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Protection Criteria

patentabilityAccording to Articles 61, 66, and 67 of the Intellectual Property Law, protection conditions for industrial design are provided as follows:

Novelty

The standard for determining novelty of industrial design is based on universal novelty. To be considered to be new, an industrial design must not significantly differ from other industrial designs that have already disclosed to the public, anywhere in the world, by publication in tangible form, by oral disclosure, by use or in any other ways, prior to the filing date or, where appropriate, the priority date of the relevant design application.

Article 66.4 of the Intellectual Property Law provides following exceptions to loss of novelty in connection with disclosure of industrial design:

  • The design is disclosed by any person without the consent of the person having the right to patent the design;
  • The design is disclosed in the form of a scientific presentation of the person having the right to patent the design; or
  • The design is disclosed as an exhibited object by the person having the right to patent the design at a national exhibition of Vietnam or an international exhibition.

In such circumstances, an application for the industrial design should be filed to the NOIP within 06 months after said disclosure.

Creativeness

An industrial design is considered to involve creativeness when, taking into account other industrial designs that have already disclosed to the public, anywhere in the world, the industrial design would not have been obvious to person having common knowledge in the field to which the design pertains.

Industrial application

An industrial design is considered industrially applicable if it can serve as a model for an article in industry or handicraft.

Unprotected designs

Civil Code and the Intellectual Property Law stipulate on objects which are not protected as industrial design as follows:

  • Designs of articles that are contrary to the public interest, humanitarian principles or morality;
  • Designs are determined only by the functional characteristics of articles. For example, the shape of screw with a helical groove formed on its surface;
  • Designs of civil or an industrial construction works e.g. appearance of houses, factories, bridges;
  • Designs of articles invisible in end use. For example, the shape and appearance of internal parts of a machine.