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THE
COUNCIL OF MINISTER
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SOCIALIST
REPUBLIC OF VIET NAM
Independence
- Freedom Happiness
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85-HDBT
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Ha
Noi, May 13th, 1988
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DECREE
ON INDUSTRIAL DESIGNS (PROMLGATED BY DECREE NO.85-HDBT OF
MAY 13
Chapter I
GENERAL PROVISIONS
Section 1
(1) This
Decree is promulgated to encourage the State organizations, enterprises,
semi-sate enterprises, the Socialist economic collectives (hereinafter :
organizations, units) and every citizen in research, creation and extensive
utilization of new industrial designs for the manufacture of products and
better satisfying the demand of the material and cultural life of the
Community.
(2) This Decree specifies and
protects the rights related to the creation and utilization of industrial
designs.
Section 2
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Section 3
An
industrial design shall be recognized as new if, prior to the priority date of
the application for
Section 4
The
following designs shall not be protected under this Decree:
a - Designs of industrial or
civil buildings;
b - Designs of products
invisible in the process of utilization;
c - Designs determined merely by
the functions of products or destinated merely to solve a technical task;
d - Designs of products having
only an aesthetic value;
e - Industrial designs that are
contrary to public order or socialist morality.
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(1)
Natural persons or legal entities of foreign countries enjoy the same rights
and benefits provided for in this Decree as Vietnamese persons or entities on
the principle of equality, reciprocity and in accordance with the International
Treaties to which Vietnam
is a party.
(2) Natural persons or legal
entities of foreign countries wishing to secure legal protection of their
industrial designs in Vietnam
shall apply through the agencies authorized by competent state authorities and
approved by the National Office on Inventions.
Chapter II
LEGAL PROTECTION OF
INDUSTRIAL DESIGNS
Section 6
(1) The
state recognizes and protects ownership right in industrial designs of
organizations, natural persons whose industrial designs are registered under
this Decree; legitimate rights and interests of creator of industrial designs.
(2) The industrial design
protection title is a certificate of industrial design. The certificate of
industrial design certifies: the owner of the certificate of industrial design
(hereafter "owner of
Section 7
The
priority of an application for registration of industrial design shall be
determined by the priority date. The priority date is:
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(2) The date of the filing of
the first application for registration in another country on the basis of the
international convention for the protection of industrial property to which
Vietnam is a party.
(3) the date of the public
presentation of the industrial designs at an international official or
officially recognized exhibition organized on the territory of any country
party to the Paris convention for the protection of industrial property,
provided the application for registration of that design is filed with within 6
months following the date on which the industrial design was displayed.
Section 8
(1) The
status of creator of industrial design shall belong to the person whose
creative work caused the industrial designs to be made.
(2) If the industrial design is
the result of the creative work of two or more persons they all shall be
recognized as joint creators of that industrial design.
shall not be
recognized as joint creators of that industrial design.
Section 9
The owner
of an industrial design refers to the organization or natural person to whom a
certificate of industrial design is granted or the ownership right in
industrial design is transferred.
Section 10
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(2) In the case of the
industrial designs that is made in the course of fulfillment of creator's duty
within the organization, unit, or the industrial design for the making of which
the creator has received assistance from organization, unit (hereinafter
referred to as "service industrial design"), the said organization,
unit is entitled to file an application for registration of that industrial
design. The creator of service industrial design shall notify in writing the
organization, unit about the industrial design created by
If within two months following
the date of notification, that organization, unit has not undertaken the filing
of the application for registration, the creator shall have the right to file
an application for registration of that industrial design.
(3) The right to file an
application for registration of an industrial design made in execution of a
scientific and technological research and development contract shall belong,
unless otherwise expressly stipulated by the contract, to the employing party.
(4) The right to file an
application for registration of an industrial design made in a unit which
applies a labour contract shall belong, unless otherwise expressly stipulated
by the labour contract, to that unit.
(5) The applicant for
registration of industrial design shall pay a fee for filing an application for
registration of industrial design (application fee).
Section 11
The
creator of industrial design (including the creator of industrial design
mentioned in Subsection (3), Section 10 may authorize a natural person or legal
entity, wishing to utilize the industrial design, to file an application for
registration of industrial design.
