
28.6 If an
Application contains a number of objects only one of which falls within the
category in clause 28.5 above, then the refusal to issue a Patent shall only
apply to that one object (and a Patent shall be issued for the remaining
objects).
29. Time-limits for examination of contents:
29.1 The
time-limit for examination of contents of an Application shall be six (6)
months from the date of announcement of the Application.
29.2 If
during the process of conducting the examination of contents of an Application
the Applicant on its own initiative or at the request of the National Office of
Industrial Property amends or supplements documents, the time-limit for
examination of contents of an Application shall be extended by one month. If an
application is amended or supplemented at the request of the National Office of
Industrial Property, the period which was reserved for the Applicant to amend
or supplement documents shall not be included in the time-limit for examination
of contents.
29.3 Prior to
the last day of the time-limit for examination of contents, the National Office
of Industrial Property shall send notice of the results of the examination of
contents to the Applicant in accordance with clause 28 of this Circular.
Section 6: AMENDMENT OF APPLICATIONS
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30.1 Prior to
the National Office of Industrial Property providing notice of refusal to
approve an Application or notice of refusal to issue a Patent or prior to the
National Office of Industrial Property issuing a decision to issue a Patent, an
Applicant may amend or add to the Application documents either on its own initiative
or at the request of the National Office of Industrial Property, including
dividing the Application (by separating one or more of the industrial designs
in an Application for an industrial design).
The applicant
shall file a set of documents as amended together with an explanation of the
amendments compared to the original version, and shall also pay a fee in
accordance with the regulations.
30.2 Any
amendment or addition to the Application may not extend the scope (quantity) of
protection beyond the contents disclosed in the Descriptive section and may not
change the nature of the object stated in the Application. If amendments or
additions extend the scope (quantity) of protection or change the nature of the
object, then the Applicant must file a new Application and all procedures must
be re-conducted from the beginning.
30.3 Divided
Applications shall retain the original date of filing the Application and the
original priority date/s. With respect to each divided Application, the
Applicant shall pay an application filing fee and all other fees for procedures
which are carried out independently of the original Application, but need not
pay an additional fee for requesting entitlement to priority right. Divided
Applications shall be examined for form and shall continue to be dealt with in
accordance with procedures not yet completed on the initial Application. The
date of filing a request to divide an Application shall be deemed to be the
date of amendment and addition to the initial Application for the purpose of
calculating the time-limit for examination of contents. The initial Application
(after it has been divided) shall continue to be dealt with in accordance with
the usual procedures and the applicant must pay a fee for amendment and
addition to an application.
30.4 An
Applicant may request recognition of a change of the Applicant's name and
address and a change of Applicant (assignment of Application or transfer of
rights to the Application as a result of inheritance, merger or demerger of a
legal entity, or pursuant to a court verdict and so forth). Any request for
recognition of a change shall be made in writing and the Applicant must pay a
fee in accordance with the regulations. One letter may request recognition of
one item of change of the same contents appearing in a number of Applications,
on condition that the Applicant must pay a fee for each of the Applications.
Chapter 3
ASSESSMENT OF OBJECTS IN
ACCORDANCE WITH PROTECTION STANDARDS
31. Assessment of whether objects stated in Applications are
consistent with the request for the issuance of a Certificate of exclusive
right to the industrial design:
31.1 The
external appearance of a product - the object to be protected with the title of
an industrial design - means the essential and complete collection of aesthetic
special characteristics of the external components being cubic, linear and
colour components of the relevant product.
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32. Assessment of ability to use an industrial design as a model
for manufacturing products:
32.1 Pursuant
to article 5.2 of the Decree, an industrial design shall be deemed capable of
being used as a model for manufacturing industrial products or handicrafts if
products with the external appearance of such industrial design may be put into
mass production.
32.2 In the
following cases, an object stated in an Application shall be deemed incapable
of being used as a model for manufacturing products with the same external
appearance as that object:
(a) If the
object stated in the Application has the appearance of a product in an unstable
state (the object has an unstable appearance);
(b) If a
product with the appearance of the object stated in the Application can only be
created with special techniques or the creation of products with the same
appearance as that stated in the Application does not occur repeatedly;
(c) If
[products] have different appearance for discernable reasons.
