Nghị định 85-HDBT

DECREE

ON INDUSTRIAL DESIGNS (PROMLGATED BY DECREE NO.85-HDBT OF MAY 13< p="">

Chapter I

GENERAL PROVISIONS

Section 1

(1) This Decree is promulgated to encourage the State organizations, enterprises, semi-sate enterprises, the Socialist economic collectives (hereinafter : organizations, units) and every citizen in research, creation and extensive utilization of new industrial designs for the manufacture of products and better satisfying the demand of the material and cultural life of the Community.

(2) This Decree specifies and protects the rights related to the creation and utilization of industrial designs.

Section 2

An industrial design means a specific appearance of a product embodied by lines, three-dimensional forms. < p="">

Section 3

An industrial design shall be recognized as new if, prior to the priority date of the application for

< p="">Section 4

The following designs shall not be protected under this Decree:

a - Designs of industrial or civil buildings;

b - Designs of products invisible in the process of utilization;

c - Designs determined merely by the functions of products or destinated merely to solve a technical task;

d - Designs of products having only an aesthetic value;

e - Industrial designs that are contrary to public order or socialist morality.

Section 5

(1) Natural persons or legal entities of foreign countries enjoy the same rights and benefits provided for in this Decree as Vietnamese persons or entities on the principle of equality, reciprocity and in accordance with the International Treaties to which is a party.

(2) Natural persons or legal entities of foreign countries wishing to secure legal protection of their industrial designs in shall apply through the agencies authorized by competent state authorities and approved by the National Office on Inventions.

Chapter II

LEGAL PROTECTION OF INDUSTRIAL DESIGNS

Section 6

(1) The state recognizes and protects ownership right in industrial designs of organizations, natural persons whose industrial designs are registered under this Decree; legitimate rights and interests of creator of industrial designs.

(2) The industrial design protection title is a certificate of industrial design. The certificate of industrial design certifies: the owner of the certificate of industrial design (hereafter "owner of

< p="">Section 7

The priority of an application for registration of industrial design shall be determined by the priority date. The priority date is:

(1) The date of the filing of the duly formulated application with the National Office on Inventions (NOI) of the State Committee for Science and technology (SCST).

(2) The date of the filing of the first application for registration in another country on the basis of the international convention for the protection of industrial property to which Vietnam is a party.

(3) the date of the public presentation of the industrial designs at an international official or officially recognized exhibition organized on the territory of any country party to the Paris convention for the protection of industrial property, provided the application for registration of that design is filed with within 6 months following the date on which the industrial design was displayed.

Section 8

(1) The status of creator of industrial design shall belong to the person whose creative work caused the industrial designs to be made.

(2) If the industrial design is the result of the creative work of two or more persons they all shall be recognized as joint creators of that industrial design.

< span="">shall not be recognized as joint creators of that industrial design.

Section 9

The owner of an industrial design refers to the organization or natural person to whom a certificate of industrial design is granted or the ownership right in industrial design is transferred.

Section 10

(1) An application for registration of industrial design shall be drawn up by the creator or his successor in title and filed with the National Office on Inventions of the State Committee for Science and Technology.

(2) In the case of the industrial designs that is made in the course of fulfillment of creator's duty within the organization, unit, or the industrial design for the making of which the creator has received assistance from organization, unit (hereinafter referred to as "service industrial design"), the said organization, unit is entitled to file an application for registration of that industrial design. The creator of service industrial design shall notify in writing the organization, unit about the industrial design created by

If within two months following the date of notification, that organization, unit has not undertaken the filing of the application for registration, the creator shall have the right to file an application for registration of that industrial design.

(3) The right to file an application for registration of an industrial design made in execution of a scientific and technological research and development contract shall belong, unless otherwise expressly stipulated by the contract, to the employing party.

(4) The right to file an application for registration of an industrial design made in a unit which applies a labour contract shall belong, unless otherwise expressly stipulated by the labour contract, to that unit.

(5) The applicant for registration of industrial design shall pay a fee for filing an application for registration of industrial design (application fee).

Section 11

The creator of industrial design (including the creator of industrial design mentioned in Subsection (3), Section 10 may authorize a natural person or legal entity, wishing to utilize the industrial design, to file an application for registration of industrial design.

