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A third party needs to give all evidences to prove for the above mentioned legal basis, including images containing design, information resources and the issuing date of the information resources. The resources can be under the form of granted patent for design, published application in any countries or similar things. Data from internet is also considered as an evidence of disclosure of design. In many cases, applicants themselves disclosed design on their websites or marketing/trade channel.
It is noticeable that in case where a design is disclosed without designer’s permission will not be seen as lack of novelty, which regulated at point 4, Article 65, Law on Intellectual Property.
A design application will be published if it meets requirements as to formality. The publication will be an important data resource for all parties follow industrial property to NOIP and carefully prepared documents for opposition.
This diagram shows the timeline for filing opposition:
According to Article 112, Law on Intellectual Property 2005, “as from the date an industrial property registration application is published in the Property Office Gazette until prior to the date of decision on the grant of a Protection Title, any third parties shall have the right to present opinions to the States administrative authority of industrial property rights in relation to the grant or refusal of a Protection Title in respect of the application”.
Thus, anyone regardless relates or not to the design application has rights to file an opposition letter. However, if the third party is Vietnamese, they can directly file this opposition to he National Office of Intellectual Property of Vietnam. In the other cases, if the third party is a foreign opponent, they have to authorize a lawful IP representative in Vietnam to proceed with such action.
A third party can oppose a design application on the grounds that:
An opposition can be submitted after the application is published, but before a granting decision is issued.
In order to register for an applied art work in Vietnam, the following information and documents is required:
Information:
Documents:
02 Executed and Notarized Power of Attorney (signed by person in charge of owner then affix a corporation seal of the Owner );
02 Certified true copy by a Notary Public of Identity Card or Passport of the Author(s);
02 Notarized Statement of honesty of the author (s) on creating the applied art work signed by the author(s);
Soft copy of the applied art work in .JPEG file;
02 certified true copy by a Notary Public of the Certificates of Business Registration of the owner;
02 Notarized Task Assignment Document from the owner (s) to the author(s) signed by person in charge of owner.
These documents must be in Vietnamese or translated into Vietnamese if they are made in foreign languages.
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.
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.
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.
