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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.:
18/2011/TT-BKHCN
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Hanoi, July
22, 2011
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CIRCULAR
AMENDING
AND SUPPLEMENTING SOME PROVISIONS OF THE CIRCULAR NO. 01/2007/TT-BKHCN, OF
FEBRUARY 14, 2007, BEING AMENDED AND SUPPLEMENTED BY THE CIRCULAR NO.
13/2010/TT-BKHCN, OF JULY 7, 31, 2010 AND THE CIRCULAR NO. 01/2008/TT-BKHCN, OF
FEBRUARY 25, 2008, BEING AMENDED AND SUPPLEMENTED BY THE CIRCULAR NO.
04/2009/TT-BKHCN, OF MARCH 27, 2009
Pursuant to the Government’s
Decree No. 28/2008/ND-CP, of March 14, 2008, defining the functions, tasks,
powers and organizational structure of the Ministry of Science and Technology;
Pursuant to the Law on
intellectual property, of November 29, 2005 amended and supplemented by the Law
No. 36/2009/QH12, of June 19, 2009 (hereinafter referred to as the Law on
intellectual property);
Pursuant to the Government’s
Resolution No. 67/NQ-CP, of December 24, 2010, on simplifying administrative
procedures within management functional scope of the Ministry of Science and
Technology;
The Minister of Science and
Technology amends and supplements some provisions of the Circular No.
01/2007/TT-BKHCN, of February 14, 2007 guiding the implementation of The
Government’s Decree No. 103/2006/ ND-CP of September 22, 2006, being amended
and supplemented by the Circular No. 13/2010/TT-BKHCN (hereinafter referred to
as “the Circular No. 01/2007/TT-BKHCN amended in 2010”) and the the Circular
No. 01/2008/TT-BKHCN, of February 25, 2008 guiding grant, revocation of
industrial property assessor cards and certificates of organizations eligible
to operate in industrial property assessment,being amended and supplemented by
the Circular No. 04/2009/TT-BKHCN, of March 27, 2009 (hereinafter referred to
as "the Circular No. 01/2008/TT-BKHCN amended in 2009") as follows:
Article 1. To amend and supplement
some points of the Circular No. 01/2007/TT-BKHCN:
1. To amend and supplement point
7.2.e as follows:
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2. To amend and supplement point
7.3.c as follows:
"c) Documents evidencing the grounds for enjoying the right of priority
(copies of the initial application(s), with certification of the
application-receiving agency, except for PCT application); the list of goods
and services in the initial trademark registration application; the paper on
transfer of the right of priority in case the applicant enjoys that right from
another person.
3. To amend and supplement point 20.3
as follows:
“20.3. Maintenance of validity of invention protection titles
a) To
maintain the validity of invention protection title, the protection title
holder shall pay a validity maintenance fee within six months before the
expiration of the validity term. The payment of the validity maintenance fee may be delayed for no more
than six months after the expiration of the current validity term but the
protection title holder shall pay the maintenance fee plus 10% for each month
of delayed payment.
b) The National Office of
Intellectual Property shall consider the
validity maintenance within 10 working days after receiving request and
validity maintenance fee. If request is valid, the National Office of
Intellectual Property shall record into The National registration Book of
Inventions.
In request of validity maintenance has shortcoming or be invalid, the National
Office of Intellectual Property shall issue notification and define time limit
of 01 month since day of issuing notification for the requester to fix
shortcoming or giving opinion to oppose. If during the defined time limit the
requester fails to fix shortcoming or fails to meet requirement upon fixing
shortcoming, has no idea to oppose or has idea to oppose but not exact, the
National Office of Intellectual Property shall issue an notification to refuse the validity maintenance".
4. To amend and supplement point
20.4.a as follows:
“a) The
validity of invention patents, utility solution patents and certificates of
registrated layout designs shall not be extended.
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The
validity of a certificate of registered trademark may be extended many
continuos times, for each period of ten years, wholly or partly list of goods,
services.”