Section 12

Unles otherwise expressly stipulated by the international treaties to which Vietnam is a party, any organization, natural person may apply for registration of an industrial design in foreign countries after having filed an application for registration of that industrial design in Vietnam.

Section 13

(1) The term of validity of certificate of industrial design shall be 5 years following the priority date of application. The owner of industrial design shall pay a fee for registration of industrial design (registration fee).

(2) The term mentioned in Subsection (1) may be prolonged not more than two further consecutive periods of 5 years of each, provided the owner of the industrial design shall file a request for renewal and pay a fee related to renewal.

(3) the registration fee and renewal fee mentioned above in Subsection (1) and (2) as well as other fees related to the filing of an application, publication of industrial design... shall be specified by the State Committee for Science and Technology in the instruction for implementation of this Decree.

(4) The certificate of industrial design shall lapse prematurely if the owner of industrial design files a request with the National Office on Inventions for renouncement of the protection.

Section 14

(1) During the term of validity of the certificate of industrial design:

a- Nobody may utilize the industrial design without an authorization of the owner.

b- The owner of an industrial design shall have the exclusive right to utilize his industrial design in productive, commercial activities according to the laws of the Socialist Republic of Vietnam.

(2) The form of the utilization of industrial design mentioned in Subsection (1) may < span="">

a- Manufacture of products on pattern of the industrial design;

b- Import, advertisement, sale or utilization of products manufactured on the pattern of the industrial design in the productive, commercial purposes.

Section 15

(1) The owner of an industrial design may transfer the ownership right or the right to utilize that industrial design to other organizations or persons; the transfer must be in writing and performed in accordance with the legislation in force.

(2) The contract to transfer the ownership right or the right to utilize the industrial design must be registered in the National Office on Inventions and the owner of the industrial design must pay a required fee (fee for registration of contract to transfer industrial design).

Section 16

(1) Where the particularly important industrial designs are not utilized by the owner or their utilization does not meet the requirement of the national economy, and the organizations, units that need them have been unable to secure the agreement of the owner of the industrial design to transfer the right to utilize the industrial design, the Chairman of the State Committee for Science and Technology may authorize the aforesaid organizations, units to utilize the industrial design.

(2) In the case referred to in Subsection (1) of this < span="">the party to whom a non-voluntary license is granted shall pay the owner of industrial design a reasonable compensation based on the agreement with the owner of industrial design. If the concerned parties do not reach agreement, they may appeal to the court.

Section 17

(1) The owner of an industrial design may appeal to the court if his ownership right in the industrial design is infringed.

(2) The person, who infringes the ownership right in an industrial design of the owner, shall be requested to terminate the infringement, to compensate the damages and to be subject to other forms of sanction in accordance with the legislation in force.

Section 18

The persons or legal entities having, independently of the applicant, started to utilize or made preparation for the utilization of an industrial design before the priority date of the application for registration of the industrial design, shall have the right to continue the utilization of the said industrial design but may neither extend that exploitation, nor increase its volume.

Chapter III

PROCEDURES OF REGISTRATION, EXAMINATION, GRANT OF CERTIFICATE AND PUBLICATION OF INDUSTRIAL DESIGNS.

Section 19

(1) Each application shall relate to one industrial design only and may include one or more alternatives of embodiment of that industrial design;

(2) An application for registration of industrial design shall comprise of:

a- Request for grant of certificate of industrial design;

b- Description of industrial design;

c- Photographs, drawings describing the substance of industrial design;

d- Certificate of contribution of each joint creator (in case industrial design is created by a collective of joint creators);

e- Receipt of fee paid for filing application for registration of industrial design.

(3) If an application for registration of industrial design is filed by the successor in title, it must be accompanied by an attestation of successor in title. If an application for registration of industrial design is filed by an organization or unit authorized by the creator, it must be accompanied also by < p="">

(4) If an application for industrial design is filed through the agency, it must be accompanied by a power of attorney of the applicant.

(5) If an applicant wishes to claim a priority provided for in Subsection (2) Section 7 he shall accompany the application a request made according to the instruction, and within 3 months following the filing date shall provide the National Office on Inventions with one copy of the first application certified by the Industrial Property Office of the receiving country.

