PADEMARK - Patent Attorneys/Trademark Attorneys in Vietnam

Vietnam follows the first-to-file system. Vietnam design law determines priority based on the date of the first application and shall confer the rights on the party who is the first to file a design application. That is to say, where two or more parties apply for a patent for the same industrial design, the first party to file will be granted the patent regardless of the date of actual creation. Therefore it is advisable to file a patent application for the design as soon as possible after the design is created.

Industrial design is the exterior shape of a product represented in three dimensional forms, lines, colors or any combination thereof. An industrial design shall be protectable if it is new, creative and capable of industrial application.

Designs exempted from Protection

The following shall be excluded from protection:

§             exterior shape of a product dictated merely by technical features thereof;

§             exterior shape of a civil or an industrial construction work;

§             exterior shape of a product that is invisible during the use of the product.

Also, industrial designs shall not be patented if they are contrary to social morality, public order, or detrimental to national defense and security.

Requirements for Protection

Novelty of an Industrial Design : To be protected, an industrial design must substantially differ from industrial designs that are have been disclosed to the public anywhere in the world by means of use, written description or in any other way prior to the date of filing or the priority date of the design application. In other words, Vietnam has adopted the absolute worldwide novelty system. One design shall not be substantially different from the other if they are distinguished merely by designing features that are not easily recognized and memorized and that cannot serve to distinguish the two designs as a whole.

An industrial design shall not be considered as publicly disclosed if it is known to only a restricted number of persons who are under obligation to keep it secret. Also, an industrial design shall not be considered as being anticipated if:

(i)          the design was disclosed by another person without permission of the author and/or applicant;

(ii)        it was disclosed by the author and/or applicant in a scientific report; or

(iii)       the design was displayed at a national exhibition or an officially recognized international exhibition, provided that the patent application for such industrial design is filed within six months from the date of disclosure.

Creativity of an Industrial Design: An industrial design shall be regarded as creative if, having regards to the industrial designs already disclosed to the public anywhere in the world prior to the date of filing or the priority date of the industrial design application, it cannot be easily created by a person ordinarily skilled in the art.

Industrial Applicability of an Industrial Design: An industrial design shall be regarded as being capable of industrial application if it can serve as a template for mass production of the product having exterior shape embodying such industrial design by industrial or handicraft method.

First-to-File Principle

Vietnam follows the first-to-file system. Vietnam design law determines priority based on the date of the first application and shall confer the rights on the party who is the first to file a design application. That is to say, where two or more parties apply for a patent for the same industrial design, the first party to file will be granted the patent regardless of the date of actual creation. Therefore it is advisable to file a patent application for the design as soon as possible after the design is created.

Examination

Vietnamese design applications shall be checked to see whether it fulfills the necessary procedural and formal requirements within 1 month from the filing date. The applications accepted as to formality shall be published in the IP Gazette within two months from the date of acceptance. The published application shall be substantively examined within six months from the date of publication.

Term of Protection

The validity term of design patent is five years counted from the filing date. The term can be renewed twice, each time for five years.