What can be protected using copyright in Vietnam?
Protection of copyright in Vietnam is given to literary, artistic or scientific works, which fall into any of the following categories:
(i) Literary and scientific works, textbooks, teaching materials, and other works expressed written letters or other characters;
(ii) Lectures, addresses, and other speeches;
(iii) Press works;
(iv) Musical works;
(v) Dramatic works;
(vi) Cinematographic works and works created by similar methods;
(vii) Fine art works and applied art works;
(viii) Photographic works;
(ix) Architectural works;
(x) Sketches, plans, maps, and drawings relevant to topography or scientific works;
(xi) Folklore and folk art works;
(xii) Computer programs and data collections;
(xiii) Derivative works;
To qualify for protection, a work must be original. The current copyright rules expressly state that copyright protection for a work is granted upon creation of the work in a given work, without subject to publication or registration. The protection is also given to the work irrespective of its form of embodiment and quality.
Derivative works shall only be protected if such protection is not prejudicial to the copyright in the works used to create such derivative works.
What are designer's rights in Vietnam?
The author(s) of an industrial design in Vietnam shall have the moral and material rights, namely:
(a) To have his or her or its name stated in the certificate of protection and in the National Registration Book of designs, as the author(s) and in other documents published in relation to such objects;
(b) To receive remuneration from the design owner;
(c) To request measures be taken, or to take legal action, against infringement of his or her or their rights above.
The material rights and the rights to request measures to be taken or to take legal action of the author of an industrial design as above stated may be transferred to another person and/or bequeathed in accordance with law.
What are the Rights and Obligations of Design Owners under Vietnam regulation?
Accordance with the Vietnam IP Law, a Design owner shall be entitled to:
(i) Exclusive use of the patented design, including the right to license,
(ii) Request any person infringing his design rights to cease from the infringement and ask for any damage suffered.
The design owner has certain obligations including:
- To pay remuneration to the designer(s),
- To pay the renewal fee for maintenance or renewal of the design patent, and
- To use or license the patented design to a third party in the form of compulsory license according to the decision of the competent State authority.
How does the Trademark Office respond to the filed industrial design in Vietnam?
In Vietnam, on the date of expiration of the time limit for substantive examination of a design application at the latest, The National Office of Intellectual Property of Vietnam (NOIP) shall send to the applicant one of the following notices:
• A notice on its intended refusal to grant an industrial design patent, clearly stating the reason(s) for refusal and setting a time limit of two (2) months from the date of issuance of the notice for the applicant to give opinions and satisfy the requirements(the applicant may request prolongation of the above time limit),if the object claimed in the application fails to satisfy the protection conditions;
• A notice on its intended grant of an industrial design patent and request the applicant to pay the fee , if the signs claimed in the application satisfy the protection conditions or the applicant satisfactorily corrects errors or makes reasonable justifications within the time limit;
How does the substantive examination for a design application in Vietnam take place?
The purpose of substantive examination of design applications is to assess the eligibility of objects claimed in the application under the requirements and corresponding protection scope. An examination will be carried out by examiners of The National Office of Intellectual Property of Vietnam (NOIP), within 6 months from the date of publication.
If the applicant, in the course of substantive examination, corrects or supplements documents or makes justifications on his/her own initiative or upon the request of the NOIP, the time limit for substantive examination may be prolonged for a period of time during which the applicant does so.
What if the Trademark Office refuses to accept the filed industrial design application in Vietnam?
If the applicant to whom The National Office of Intellectual Property of Vietnam (NOIP), has sent a notice on its intended refusal of the application fails to correct errors or unsatisfactorily corrects errors or makes no opposition or makes unreasonable opposition to the intended rejection within the set time limit, the NOIP shall send a notice on its refusal of the application.
Applicants and all organizations and individuals having rights and interests directly related to the decision may lodge a complaint with the Director General of NOIP or initiate a lawsuit at court if they disagree with this decision within 90 days from the date the person having the right to complaint receives the notice of this decision.
Within 10 days from the date of receipt of a complaint about the decision of refusal, NOIP shall issue a notice of acceptance or rejection of such complaint, clearly stating the reason(s) for rejection.
Upon the expiration of the time limit for settlement of the complaint about decisions or notices concerning the application for an industrial design patent (the 1st complaints) by the NOIP such decisions or notices, if the complaint is not settled or the complainant disagree with complaint-settling decisions of the NOIP, the complainant or person having rights and interests directly related to the decision may further lodge their complaints (the 2nd complaints) to the Minister of Science and Technology or initiate a lawsuit at court within 30 days from the date of expiration of the time limit for settlement of the 1st complaint if by that date the 1st complaint is not settled, or from the date the person having the right to complaint receives or knows about the decision on settlement of the 1st complaint. Upon the expiration of the time limit for settlement of the 2nd complaint above or if the complainant disagree with complaint-settling decisions of the Minister of Science and Technology, such complainant or person may initiate a lawsuit at court.