(6) If an applicant wishes to claim an exhibition priority (Subsection (3), Section 7) he shall accompany the application a request made according to the instruction and a certification of exhibition organizers.

Section 20

(1) Within 15 days following the receipt of an application for registration of industrial design, the National Office on Inventions shall examine the application as to its conformity with Sections 4 and 19 of this Decree. If the application satisfies all the requirements, the National Office on Inventions shall confirm the priority date of the application and publish the industrial design in the Official Gazette of the National Office on Inventions.

(2) If the application fails to satisfy the requirements, the National Office on Inventions shall reject the application and inform the applicant of the reason of refusal.

(3) During the course of examination of an application for registration of industrial design, the National Office on Inventions may request the applicant to make amendment or complement to the application. If within 2 months following the date of receiving the request, the applicant does not fulfill the request of the National Office on Inventions, the application shall be considered as not having been filed.

(4) The applicant for registration of industrial design shall pay a requested fee for publication of industrial design (publication fee)

Section 21

(1) Within 3 months following the date of publication of an industrial design, any organization or person may file with the National Office on Inventions a notice of opposition to the grant of certificate of industrial design, stating the grounds for opposition.

(2) If within the term provided for in Subsection (1) no opposition has been filed, the National Office on Inventions shall grant a certificate of industrial design to the applicant.

(3) In case of an opposition having been filed, the National Office on Inventions shall inform the applicant of the grounds of opposition and shall ask the applicant to submit his point of view within 3 months.If the grounds are not correct the National Office on Inventions shall grant a certificate of industrial design to the applicant.

(4) In case of refusal to grant a certificate of industrial design, the National Office on Inventions shall inform the applicant, indicating the grounds of refusal.

(5) The industrial designs for which certificates of industrial designs have been granted shall be entered in the National Register of industrial designs and published in the Official Gazette issued by the National Office on Inventions of the State Committee for Science and Technology.

Section 22

(1) In case when the applicant does not agree with grounds to refuse a grant of certificate of industrial design (Subsection (4), Section 21) within 3 months following the date of receipt of notification, the applicant may file an appeal with the National Office on Inventions.

(2) Within 3 months following the receipt of the appeal, the National Office on Inventions shall be bound to settle and inform the appellant of the result.

(3) If the appellant does not agree with the decision of the National Office on Inventions he may file further appeal with the State Committee for Science and Technology. The decision of the Chairman of the State Committee for Science and Technology shall be final in respect of such appeal.

Section 23

(1) During the term of validity of certificate of industrial design, any natural person or legal entity may file a request with the National Office on Inventions for renouncement of validity of the certificate of industrial design, if:

a- Certificate of industrial design miscertified a creator;

b- Owner of industrial design has no right to receive the certificate of industrial design;

c- The industrial design to which a certificate has been granted does not meet the requirement referred to in Sections 2, 3 and 4 of this Decree.

The request must contain argumentative reason, and the person having submitted such request shall pay a fee (fee for requesting renouncement of validity). A copy of the request shall be transmitted to the owner of industrial design for consideration.

(2) Within 3 months following the receipt of the request for renouncement of validity, the National Office on Inventions shall settle the request.

(3) In the event of disagreement with the decision of the National Office on Inventions the parties concerned may:

a- File an appeal with the State Committee for Science and technology if the decision of the National Office on Inventions concerns the argument mentioned in paragraph (1.c) above, the decision of the Chairman of the State Committee for Science and Technology shall be final in respect of such request.

b- File an appeal with the Competent People's Court if the decision of the National Office on Inventions concerns the arguments mentioned in paragraph (1.a) and (1.b) above.

(4) Decision of renouncement of validity of certificate of industrial design shall be published in the Official Gazette of the National Office on Inventions of the State Committee for Science and Technology.

Chapter IV

REMUNERATION OF CREATORS OF INDUSTRIAL DESIGNS

Section 24

(1) During the term of validity of certificate of industrial design, the owner of an industrial design shall be responsible to pay the remuneration to the creator of that industrial design:

a- In the case of utilization of that industrial design;

b- In the case of transfer of the right to utilize that industrial design to other organization, person on the basis of contract referred to in Section 15.

