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THE MINISTRY
OF SCIENCE AND TECHNOLOGY
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
05/2013/TT-BKHCN
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Hanoi,
February 20th 2013
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CIRCULAR
AMENDING THE CIRCULAR NO. 01/2007/TT-BKHCN DATED FEBRUARY 14TH
2007, GUIDING THE IMPLEMENTATION OF THE GOVERNMENT'S DECREE NO. 103/2006/ND-CP,
ELABORATING A NUMBER OF ARTICLES OF THE LAW ON INTELLECTUAL PROPERTY APPLICABLE
TO INDUSTRIAL PROPERTY, AMENDED IN THE CIRCULAR NO. 13/2010/TT-BKHCN DATED JULY
30TH 2010 AND THE CIRCULAR NO. 18/2011/TT-BKHCN DATED JULY 22ND 2011
Pursuant to the Government's Decree No.
28/2008/ND-CP dated March 14th 2008, defining the functions, tasks,
powers and organizational structure of the Ministry of Science and Technology;
Pursuant to the Law on Intellectual property
dated November 29th 2005 and the Law No. 36/2009/QH12 dated July 19th 2009 on the amendment of the Law on
Intellectual property (hereinafter referred to as the Law on Intellectual
property);
Pursuant to the Government's Decree No. 103/2006/ND-CP dated September 22nd 2006 of the
Government, elaborating and guiding the implementation of a number of articles
of the Law on Intellectual property applicable to industrial property, and the
Decree No. 122/2010/ND-CP
dated December 31st 2010, amending the Decree No. 103/2006/ND-CP;
The Ministry of Science and Technology amends the Circular No. 01/2007/TT-BKHCN dated February 14th 2007, guiding the implementation of the Government's Decree No.
103/2006/ND-CP, elaborating a number of articles of the Law on Intellectual
property applicable to industrial property, amended in the Circular No.
13/2010/TT-BKHCN dated July 30th 2010 and the
Circular No. 18/2011/TT-BKHCN dated July 22nd
2011 (hereinafter referred to as the Circular No. 01/2007/TT-BKHCN)
as follows:
Article 1. Amending some
regulations of the Circular No. 01/2007/TT-BKHCN
1. Point 1.1. of the
Circular No. 01/2007/TT-BKHCN is amended as follows:
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2. Point 7.1.b (iii) is
amended, and Point 7.1.b (iv) is added to the Circular No. 01/2007/TT-BKHCN as
follows:
“(iii) Geographical maps (if the registered
trademark is to prove the geographical origin of products, or a collective mark
or certification mark that contains the geographical name or other signs
indicating the geographical origin of to local specialities);
(iv) The written approval for the trademark
registration issued by the provincial People’s Committee as prescribed in Point
37.7.a of this Circular (if the registered trademark is a collective
mark or certification mark that contains the geographical name or other signs
indicating the geographical origin of to local specialities).”
3. Point 13.8. of the
Circular No. 01/2007/TT-BKHCN is amended as follows:
“13.8. Deadline for examining the sufficiency
of the application
a) The sufficiency of the application shall be
examined within 01 month from the day on which the application is submitted as
prescribed in Clause 1 Article 119 of the Law on Intellectual property.
b) Where the National Office of Intellectual
Property issues a notice as prescribed in Point 13.6.a of this Circular, the
period for the applicant to reply to that notice is not included in the time
limit for sufficiency examination. This period is:
(i) The period from the date of issue of the
notice to the day on which the applicant replies to the notice; or
(ii) the time limit written in the notice
(including the extension), in case the applicant does not replay to the notice.
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d) Before the deadline prescribed in Point 13.8.a, 13.8.b or 13.8.c above, National
Office of Intellectual Property must finish examining the sufficiency of the
application, and notify the applicant of the result as prescribed in Point 13.6
or 13.7 of this Circular.”
4. Point 15.6.d is amended,
Points 15.6.D and 15.6.e is added to the Circular No. 01/2007/TT-BKHCN as
follows:
“d) Before issuing the notice of the intention
to grant the patent as prescribed in Point 15.7.a (iii) of
this Circular, the National Office of Intellectual Property shall check whether
the application is the first to file as prescribed in Points 25.7,
35.9 and 39.10 of this Circular.
dd) The notification prescribed in Point 15.7.a (iii) shall be in the following cases:
(i) The application does not fall into the cases
prescribed in Article 90 of the Law on Intellectual property;
(ii) The filing date or the priority date of the
application is earliest among the patent applications in the cases prescribed
in Clause 1 Article 90 of the Law on Intellectual property;
(iii) The filing date or the priority date of
the application is earliest among the industrial design applications in the
cases prescribed in Clause 1 Article 90 of the Law on Intellectual property;
(iv) The filing date or the priority date of the
application is earliest among the trademark applications in the cases
prescribed in Clause 2 Article 90 of the Law on Intellectual property;
(v) The application is made under an agreement
as prescribed in Clause 3 Article 90 of the Law on Intellectual property.