5. To amend and supplement point
33.5.e as follows:
“e. The
section of description of the industrial design must satisfy the provisions in
clause 2 Article 103 of Law on intellectual propert, and should be described in
details as follows:
(i) To fully disclose the nature of the industrial design requesting to be protected,
in which adequately showing design features presenting the nature of the
industrial design as well as new design features that are distinguishable from
the most similar industrial design defined at Point 33.5.c above and consistent
with design features shown in the set of photos or drawings;
(ii) Design features of the industrial design requesting to be protected must
be presented one after another in the following order: Configuration and line
features, correlation between configuration and/or line features, color
features (if any);
(iii) For a product that have different usages (for example: a product with
cover or foldable), its industrial design must be described in different
states;
(iv) If an industrial design consists of many variations, distinctive
characteristics of the basic variation (the first variation stated in the
application) in comparison with those of remaining variations must be clearly
indicated;
(v) If
an industrial design is the design of a set of products, the design of each
product in the set must be described”.
6. To amend and supplement point 33.6
as follows:
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An
applicant shall submit 04 sets of photos or 04 sets of drawings of an
industrial design. Sets of photos or drawings must fully present design
features of the industrial design requesting to be protected, based on which
any person with average knowledge in the corresponding field can identify that
industrial design, and follow the following guidance:”.
7. To amend and supplement point
37.4.e as follows:
“e) The
section “List of goods and services bearing the trademark” in the written
declaration must be divided into groups in accordance with the International
Classification of Goods and Services under the Nice Agreement published by the National
Office of Intellectual Property in the
Industrial Property Official Gazette. If the applicant cannot
self-classify, or self-classify inaccurately, the National Office of
Intellectual Property shall classify and the applicant must pay charges for the
classification service as prescribed.”
8. To amend and supplement point 37.5
as follows:
“37.5. Requirements for trademark specimens:
In
addition to the trademark specimen attached to the written declaration, the
application must be enclosed with 05 identical trademark specimens that satisfy
the following requirements:”.
9. To amend and supplement point 47.1
as follows:
47.1. A dossier for registration of a contract on transfer of industrial
property rights comprises a set of documents as follows:
a) 02 copies of the
written declaration for registration of the contract on transfer of industrial
property rights, made according to form 01-HDCN specified in Annex D of this
Circular;
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c) Original
protection title;
d) Written
consent of co-owners to the transfer of industrial property rights, if those
industrial property rights are under common ownership;
e) Power
of attorney (if the dossier is filed through a representative);
g) Copies of fee and charge receipts (in case paying fee and
charge via postal services or directly remit into account of the National
Office of Intellectual Property)”.
10. To amend and supplement point
53.2 as follows:
“53.2. Dossiers of application for practice certificates
A
dossier of application for an industrial property representation service
practice certificate must comprise a set of documents as
follows:
a) Two
copies of the written declaration for requesting grant of an industrial
property representation service practice certificate (practice certificate),
made according to form 01-CCHN specified in Annex E of this Circular;
b) A
copy of the notice on the pass of an examination of professional qualifications
for industrial property representation organized by the National Office
of Intellectual Property;
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d) Copy of identification card;
e) Copies of fee
and charge receipts (in case paying fee and charge via postal services or
directly remit into account of the National Office of Intellectual Property)”.
11. To amend and supplement point
59.2 as follows:
“59.2. Registration for participation in examination:
a) Only
persons fully satisfying the conditions specified at Points a through dd,
Clause 2, Article 155 of the Intellectual Property Law are allowed to register
for participation in examination according to the provisions of this Point.