33. Assessment of the novelty of industrial designs:
33.1 An
industrial design stated in an Application shall be deemed to be new if it
satisfies the conditions set out in article 5.1 of the Decree.
33.2 Minimum
mandatory information sources:
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- All
industrial designs announced by the National Office of Industrial Property with
a priority date earlier than the priority date stated in the Application;
- All
industrial designs and Certificates of protection of industrial property rights
with respect to industrial designs which other organizations and countries
announced within twenty five (25) years before the priority date stated in the
Application and archived in the industrial designs database at the National
Office of Industrial Property;
- Other
information concerning industrial designs collected and retained by the
National Office of Industrial Property.
(b) In necessary
and possible cases, reference shall be extended beyond the minimum mandatory
information sources.
33.3 Basic
special shaping features of an industrial design:
(a) Basic
special shaping features of an industrial design means specified elements of
its cubic, linear and colour features and of the correlation of positions or
correlation of measurements together with other elements which create the
necessary and complete collection which determines the nature of that
industrial design;
(b) The
following elements shall be deemed not to be basic special shaping features of
an industrial design:
- The cubic
and linear features which are decided by the technical function or use function
of the product, for example the flat shape or plane surface of a disk containing
data which is decided by the relative movement between the disk and its fixed
structure and so forth;
- Elements
whose existence in the collection of signs are insufficient to cause any
aesthetic effect (the appearance of the product remains unchanged whether or
not those elements are present), for example there is a change in a familiar
cubic or linear feature but such change is insufficient to be perceptible so
that the changed cubic or linear feature is still perceived as the old cubic or
linear feature;
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33.4
Reference to confronting information and industrial designs and Report on
references:
(a) The
objective of referring to information shall be in order to find overlapping
industrial designs or the closest similar industrial design to the industrial
design stated in the Application, in which:
- Two
industrial designs shall be deemed to overlap if they have an identical
collection of basic special shaping features;
- Two industrial
designs shall be deemed to be similar if the majority of the basic special
shaping features in each of the two collections are the same.
(b)
Confronting industrial design:
The
confronting industrial design means the nearest overlapping or similar
industrial design (the one with the most overlapping basic special shaping
features in a fixed collection) to the industrial design stated in the
Application.
(c) Result of
references:
The result of
references shall be expressed in a Reference Report specifying the field in
which reference was made, the scope of reference and the results found within
that scope (statistics on the industrial designs found, details on sources of
announcements and information, dates of announcements or disclosures), and the Report
shall bear the full name of the person preparing it (the person who conducted
the references).
33.5
Conclusion on the novelty of an industrial design:
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(b) The
industrial design stated in the Application shall be deemed to be new if:
- A
confronting industrial design is not found in the minimum information sources;
or
- A
confronting industrial design is found in the minimum information sources but
the industrial design stated in the Application has at least one basic special
shaping feature which is not in the collection of basic special shaping
features of the confronting industrial design, and
- The
industrial design is not the external appearance of a product which is widely
known (it is not a positional change or an assembly or association of special
characteristics of an already well known industrial design; or it does not bear
the natural appearance of flora and fauna and so forth, or the appearance of
well known geometrical shapes (such as circular, elliptical, triangular,
square, rectangular or polygonal shapes, or prismatic forms of the above shapes
which appear in profile and so forth); it is not the appearance of famous
products or buildings in Vietnam or overseas (such as the Tortoise Tower on the
Lake of the Returned Sword [symbol of Hanoi]; the statue of the god of
Happiness, Wealth and Longevity; the Eiffel Tower and so forth); or it is not
an industrial design which only has aesthetic value such as products being sculptures,
all types of paintings and statues and so forth).
34. Conclusion on whether industrial designs are capable of
being protected; determination of scope (quantity) of protection:
34.1 If there
is no reason for confirming that the industrial design stated in an Application
fails to satisfy at least one of the protection standards, the National Office
of Industrial Property shall conclude that such industrial design satisfies all
the protection standards (satisfies all the standards for issuance of a Patent
for the industrial design). In the opposite case, the National Office of
Industrial Property shall conclude that the industrial design fails to satisfy
the protection standards and shall refuse to issue a Patent for the industrial
design.
34.2 Where
the industrial design satisfies all the protection standards, the object or
scope (quantity) of protection shall be fixed in accordance with the Request
for protection and shall include a presentation of the different shaping
features of the industrial design in the form of drawings and/or photos.