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(i) The issuance of the patent is refused
because the application is not the first to file; if the filing date or
priority date is earliest, the patent shall be granted; or
(ii) The application is considered the first to
file, and dealt with as prescribed in Point 15.6.dd; if the issuance of the
patent to the applications of which the earlier filing date or priority date is
refused or withdrawn, such applications are considered withdrawn.”
5. Point 15.7.a (iii). of
the Circular No. 01/2007/TT-BKHCN is amended as follows:
“(iii) If the objects in the application satisfy
the protection conditions, or errors are rectified, or acceptable explanation
is provided by the deadline prescribed in Points 15.7.a (i) and (ii) above, the National Office of Intellectual Property shall
issue a notice of substantive examination, in particular:
- For the applications in the cases prescribed
in Point 15.6.dd of this Circular: notify the intention to grant the patent and
give the applicant 01 month from the notifying date to pay the fee for patent
grant, fee for announcing the decision to grant the patent, fee for
registration, and fee for invention validity maintenance in the first year. The
applicant may request the extension of this deadline as prescribed in Point 9.2
of this Circular.
- The applications not falling into the cases in
Point 15.6.dd of this Circular shall be dealt with in accordance with Point
15.6.e of this Circular.”
6. Point 15.8. of the
Circular No. 01/2007/TT-BKHCN is amended as follows:
“15.8. Time limit for substantive examination
a) The time limit for substantive examination is
specified in Clause 2 Article 119 of the Law on Intellectual property.
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(i) The period from the date of issue of the
notice to the day on which the applicant replies to the notice; or
(ii) the time limit written in the notice
(including the extension), in case the applicant does not replay to the notice.
c) Where the applicant actively request the
revision of the application, or reply to the notice issued by National Office
of Intellectual Property as prescribed in Points 15.7.a (i) and (ii) of this Circular, the deadline for substantive examination
shall be extended to match the deadline for request for application revision or
explanation of the applicant as prescribed in Clause 4 Article 119 of the Law
on Intellectual property, in particular:
(i) Within 06 months, applicable to inventions;
(ii) Within 03 months, applicable to trademarks;
(iii) Within 02 months and 10 days, applicable
to industrial designs;
(iv) Within 02 months, applicable to
geographical indications.”
7. Point 25.7. of the
Circular No. 01/2007/TT-BKHCN is amended as follows:
“25.7. Inspecting the conformity to the
first-to-file rule of inventions
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a) To inspect the conformity to first-to-file
rule, it is required to seek information in the following sources (not
restricted to only these sources): all invention applications received by the
National Office of Intellectual Property (up to the date of inspection) that
have the same classification code as that of the objects in the examined
application - up to the third level – and have earlier filing dates or priority
dates (if the application is entitled to priority) than that of the examined
application that have not been announced, or the announcement date is later
than the filing date or the priority date (if the application is entitled to
priority) of the examined application.
b) The information collection is to identify the
case in which many applications (including the examined application) register
the same or similar inventions, and identify the application which has the
earliest filing date or priority date.
c) If there are many applications falling in the
case prescribed in Point 25.1.b above, the invention patent or utility solution
patent is only granted to the application that has the earliest filing date of
priority date among the patentable applications.
d) Among the applications prescribed in Point
25.7.b above, if there are many applications that have the same filing date of
priority date, the invention patent or utility patent is granted to the
invention of only one application among them under the agreement of all
applicants; if an agreement cannot be reached, all applications shall be
rejected.”
8. Point 35.9. of the
Circular No. 01/2007/TT-BKHCN is amended as follows:
“35.9. Inspecting the
conformity to the first-to-file rule of industrial designs
For the industrial design applications that satisfy the protection conditions, before issuing
the notice of intention to grant the industrial design
patent as prescribed in Point 15.7.a (iii) of this Circular, National Office of
Intellectual Property shall inspect the conformity to the first-to-file
rule as prescribed in Clause 1 and Clause 3 Article 90 of the Law
on Intellectual property, in accordance with the following provisions:
a) To inspect the conformity to the
first-to-file rule, it is required to seek information from the sources
prescribed in Point 35.4.b (iv) of this Circular.
b) The information collection is to identify the
case in which many applications (including the examined
application) register the same or similar industrial design of a part or a
product, and identify the application which has the earliest filing date or
priority date.