How does the formality examination for a design application in Vietnam take place?
Filing an industrial design in Vietnam requires a formality examination for evaluating its validity.
The time limit for formality examination of an application in Vietnam is one (1) month from the filing date. In the course of formality examination, if the applicant corrects or supplements documents on his/her own initiative or upon the request of The National Office of Intellectual Property of Vietnam (NOIP), the time limit for formality examination may be prolonged for a period of time during which documents are corrected or supplemented.
Before the expiration of the time limit above, the NOIP shall complete the formality examination of applications and send notices on examination results to applicants.
• For a valid application, the NOIP shall send to the applicant a notice on acceptance of valid application.
• For an application failing to meet formal requirements, the NOIP shall send to the applicant:
A notice of intended refusal to accept valid applications, clearly stating reasons and setting a time limit for the applicant to correct errors or to object such intended refusal and set a time limit of one month from the date of notification for the applicant to give opinions or correct errors.
What are the required documents for filing an industrial design application in Vietnam?
The design application shall consist of the following documents:
a) A request made in prescribed form (as prescribed in the Circular No. 01/2007/TT-BKHCN);
b) Documents, samples, information identifying the design as provided for in Articles 103 of the IP Law 2005 of Viet Nam (e.g. a set of photos or a set of drawings and a description of the industrial design);
c) Power of attorneys, if the application is filed through a representative;
d) Documents evidencing the right to registration, if acquired by the applicant from another person (e.g.: Deed of Assignment);
e) Documents evidencing the priority right, if claimed (e.g. certified true copy of priority document and Deed of Assignment);
f) Receipt of fees and charges.
All documents of the application shall be in Vietnamese, except for the documents mentioned at point c, d, e and other documents supporting the applications, which can be made in another language but must be translated into Vietnamese at the request of National Office of Intellectual Property of Vietnam (NOIP).
What are the protection conditions for an industrial design in Vietnam ?
An industrial design shall be protected in Vietnam when it satisfies the following conditions:
• Being new: An industrial design shall be considered new if it significantly differs from other industrial designs that are already publicly disclosed through use or by means of written descriptions or in any other form, inside or outside the country, prior to the filing date or the priority date, as applicable, of the industrial design registration application.
• Being creative: An industrial design shall be considered creative if, based on industrial designs already publicly disclosed through use or by means of written descriptions or in any other form, inside or outside the country, before the filing date or the priority date, as applicable, of the industrial design registration application, it cannot be easily created by a person with average knowledge in the art.
• Being susceptible of industrial application: An industrial design shall be considered susceptible of industrial application if it can be used as a model for mass manufacture of products with appearance embodying such industrial design by industrial or handicraft methods.
What is an industrial design in Vietnam ?
Under Vietnam regulation, an industrial design means a specific appearance of a product embodied by three-dimensional configurations, lines, colors, or a combination of these elements.
Are there Limitations to Patent Rights in Vietnam?
Patent rights as mentioned above are subject to certain limitations as mentioned below:
Prior Users' Rights
An individual or entity that, prior to the publication date of the patent application, had used the invention, utility solution independently of the patentee, shall have the right to continue the use after the patent is granted. However, the prior user can not extend the scope or increase the volume of use compared with the use prior to the publication date of the application. Prior user's right can not be transferred.
The Ministry of Science and Technology (MOST) may grant a compulsory license in the following circumstances:
The patentee fails to use the patented invention, utility solution, or used but not compatible with the socio-economic development of Vietnam, without any justifiable reasons;
The person willing to use the invention, utility solution has tried by every means to negotiate with the patentee with a reasonable price to enter a license but failed;
The use of the patented invention, utility solution is to serve the demands of national defense and security, prevention and treatment of human disease or other urgent needs of the society.
The licensee of a compulsory license shall have to pay the patentee a certain amount of royalties as specified in the decision of granting compulsory license from the MOST.
The following cases are also not covered by the patent rights:
The use is not for commercial purposes;
The circulation and use of the products that are sold or marketed by the patentee, his assignee or licensee or a prior user;
The use of the patented invention or utility solution on foreign means of transportation which are in transit or temporarily located in the territory of Vietnam and such use is only for the purpose of maintaining the operation of such means.
What is the act of patent infringement in Vietnam ?
The following acts, committed without the consent from a patent holder, shall constitute a patent infringement:
(i) Manufacturing products using a patented invention or utility solution;
(ii) Using, importing, advertising or circulating products that have been manufactured using a patented invention or utility solution; and
(iii) Applying patented process in Vietnam.