Chapter 4
ISSUANCE, REGISTRATION,
SUSPENSION, RESCISSION OF EFFECTIVENESS OF CERTIFICATES OF PROTECTION, AND
COMPLAINTS ABOUT CERTIFICATES OF PROTECTION
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35. Issuance of Certificates of protection:
35.1 Within a
time-limit of ten (10) days from the date an Applicant pays all the fees
stipulated in clause 28.4 on time, the National Office of Industrial Property
shall conduct procedures for issuance of a Certificate of protection pursuant
to articles 23 and 26 of the Decree.
If after
being issued with a Certificate of protection the owner considers the
Certificate contains an error, the owner shall have the right to request the
National Office of Industrial Property to amend the Certificate. If the error
was the fault of the owner, the owner shall pay a fee for amendment. If the
error was the fault of the National Office of Industrial Property, the owner need
not pay any fee. The above-mentioned amendment shall not change the nature,
object or scope (quantity) of protection.
35.2 As from
the date the National Office of Industrial Property issues a decision to issue
a Certificate of protection, the applicant shall not be permitted to assign the
Application to another person. If a contract of assignment of the Application
has been signed between the applicant and another person but procedures have
not yet been conducted at the National Office of Industrial Property, such
contract must be converted to a contract of transfer of ownership of an
industrial design pursuant to a new Certificate of protection which is
recognized.
36. Right to request issuance and re-issuance of copies of
Certificates of protection and right to request re-issuance of Certificates of
protection:
36.1 If
industrial property ownership is general ownership and the National Office of
Industrial Property is unable to hand over Certificate/s of protection to the
owners in common pursuant to article 26.3 of the Decree, the owners may file an
application with the National Office of Industrial Property for issuance of a
Copy certificate of protection on condition that they pay a fee for same.
36.2 In the
following circumstances an industrial property owner who has been issued with a
Certificate of protection (including a Copy certificate of protection) may file
an application with the National Office of Industrial Property for re-issuance
of a Certificate of protection or Copy certificate of protection on condition
that the owner pays a fee for same:
(a) Where a
Certificate of protection or Copy certificate of protection has been lost, on
condition that a legitimate reason is provided;
(b) Where a
Certificate of protection or Copy certificate of protection has been damaged
(torn, smeared or faded to the extent it is no longer useable) on condition
that the damaged certificate is handed in.
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An
application file requesting issuance or re-issuance of a copy Certificate of
protection or requesting re-issuance of a Certificate of protection shall
comprise:
(a) Declaration
requesting issuance or re-issuance of a copy Certificate of protection or
requesting re-issuance of a Certificate of protection (prepared in accordance
with the sample form in the appendix to this Circular);
(b) Written
explanation of the reason why the Certificate or copy Certificate was lost or
destroyed (in the case of a request for re-issuance of a Certificate or copy
Certificate);
(c) Power of
attorney (if the application is filed by a representative);
(d) Voucher
proving payment of fee for issuance of a Certificate or copy Certificate.
38. Processing application files requesting issuance or
re-issuance of copies of Certificates of protection and requesting re-issuance
of Certificates of protection:
38.1 The
National Office of Industrial Property shall consider application files
requesting issuance or re-issuance of copies of Certificates of protection and
requesting re-issuance of Certificates of protection within one month from the
date of their receipt. Where a file satisfies the above-mentioned requirements,
the National Office of Industrial Property shall issue a decision to issue or
re-issue a copy Certificate of protection or a decision to re-issue a
Certificate of protection and record it in the relevant chapter on registration
of the particular Certificate of protection in the National Register.
38.2 The
contents of a copy Certificate of protection shall fully record all information
from the corresponding Certificate of protection. The contents of a re-issued
Certificate of protection or copy Certificate of protection shall fully record
all information from the initially issued certificate and shall be marked
"Copy document" or "Re-issued document".
38.3 If an
application file fails to satisfy the requirements set out in clause 37 of this
Circular, the National Office of Industrial Property shall issue a notice of
refusal to issue a copy Certificate of protection or a notice of refusal to
re-issue a Certificate of protection, specifying the reasons therefor.