b) Dossier of registration for
participation in the examination filed to
the National Office of Intellectual Property must comprise 01 set of documents as follows:
(i) Two
copies of the written declaration for registration for participation in the
examination, made in according to the Form 05-KTNV specified in Annex E
of this Circular;
(ii) Copy of the university diploma (present original for comparison, unless
the copy has been authenticated);
(iii) Documents proving that the person registering participation in
examination has been trained in industrial property law or is experienced in
this operation:
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- Graduation
or postgraduate dissertation on industrial property and certificate of the
training establishment where the dossier- filing person has made his/her
dissertation; or
- Copy of decision on recruitment or
labor contract and other document (with confirmation of agency, organization
where the dossier-filing person working)
proving that the dossier-filing person has been personally engaged in the appraisal of industrial property registration applications at a national or
international industrial property office for five or more consecutive years or
in industrial property law-related activities defined at Point d, Clause 2, Article 155 of the
Intellectual Property Law, including inspection, examination, procuracy,
adjudication, legal affairs, consultancy on industrial property law; or
scientific research with title of industrial property researcher or lecturers (present originals for comparison, unless the copies have been
authenticated)
(iv) 02 3x4 cm photos;
(v) Copies of
fee and charge receipts (in case paying fee and charge via postal services or
directly remit into account of the National Office of Intellectual Property)”.
12. To amend and supplement point
59.5 as follows:
“59.5. Organization of examination
a) An
examination shall be organized periodically for 02 years/time.
b) Exam
papers shall be marked by the Examination Council according to the approved
answers and score frame.
c) Examination
results shall be notified by the National Office of Intellectual
Property to examinees. Examinees may
request the National Office of Intellectual Property to review examination papers and the Examination Council shall
review examination papers according to the regulations of the director
of National Office of Intellectual Property.
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13. To amend items “dividing into groups”, “clasification” of declaration Forms 01-SC,
03-KDCN, 04-NH in Annex A as follows:
To supplement notes: “If the
applicant cannot self-group, self-classify or self-group, self-classify
accurately, the National Office of Intellectual Property shall implement this
work and the applicant must pay charges for the grouping, classifying service
as prescribed”.
14. To amend item “Docuements in
application” of declaration Forms 01-SC, 02-TKBT, 03-KDCN, 04-NH, 05-CDDL in
Annex A, 01-SDD, 02-CGD, 03-YCTD in Annex B, 01-SDVB, 02-GHVB, 03-PBVB,
04-CDHB, 05-KN, 06-DKQT, 07-DKCD, 08-SDQT in Annex C, 01-HDCN, 02-HDSD,
03-SDHD, 04-CGBB in Annex D, 01-CCHN, 02-CLCC, 05-KTNV in Annex E and
01-YCTCSC, 02-YCTCKD and 03-YCTCNH in Annex F as follows:
To replace “fee and charge receipts”
by “Copies of fee and charge receipts” (in case paying fees, charges via postal
services or directly remit into account of the National Office of Intellectual
Property)”.
15. - To annul item “Time limit for
extension” and amend and supplement item “objects of extension” of the
declaration Form No. 02-GHVB in Annex C as follows:
“-The industrial design patent – variations need be extended: ….
- Certificate of registered
trademarks – Groups or products, services need be extended: …”
16. To annul item “Confirmation of
People’s Committee of commune, ward, and township for permanent residence of
application owner” of declaration form No. 01-CCHN and 05-KTNV in Annex E.
Article 2. To amend and supplement
some points of the Circular No. 01/2008/TT-BKHCN amended in 2009 as follows:
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“b) The subject on industrial
property law is content being examined compulsorily for all specialized sectors
on assessment.
Persons who have at least 15 consecutive years working as drafting and guiding execution of legal documents on
industrial property, industrial property assessment, settling disputes,
complaints, denunciations, inspections on industrial property at state
management agencies of industrial property, studying and teaching law on
industrial property at organizations of studying and training established and
operate lawfully or consulting law on industrial property under name of the
industrial property representative shall be exempted from examination for
subject on industrial property law.
c) The assessment specialized
subjects include assessment of inventions (including utility solutions) and
layout designs of semiconductor integrated circuits, assessment of industrial
designs, assessment of trademarks and geographical indications (including goods
origin appellations) and assessment of other industrial property rights are
contents of examination for corresponding specialized assessments.