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c) Among the applications prescribed in Point 35.9.b, if there are many applications that have the same filing
date of priority date, the industrial design patent is granted to the
industrial design of only one application among them under the agreement of all
applicants; if an agreement cannot be reached, all applications shall be
rejected.
9. Point 37.7. of the
Circular No. 01/2007/TT-BKHCN is amended as follows:
“37.7. Requirements of
written permission for the registration of collective marks and certification
marks that contain geographical names or other indicators of geographical
origins of Vietnam’s local specialities
a) The written permission for the registration
of collective marks and certification marks that contain geographical names or
other indicators of geographical origins of local specialities shall be issued
by the following agencies:
(i) The provincial People’s Committee in charge
of the geographical area corresponding to the geographical name or indicator of
geographical origin of local specialities (if the geographical area is under
the management of one local government);
(ii) All provincial People’s Committees in
charge of the geographical area corresponding to the geographical names or
indicators of geographical origins of local specialities (if the geographical
area is under the management of multiple local governments).
b) The geographical map corresponding to the
geographical name or indicator of geographical origin local specialities must
sufficient information to identify that geographical area, and be certified by
the competent agency stated in Point 37.7.a above.”
10. Point 37.8. is added to
the Circular No. 01/2007/TT-BKHCN as follows:
“37.8. Criteria for identifying geographical
names and indicators of geographical origins of products
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The indicator of geographical origin of a
product is usually a geographical name, but might be a symbol of the locality
(images of typical objects of the locality such as a symbol, a map, a flag, a
badge, an attraction, a distinctive construction, etc.) or any other sign.
A geographical name might be a current name or a
past name, an official name or traditional name of a geographical area
(according to the administrative boundary or geographical methods).
b) A geographical name, a local symbol used for
a usual product (not a speciality) may or may not indicate its geographical origin,
depending on the product and the use of geographical name and local symbol.
c) Geographical names or local symbols are meant
to indicate the geographical origin products in the following cases:
(i) They are used for local specialities
(special and well-known products because of certain characteristics, which are
produced locally);
(ii) They are used for local plants, animals,
and products thereof;
(iii) They are used for local products of
mineral extraction (coal, iron, steel, aluminum, cement, stone, salt, timber,
etc.);
(iv) They are used for the products from local
develop industries;
(v) Other cases depend on the products and the
use of geographical names and local symbols.
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(i) They are used as a usual trademark and
widely recognized, which means they are considered to only indicate commercial
origin, and does not indicate a geographical origin, e.g. Hanoi Beer, Sai Gon
Beer;
(ii) The corresponding geographical area is not
the place where the products are made, e.g. Arctic Cigarette, etc.
The geographical names and local
symbols that are not meant to indicate geographical origin
of products may be protected as a usual trademark without permission of
local governments.
dd) The common geographical names and local
symbols (such as names of provinces, cities, attractions) used for ordinary
products of a locality (including the products of which the manufacture is at
an advantage, but does not have a reputation or distinctive quality), used by
local traders for their goods and services, and meant to indicate the origin
(but are not eligible for being classified in to type (c) and type (d) above)
shall not be protected.
However, a geographical name or local symbol may
be used as a secondary constituent of an ordinary trademark of a corresponding
local trader, as long as such geographical name is removed from protection, and
exempt from obtaining permission of the local government.
11. Point 39.10 of the
Circular No. 01/2007/TT-BKHCN is amended as follows:
“39.10. Inspecting the
conformity to the first-to-file rule of trademarks
For the industrial design
applications that satisfy the protection conditions, before issuing the notice
of intention to grant the Certificate of trademark registration prescribed in Point 15.7.a (iii) of this Circular, National Office of
Intellectual Property shall inspect the conformity to the first-to-file rule as
prescribed in Clause 2 and Clause 3 Article 90 of the Law on Intellectual
property, in accordance with the following provisions:
a) To inspect the conformity to the
first-to-file rule, it is required to check all applications for trademark
registration received by the National Office of Intellectual Property (up to
the date of inspection) that have earlier filing dates or priority dates (if
the application is entitled to priority) than that of the examined application.
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c) If there are many applications falling in the
case prescribed in Point 39.10.b above, the Certificate of trademark
registration is only granted to the trademark is the application that has the
earliest filing date or priority date among the patentable applications.
d) Among the applications prescribed in Point
39.10.b above, if there are many applications that have the same filing date of
priority date, the Certificate of trademark registration shall be granted to
the trademark of only one application among them under the agreement of all
applicants; if an agreement cannot be reached, all applications shall be
rejected.”
Article 2. Effect
This Circular takes effect after 45 days from
the day on which it is signed./.
THE MINISTER
Nguyen Quan