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39. National register of industrial designs:
39.1 The
national register (Register) of industrial designs shall be the official and
publicly available database which records complete information on the legal
status of industrial property rights applicable to industrial designs which
have been certified by the State.
39.2 The
Register of industrial designs shall include items relating to each Certificate
of protection, each item to include information on the Certificate of
protection (number, date of issuance, name of object protected, scope
(quantity) of protection, duration of effectiveness, name and address of the
owner of the Certificate and full name of the author); information on the Application
requesting issuance of the Certificate of protection (number of Application,
date of filing, priority date, and name of any industrial property
representative service organization); information about amendments to the
Certificate of protection, the status of its effectiveness (maintained
effectiveness, suspended effectiveness and rescinded effectiveness); transfer
of ownership of or of use right to the industrial design; date of issuance or
re-issuance of copy Certificate of protection or date of re-issuance of
Certificate of protection and name of person issuing same.
40. Announcement of decisions to issue Certificates of
protection:
Every
Certificate of protection which is issued by the National Office of Industrial
Property shall be announced in the Official Industrial Property Gazette within
2 months of the date of the Decision [on issuance]. The Applicant must pay a
fee for the announcement.
The
information to be announced shall be all the information in the relevant
Decision, and one or a number of photos or drawings of the industrial design.
Section 3: COMPLAINTS ABOUT PROCEDURES FOR ISSUANCE OF
CERTIFICATES OF PROTECTION
41. Who has the right to complain, the object of a complaint and
the limitation period for lodging complaints:
41.1 The
persons with the right to complain as prescribed in article 27.1 of the Decree
within the limitation period prescribed in article 27.3 of the Decree shall
have the right to conduct compliant procedures in respect of Notices of
official refusal and Decisions by the National Office of Industrial Property
concerning registration of industrial designs.
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42. Complaint files:
42.1 General
requirements:
Complaint
files must satisfy the formal requirements stipulated in clauses 5.1(a) to
5.1(e) inclusive of this Circular, and each complaint shall mention only the
one Notice or Decision which is complained of. Each complaint file may mention
a number of Notices or Decisions if all the latter have the same contents and
provide the same reason for the complaint, on condition that the complainant
must pay a fee in accordance with the regulations for each Decision or Notice
which is complained of.
42.2
Complaint files must include the following documents:
(a)
Declaration of complaint, prepared in accordance with the sample form in the
appendix to this Circular;
(b) Copy of
the Decision or Notice which is complained of;
(c) Copy of
the Decision resolving the first complaint (in the case of a second complaint);
(d) Evidence
proving the reason for the complaint (if necessary);
(e) Power of
attorney (if the application is filed by a representative);
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42.3 Evidence
means documents (evidence in writing) or objects (evidence in the form of
objects) used to prove or clarify the reasons for the complaint.
Evidence must
satisfy the following requirements:
(a) Evidence
in writing may be documents in a foreign language on condition that a
Vietnamese translation is provided if the person authorized to resolve the
complaint so requests;
(b) Where
evidence in writing is a document provided by an individual or organization
without a seal or by a foreign individual or organization in the name of the
underwriter who has given his name to the document, then the signature must be
certified by the public notary or a competent authority;
(c) Where
evidence is in the form of an object (a publication, a video and so forth) then
depending on each specific case the country of origin of the object or of the
information contained in the object must be specified, and the date when the
object or information contained in the object was published or announced must
also be clarified;
(d) In the
case of evidence in the form of objects, there must also be a document
describing special points directly related to the contents of the complaint.
43. Responsibilities of complainants:
Complainants
must be honest when they provide evidence and they shall be responsible for the
consequences of providing false evidence.
44. Withdrawal of complaints:
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44.2 A
withdrawn complaint shall be deemed not to have been lodged. The complainant
shall not be entitled to return of the compliant file nor to a refund of any
fee paid.
45. Accepting jurisdiction over complaint files:
45.1 Within a
time-limit of 10 days from the date of receipt of a complaint file, the person
authorized to resolve the complaint shall check the file to ensure it complies
with the formal requirements and then issue a notice to the complainant
advising that jurisdiction has been accepted and the date of same, or advising that
jurisdiction has not been accepted and the reasons therefor.