Persons who have at least 15 consecutive years working as explaining, guiding implementation of law
regulations, elaborating regulations, directly implementing or approving result
of appraisal (testing) of content of application for registration of inventions
(including utility solutions), application for registration of industrial designs,
application for trademark registration, geographical indication registration
(including goods origin appellations) at national or international industrial
property agencies, shall be exempted from examination for corresponding
specialized subjects on assessment.
Persons who have at least 15
consecutive years directly conducted procedures for setting up, execution of
industrial property right under name of industrial property presentative shall
be exempted 01 specialized subject on assessment corresponding to sector which
they have implemented most matters.”
2. To amend, supplement provision in
clause 4 section II as follows:
“4. Dossier of registration for
participation in examination
Dossier of registration for
participation in examination includes 01 set of documents as follows:
a) 02 declarations of registration
for participation in examination on industrial property assessment professional
qualifications, made in according to Form specified in Annex I of the Circular.
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c) Copies of decisions on recruitment
or labor contracts and other documents proving actual professional activities
(present originals for comparison, unless copies has been authenticated), if
person registering participation in examination request to be exempted exam
subject stated in point b and point c clause 1 section II of this Circular;
d) 02 3x4 cm photos;
e) Copies of fee and charge receipts
(in case paying fee and charge via postal services or directly remit into
account of the National Office of Intellectual Property)”.
3. To amend, supplement provision in
point c clause 6 section II as follows:
“Within 02 months from the day of
examination, the chairperson of Examination Council shall notify result of
examination for exam participants and grant certificates of professional
qualification to do as industrial property assessor, which are made in
according to Form specified in Annex V of this Circular, for persons meeting
requirements with respect to all exam subjects, in which clearly stating the
assessment specialized sector corresponding to exam subject and defining the
valid time of certificate (used as document to file dossier requesting grant of
assessor card) is 05 year as from the day of granting”.
4. To amend, supplement provision in
clause 2 section III as follows:
“2. Dossier requesting grant of
assessor card
Dossier requesting grant of assessor
card includes a set of documents as follows:
a) 02 declarations on request for
grant of assessor card, made in according to the Form specified in Annex II of
this Circular;
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c) Copy of identification card;
d) 02 3x4 cm photos;
e) Copies of fee and charge receipts
(in case paying fee and charge via postal services or directly remit into
account of the National Office of Intellectual Property)”.
5. To amend, supplement provision in
point c clause 4 section III as follows:
“c) Provisions in clause 2 and clause
3 section III of this Circular shall be apply to procedures for re-grant of
assessor card; except for documents specified in point b clause 2 and time
limit for the National Office of Intellectual Property to consider dossier is
15 days, from the day of receiving dossier”.
6. To amend, supplement provision in
clause 2 section IV as follows:
“2. Dossier requesting for grant of
certificate of assessment organization
Dossier requesting for grant of
certificate of assessment organization includes a set of documents as follows:
a) 02 declarations on request for
grant of certificate of assessment organization, made in according to the Form
specified in Annex III of this Circular;
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c) Copies of decisions on recruitment
or labor contracts between organization and industrial property assessors
operating for organization (present originals for comparison, unless copies
have been authenticated);
d) Copies of fee and charge receipts
(in case paying fee and charge via postal services or directly remit into
account of the National Office of Intellectual Property)”.
7. To amend, supplement provision in
point c clause 4 section IV as follows:
“c) Provisions in clause 2 and clause
3 section IV of this Circular shall be apply to procedures for re-grant of
assessment organization Certificate; except for decision documents specified in
point b and point c clause 2 and time limit for the National Office of
Intellectual Property, Departments of Science and Technology to consider
dossier is 15 days, from the day of receiving dossier”.
8. To replace Declaration Forms in
Annexes I, II and III by Declaration Forms specified in Annexes I, II and III
of this Circular.
Article 3. Effectiveness
This Circular takes effect after 45
days from the day of signing.
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