Section 12
Unles
otherwise expressly stipulated by the international treaties to which Vietnam
is a party, any organization, natural person may apply for registration of an
industrial design in foreign countries after having filed an application for
registration of that industrial design in Vietnam.
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(1) The
term of validity of certificate of industrial design shall be 5 years following
the priority date of application. The owner of industrial design shall pay a
fee for registration of industrial design (registration fee).
(2) The term mentioned in
Subsection (1) may be prolonged not more than two further consecutive periods
of 5 years of each, provided the owner of the industrial design shall file a
request for renewal and pay a fee related to renewal.
(3) the registration fee and
renewal fee mentioned above in Subsection (1) and (2) as well as other fees
related to the filing of an application, publication of industrial design...
shall be specified by the State Committee for Science and Technology in the
instruction for implementation of this Decree.
(4) The certificate of
industrial design shall lapse prematurely if the owner of industrial design
files a request with the National Office on Inventions for renouncement of the
protection.
Section 14
(1)
During the term of validity of the certificate of industrial design:
a- Nobody may utilize the
industrial design without an authorization of the owner.
b- The owner of an industrial
design shall have the exclusive right to utilize his industrial design in
productive, commercial activities according to the laws of the Socialist
Republic of Vietnam.
(2) The form of the utilization
of industrial design mentioned in Subsection (1) may
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b- Import, advertisement, sale
or utilization of products manufactured on the pattern of the industrial design
in the productive, commercial purposes.
Section 15
(1) The
owner of an industrial design may transfer the ownership right or the right to
utilize that industrial design to other organizations or persons; the transfer
must be in writing and performed in accordance with the legislation in force.
(2) The contract to transfer the
ownership right or the right to utilize the industrial design must be
registered in the National Office on Inventions and the owner of the industrial
design must pay a required fee (fee for registration of contract to transfer
industrial design).
Section 16
(1) Where
the particularly important industrial designs are not utilized by the owner or
their utilization does not meet the requirement of the national economy, and
the organizations, units that need them have been unable to secure the
agreement of the owner of the industrial design to transfer the right to
utilize the industrial design, the Chairman of the State Committee for Science
and Technology may authorize the aforesaid organizations, units to utilize the
industrial design.
(2) In the case referred to in
Subsection (1) of this the party to whom a non-voluntary license
is granted shall pay the owner of industrial design a reasonable compensation
based on the agreement with the owner of industrial design. If the concerned
parties do not reach agreement, they may appeal to the court.
Section 17
(1) The
owner of an industrial design may appeal to the court if his ownership right in
the industrial design is infringed.
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Section 18
The
persons or legal entities having, independently of the applicant, started to
utilize or made preparation for the utilization of an industrial design before
the priority date of the application for registration of the industrial design,
shall have the right to continue the utilization of the said industrial design
but may neither extend that exploitation, nor increase its volume.
Chapter
III
PROCEDURES OF REGISTRATION,
EXAMINATION, GRANT OF CERTIFICATE AND PUBLICATION OF INDUSTRIAL DESIGNS.
Section 19
(1) Each
application shall relate to one industrial design only and may include one or
more alternatives of embodiment of that industrial design;
(2) An application for
registration of industrial design shall comprise of:
a- Request for grant of
certificate of industrial design;
b- Description of industrial
design;
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d- Certificate of contribution
of each joint creator (in case industrial design is created by a collective of
joint creators);
e- Receipt of fee paid for
filing application for registration of industrial design.
(3) If an application for registration
of industrial design is filed by the successor in title, it must be accompanied
by an attestation of successor in title. If an application for registration of
industrial design is filed by an organization or unit authorized by the
creator, it must be accompanied also by
(4) If an application for
industrial design is filed through the agency, it must be accompanied by a
power of attorney of the applicant.
(5) If an applicant wishes to
claim a priority provided for in Subsection (2) Section 7 he shall accompany
the application a request made according to the instruction, and within 3
months following the filing date shall provide the National Office on
Inventions with one copy of the first application certified by the Industrial
Property Office of the receiving country.
(6) If an applicant wishes to
claim an exhibition priority (Subsection (3), Section 7) he shall accompany the
application a request made according to the instruction and a certification of
exhibition organizers.