45.2
Jurisdiction shall not be accepted over complaint files in the following
circumstances:
(a) The
complainant does not have the right to lodge a complaint;
(b) The
complaint was lodged outside the limitation period for lodging complaints;
(c) The
complaint file fails to satisfy the requirements stipulated in the clauses
above.
46. Related parties:
46.1 Where
jurisdiction is accepted, the person authorized to resolve the complaint shall
issue a notice on the contents of the complaint to persons with rights and
interests which are directly effected ("related parties"), fixing a
time-limit of 2 months from the date of the notice for such parties to provide
their opinions.
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46.3 If a
related party/ies has not provided an opinion at the expiry of the
above-mentioned time-limit, the complaint shall be resolved on the basis of the
complainant's opinion.
47. Decision on resolution of a complaint:
The person
authorized to resolve the complaint shall rely on the arguments and evidence of
the complainant and of related parties in order to issue a decision on
resolution of the complaint within the time-limit stipulated in article 27.4 of
the Decree.
Prior to
issuing a decision on resolution of the complaint, the person authorized to
resolve the complaint shall issue a notice to the complainant and related
parties about the arguments and evidence of the complainant and of related
parties which have been used to resolve the complaint and stating the decision
it is proposed to issue, and fixing a time-limit of 2 months from the date of
the notice for the said parties to provide their opinions.
The period
reserved for the complainant and related parties to provide arguments and
evidence at the request of the person authorized to resolve the complaint shall
not be included in the time-limit for resolution of the complaint.
48. Effectiveness of decisions resolving complaints:
Any
procedures concerning industrial property which depend on the result of
resolution of a complaint shall only be conducted on the basis of:
A decision
resolving a first complaint if the complainant does not lodge a second complaint
or institute administrative procedures; or a decision resolving a second
complaint or a court decision if the complainant lodges a second complaint or
institutes administrative procedures.
Section 4: SUSPENSION AND RESCISSION OF EFFECTIVENESS OF CERTIFICATES
OF PROTECTION
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At any time
during the validity of a Certificate of protection, any person shall have the
right to apply for suspension or rescission of validity of such Certificate
pursuant to articles 28 and 29 of the Decree and in accordance with the order
and procedures set out in this Section.
50. Application files for suspension or rescission of validity
of Certificates of Protection:
50.1 Application
files for suspension or rescission of validity of Certificates of Protection
must satisfy the formal requirements stipulated in clauses 5.1(a) to 5.1(e)
inclusive of this Circular.
50.2 Any one
application file may request suspension or rescission of validity of a number
of Certificates of Protection when the same reason applies to each, on
condition that the applicant must pay a fee for each Certificate of Protection
referred to.
50.3.
Application files for suspension or rescission of validity of Certificates of
Protection shall include the following documents:
(a)
Declaration requesting suspension or rescission of validity of a Certificate of
Protection, prepared in accordance with the sample form in the appendix to this
Circular;
(b) Evidence
(if any);
(c) Power of
attorney (if the Application is filed by a representative);
(d) Voucher
proving payment of fee.
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51.1
Application files for suspension or rescission of validity of Certificates of
Protection shall be dealt with in the same order as for resolution of
complaints set out in clauses 45 to 48 inclusive of this Circular.
51.2 If an
applicant or a related party disagrees with the conclusion of the National
Office of Industrial Property on the request for suspension or rescission of
validity of a Certificate of Protection, such applicant or related party shall
have the right to make a complaint about the Decision or Notice in accordance
with the procedures set out in clauses 45 to 48 inclusive of this Circular.
51.3 The
contents of any suspension or rescission of validity of a Certificate of
Protection shall be announced in the Official Industrial Property Gazette and
shall be recorded in the national register of industrial designs.
51.4 If the
applicant who requests suspension or rescission of validity of a Certificate of
Protection is the owner of the Certificate, the National Office of Industrial
Property shall consider whether or not the application effects the rights of
third parties (whether or not there is a currently an effective licence
contract in respect of the relevant object) and if so then the National Office
of Industrial Property shall not deal with the request pursuant to the procedures
set out in clauses 51.1 and 51.2 of this Circular.
Chapter 5
AMENDMENT OF
CERTIFICATES OF PROTECTION, EXTENSION OF VALIDITY OF CERTIFICATES OF PROTECTION
Section 1: AMENDMENT OF CERTIFICATES OF PROTECTION
52. Right to request amendment of Certificates of protection:
An owner of a
Certificate of protection shall have the right to request the National Office
of Industrial Property to record each change of the owner's name and address
and any change in the owner of a Certificate of Protection (assignment of
ownership as a result of inheritance, merger, division or conversion of legal
form of a business establishment pursuant to a court verdict and so forth). Any
beneficiary of the owner's rights shall also have the right to request that
changes concerning the owner of a Certificate of Protection be recorded.
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53. Applications for amendment of Certificates of protection:
In order to
amend the above-mentioned items, the owner of a Certificate of protection must
file an application with the National Office of Industrial Property, the file
to comprise:
(a)
Declaration requesting amendment to the Certificate of protection (prepared in
accordance with the sample form in the appendix to this Circular);
(b) Original
Certificate of protection;
(c) Documents
verifying the change in ownership where the request is to record same (certificate
of inheritance, certificate of merger, separation or conversion of legal
entity, court decision and so forth);
(d) Voucher
proving payment of fee for amendment of Certificate of protection;
(e) Power of attorney
(if the application is filed by a representative).
54. One application for amendment of a number of Certificates of
protection:
One
application may be made for amendment of a number of Certificates of protection
and may be consolidated with the applications prescribed in clauses 30.1, 30.2
and 30.4 of this Circular if it concerns the same changes or amendments, on
condition that the Applicant must pay a fee for each Certificate of protection
or Application.
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The National
Office of Industrial Property shall consider an application file requesting
amendment of a Certificate of protection within one month from the date of its
receipt. Where a file is considered proper, the National Office of Industrial
Property shall make the change to the Certificate of protection and the
register, and shall announce it in the Official Industrial Property Gazette. In
the opposite case, the National Office of Industrial Property shall send the applicant
a notice of intention to refuse the change with reasons therefor, and shall fix
a time-limit of 2 months from the date of the notice for the Applicant to
rectify deficiencies or provide its opinion opposing such intention. If within
such time-limit the applicant fails to rectify deficiencies or fails to rectify
the deficiencies to the extent required and/or fails to provide an opinion
opposing [the intention] or fails to provide a legitimate reason opposing [the
intention], then the National Office of Industrial Property shall issue an
official notice refusing the application.
Section 2: EXTENSION OF VALIDITY OF CERTIFICATES OF PROTECTION
56. Conditions for extension:
In order to
extend the validity of a Certificate of protection for an industrial design,
the owner of the Certificate must file an application for extension with the
National Office of Industrial Property within six (6) months prior to the date
of termination of validity of the certificate.
The
application for extension may be filed later than the time period stipulated
above but not more than six months after expiry of the previous period of
validity and the Applicant must pay an additional ten (10) per cent of the
extension fee for each month of delay in filing.
57. Application file for extension:
An
Application file for extension of validity of a Certificate of protection shall
comprise:
(a)
Declaration requesting extension of validity of a Certificate of protection
prepared in accordance with the sample form in the appendix to this Circular:
(b) Original
Certificate of protection (in the case of an application for recording
extension onto the Certificate);
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(d) Power of
attorney (if the application is filed by a representative).
58. Dealing with applications for extension:
The National
Office of Industrial Property shall consider an application file requesting
extension within one month from the date of its receipt, and shall issue an
extension Decision and record it on the Certificate of protection where the
owner so requests, register the extension and publish it in the Official
Industrial Property Gazette where the application is outside the following
cases:
(a) The
application file is improper or the stipulated fees are not paid;
(b) The applicant
for extension is not the owner of the relevant Certificate of protection.
If the
application falls into one of the above cases, the National Office of
Industrial Property shall send the applicant a notice of intention to refuse
the application for extension stating the reasons therefor and fixing a
time-limit of 2 months for the Applicant to rectify deficiencies or provide its
opinion opposing such intention. If within such time-limit the applicant fails
to rectify deficiencies or fails to provide a legitimate reason opposing [the
intention], then the National Office of Industrial Property shall issue an
official notice refusing the application.
Chapter 6
COLLECTION AND REFUND OF
FEES; EXTENDING AND SHORTENING TIME-LIMITS
59. Collection of fees:
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If the
Applicant has failed to pay the stipulated fee in full, the National Office of
Industrial Property shall prepare a fee notification slip recording the rate
and amount payable and send it to the Applicant. A fee payer shall be issued
with two counterfoil receipts for any fee paid, the receipts shall record the
rate and amount paid, and when an Applicant submits a file or Application then
the Applicant shall submit one counterfoil receipt as the voucher proving
payment of the fee.