Section 20
(1)
Within 15 days following the receipt of an application for registration of
industrial design, the National Office on Inventions shall examine the
application as to its conformity with Sections 4 and 19 of this Decree. If the
application satisfies all the requirements, the National Office on Inventions
shall confirm the priority date of the application and publish the industrial
design in the Official Gazette of the National Office on Inventions.
(2) If the application fails to
satisfy the requirements, the National Office on Inventions shall reject the
application and inform the applicant of the reason of refusal.
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(4) The applicant for
registration of industrial design shall pay a requested fee for publication of
industrial design (publication fee)
Section 21
(1)
Within 3 months following the date of publication of an industrial design, any
organization or person may file with the National Office on Inventions a notice
of opposition to the grant of certificate of industrial design, stating the
grounds for opposition.
(2) If within the term provided
for in Subsection (1) no opposition has been filed, the National Office on
Inventions shall grant a certificate of industrial design to the applicant.
(3) In case of an opposition
having been filed, the National Office on Inventions shall inform the applicant
of the grounds of opposition and shall ask the applicant to submit his point of
view within 3 months.If the grounds are not correct the National Office on
Inventions shall grant a certificate of industrial design to the applicant.
(4) In case of refusal to grant
a certificate of industrial design, the National Office on Inventions shall
inform the applicant, indicating the grounds of refusal.
(5) The industrial designs for
which certificates of industrial designs have been granted shall be entered in
the National Register of industrial designs and published in the Official
Gazette issued by the National Office on Inventions of the State Committee for
Science and Technology.
Section 22
(1) In
case when the applicant does not agree with grounds to refuse a grant of
certificate of industrial design (Subsection (4), Section 21) within 3 months
following the date of receipt of notification, the applicant may file an appeal
with the National Office on Inventions.
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(3) If the appellant does not
agree with the decision of the National Office on Inventions he may file
further appeal with the State Committee for Science and Technology. The
decision of the Chairman of the State Committee for Science and Technology
shall be final in respect of such appeal.
Section 23
(1)
During the term of validity of certificate of industrial design, any natural
person or legal entity may file a request with the National Office on Inventions
for renouncement of validity of the certificate of industrial design, if:
a- Certificate of industrial
design miscertified a creator;
b- Owner of industrial design
has no right to receive the certificate of industrial design;
c- The industrial design to
which a certificate has been granted does not meet the requirement referred to
in Sections 2, 3 and 4 of this Decree.
The request must contain
argumentative reason, and the person having submitted such request shall pay a
fee (fee for requesting renouncement of validity). A copy of the request shall
be transmitted to the owner of industrial design for consideration.
(2) Within 3 months following
the receipt of the request for renouncement of validity, the National Office on
Inventions shall settle the request.
(3) In the event of disagreement
with the decision of the National Office on Inventions the parties concerned
may:
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b- File an appeal with the
Competent People's Court if the decision of the National Office on Inventions
concerns the arguments mentioned in paragraph (1.a) and (1.b) above.
(4) Decision of renouncement of
validity of certificate of industrial design shall be published in the Official
Gazette of the National Office on Inventions of the State Committee for Science
and Technology.
Chapter IV
REMUNERATION OF CREATORS
OF INDUSTRIAL DESIGNS
Section 24
(1)
During the term of validity of certificate of industrial design, the owner of
an industrial design shall be responsible to pay the remuneration to the
creator of that industrial design:
a- In the case of utilization of
that industrial design;
b- In the case of transfer of
the right to utilize that industrial design to other organization, person on
the basis of contract referred to in Section 15.
(2) In the case of utilization
of industrial design, the minimum amount of remuneration paid to the creator of
the industrial design shall, in the absence of other agreement in this respect
between the owner and the creator of the industrial design, be 1,5% of the
profit derived from the utilization of that industrial design.
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(3) In the case of transfer of
the right to utilize an industrial design, the minimum amount of remuneration
paid to the creator of the industrial design shall, in the absence of other
agreement in this respect between the owner and the creator of the industrial
design, be 8% of the amount derived from the transfer of the right to utilize
that industrial design.
(4) The amount of remuneration
shall be payable to the creator of an industrial design within 2 months after
the expiration of each year of utilization of that industrial design or after
the date on which the owner of that industrial design has received the profit
from transfer of the right to utilize that industrial design.