60. Refund of fees:
All fees paid
shall be repaid in full or in part on the request of the payer in the following
circumstances:
(a) When the
fee paid exceeded the stipulated amount;
(b) In the
circumstances stipulated in the second paragraph of article 32.2 of the Decree.
61. Form of refund of fees:
An Applicant for
a refund of fees may choose one of two methods of refund: Direct refund at the
National Office of Industrial Property or via an agent for collection and
distribution (post office, bank and so forth). If a fee is refunded via an
agent for collection and distribution, the Applicant shall be liable for
transmission costs. An Applicant for a refund of fees shall submit a
Declaration requesting a refund of fees prepared in accordance with the sample
form in the appendix to this Circular, and specifying which of the two methods
of refund the Applicant chooses.
Where the
National Office of Industrial Property approves a request for refund of fees,
it shall send the Applicant a notice specifying the amount of the refund and
the method of refund, which notice shall be signed by the Applicant on receipt
of the refund.
In the case
where a request for refund of fees is not approved, the National Office of
Industrial Property shall send the Applicant a notice specifying the reason
therefore.
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The time
periods reserved for amending or supplementing documents as requested by the
National Office of Industrial Property, for refutation of opinions and for
opposing an intention expressed by the National Office of Industrial Property
may be extended once for the same period as the original time-limit at the
request of the person conducting the relevant procedure, on condition that such
person must pay a fee for the extension (a fee for consideration of a file out
of time).
63. Shortening time-limits:
Any person
conducting procedures at the National Office of Industrial Property or at any
other authorized body may make a request that such Office or body complete the
procedures earlier than the stipulated time-limit, on condition that such
person must pay a fee for consideration of a file earlier than the stipulated
time-limit.
The National
Office of Industrial Property or any other authorized body may agree or not
agree to a request that such Office or body complete procedures earlier than a
stipulated time-limit, depending on the capability of and conditions at such
Office or body.
Chapter 7
FINAL PROVISIONS
64. Responsibilities of people carrying out civil service duties
regarding industrial property:
64.1 Staff of
the National Office of Industrial Property or any other authorized body
including people working for the said Office or body pursuant to contract to
whom jobs are assigned and who carry out the procedures set out in this
Circular (hereinafter referred to as people carrying out civil service duties
regarding industrial property) shall be obliged to comply with the laws
relevant to the work they do.
64.2 People
carrying out civil service duties regarding industrial property rights who
breach the law shall be disciplined pursuant to Decree No. 97-1998-ND-CP of the
Government dated 17 November 1998 on disciplinary penalties applicable to civil
servants and the liability of civil servants for material damage.
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65. Complaints:
In addition to
the right to complain about Decisions and Notices relevant to procedures for
determination of rights, people carrying out civil service duties regarding
industrial property rights as prescribed in this Circular shall also have the
right to complain or institute proceedings about other Decisions and Notices
made by the National Office of Industrial Property or other authorized bodies
in accordance with the laws on complaints, denunciations and administrative
proceedings.
The order and
procedures for complaints and for resolution of complaints as stipulated in
article 27 of the Decree and in clauses 45 to 48 inclusive of this Circular
shall, with appropriate changes, apply to complaints about the above-mentioned
Decisions and Notices.
66. Regulations on Applications and on order for conducting
procedures for registration of industrial designs:
The Ministry
of Science & Technology shall, in a separate document, issue Regulations on
Applications and on order for conducting procedures for registration of industrial
designs which are consistent with the provisions in the Decree and in this
Circular.
67. Effectiveness:
This Circular
shall replace the provisions on procedures relating to establishment of
industrial property rights with respect to industrial designs in Circular No.
3055-TT-SHCN of the Ministry of Science, Technology & Environment dated 31
December 1996.
This Circular
shall be of full force and effect fifteen (15) days after the date of its
proclamation in the Official Gazette.
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FOR
THE MINISTER
MINISTRY OF SCIENCE & TECHNOLOGY
DEPUTY MINISTER
Bui Manh Hai