Section 25
If the
owner of an industrial design shall not pay the remuneration to the creator of
that industrial design as provided for in Section 24 of this Decree, the
creator or his successor in title shall have the right to file an appeal with
the Competent People's Court.
Section 26
(1) The
persons, who are responsible for giving technical assistance to the creator of
an industrial design as well as for organization of, or participation in the
first utilization of that industrial design, shall receive once the
encouragement bonus not exceeding 50% of the amount of remuneration paid to the
creator in the first year of utilization of that industrial design.
(2) The encouragement bonus paid
to the persons giving technical assistance to the creator of an industrial
design and organizing the first utilization of that industrial design shall be
deducted from the profit which belongs to the organization, unit, and shall be
paid at the same time as the remuneration paid to the creator after the first
year of utilization.
Section 27
The heads
of the organizations, units or branches concerned may use the adequate forms of
encouragement like letters of congratulation, encouragement certificates,
honorary titles... in view to encourage the creator of industrial designs
having Technical-economical significance and extensive utilization. The creator
of particularly significant industrial designs shall be rewarded by the Council
of Ministers or shall receive the national honorary titles.
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ORGANIZATION AND
DIRECTION OF ACTIVITIES CONCERNING INDUSTRIAL DESIGNS
Section 28
(1) The
State Committee for Science and Technology shall be responsible for
organization of activities concerning industrial design throughout the country
and for administration of legal protection of industrial design in accordance
with the provisions of this Decree.
The National Office on
Inventions shall be the department responsible for assisting the Chairman of
the State Committee for Science and Technology in performing the above
function.
(2) The ministries,
organizations of ministerial rank, organizations directly subordinated to the
Council of Ministers, people's committees of the provinces, towns and special
districts directly subordinated to the central administration shall be
responsible for organization and administration of activities concerning
industrial design in their sectors or localities.
The sectoral or local
authorities responsible for scientific and technical management shall assist
the ministers, the Chairmen of the people's committees of the provinces, towns,
special districts in the fulfillment of the appointed tasks.
(3) The enterprise corporations,
joint enterprises, companies and general companies under central or local
administration shall be responsible for organization and coordination of
activities among enterprises under their competence with a view to create new
industrial designs; to protect them and to utilize extensively the protected
industrial designs in manufacture of new products within their area of
management.
The department responsible for
scientific-technical management in enterprises corporations, joint enterprises,
companies, general companies shall be responsible for assisting the heads of
above establishments in the fulfillment of the appointed tasks.
Section 29
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a- Organizing extensive
activities concerning industrial design within their organizations, units,
considering it as the important part of activities for improving quality of
products as well as for research and manufacture of new products.
b- Providing favorable
conditions for the workers, employees, especially the designers of products,
technicians to participate actively in the research, creation of new industrial
design satisfying requirements of production and other activities within the
organizations, units.
c- Applying necessary measures
for protection of industrial design created by workers, employees of the
organizations, units.
d- Utilizing extensively and profitably
protected industrial designs with a view to insure the high quality, beautiful
and, attractive performance of the products satisfying aesthetic requirements
of consumers and promotion of production of goods.
e- Encouraging and stimulating
the creators of industrial design, the persons having assisted the creators and
the organizers of utilization of industrial design in production according to
the legislation in force.
(2) The organizations, units may
cover the expenditure for realization of contracts to transfer the rights to
utilize industrial design. The expenditure for above purposes shall be covered
by the fund for the production development, fund assigned to the scientific and
technological research or other source concerned.
(3) The scientific - technical
management body of organization, unit (technical section or technical
management body) shall be responsible for assisting the head of the
organization, unit in the accomplishment of the appointed tasks.
Chapter VI
APPLICATION OF THIS
DECREE
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The State
Committee for Science and Technology shall be responsible for promulgating,
either on its own initiative or in consultation with the organization
concerned, instructions for interpretation and implementation of this Decree.
Section 31
The
Ministers, the Chairmen of the State Committees, the Heads of Organizations
directly subordinated to the Council of Ministers, the Chairmen of the people's
committees of the provinces, towns, special districts directly subordinated to
the central administration shall be responsible for the promotion and
supervision of the implementation of this Decree.
Vo
Van Kiet
(Signed)