(2) In the case of utilization of industrial design, the minimum amount of remuneration paid to the creator of the industrial design shall, in the absence of other agreement in this respect between the owner and the creator of the industrial design, be 1,5% of the profit derived from the utilization of that industrial design.

The amount of remuneration paid to the creator of the industrial design shall be deducted from the profit which belongs to the owner of that industrial design.

(3) In the case of transfer of the right to utilize an industrial design, the minimum amount of remuneration paid to the creator of the industrial design shall, in the absence of other agreement in this respect between the owner and the creator of the industrial design, be 8% of the amount derived from the transfer of the right to utilize that industrial design.

(4) The amount of remuneration shall be payable to the creator of an industrial design within 2 months after the expiration of each year of utilization of that industrial design or after the date on which the owner of that industrial design has received the profit from transfer of the right to utilize that industrial design.

Section 25

If the owner of an industrial design shall not pay the remuneration to the creator of that industrial design as provided for in Section 24 of this Decree, the creator or his successor in title shall have the right to file an appeal with the Competent People's Court.

Section 26

(1) The persons, who are responsible for giving technical assistance to the creator of an industrial design as well as for organization of, or participation in the first utilization of that industrial design, shall receive once the encouragement bonus not exceeding 50% of the amount of remuneration paid to the creator in the first year of utilization of that industrial design.

(2) The encouragement bonus paid to the persons giving technical assistance to the creator of an industrial design and organizing the first utilization of that industrial design shall be deducted from the profit which belongs to the organization, unit, and shall be paid at the same time as the remuneration paid to the creator after the first year of utilization.

Section 27

The heads of the organizations, units or branches concerned may use the adequate forms of encouragement like letters of congratulation, encouragement certificates, honorary titles... in view to encourage the creator of industrial designs having Technical-economical significance and extensive utilization. The creator of particularly significant industrial designs shall be rewarded by the Council of Ministers or shall receive the national honorary titles.

Chapter V

ORGANIZATION AND DIRECTION OF ACTIVITIES CONCERNING INDUSTRIAL DESIGNS

Section 28

(1) The State Committee for Science and Technology shall be responsible for organization of activities concerning industrial design throughout the country and for administration of legal protection of industrial design in accordance with the provisions of this Decree.

The National Office on Inventions shall be the department responsible for assisting the Chairman of the State Committee for Science and Technology in performing the above function.

(2) The ministries, organizations of ministerial rank, organizations directly subordinated to the Council of Ministers, people's committees of the provinces, towns and special districts directly subordinated to the central administration shall be responsible for organization and administration of activities concerning industrial design in their sectors or localities.

The sectoral or local authorities responsible for scientific and technical management shall assist the ministers, the Chairmen of the people's committees of the provinces, towns, special districts in the fulfillment of the appointed tasks.

(3) The enterprise corporations, joint enterprises, companies and general companies under central or local administration shall be responsible for organization and coordination of activities among enterprises under their competence with a view to create new industrial designs; to protect them and to utilize extensively the protected industrial designs in manufacture of new products within their area of management.

The department responsible for scientific-technical management in enterprises corporations, joint enterprises, companies, general companies shall be responsible for assisting the heads of above establishments in the fulfillment of the appointed tasks.

Section 29

(1) The heads of organizations, units shall be responsible for:

a- Organizing extensive activities concerning industrial design within their organizations, units, considering it as the important part of activities for improving quality of products as well as for research and manufacture of new products.

b- Providing favorable conditions for the workers, employees, especially the designers of products, technicians to participate actively in the research, creation of new industrial design satisfying requirements of production and other activities within the organizations, units.

c- Applying necessary measures for protection of industrial design created by workers, employees of the organizations, units.

d- Utilizing extensively and profitably protected industrial designs with a view to insure the high quality, beautiful and, attractive performance of the products satisfying aesthetic requirements of consumers and promotion of production of goods.

e- Encouraging and stimulating the creators of industrial design, the persons having assisted the creators and the organizers of utilization of industrial design in production according to the legislation in force.

(2) The organizations, units may cover the expenditure for realization of contracts to transfer the rights to utilize industrial design. The expenditure for above purposes shall be covered by the fund for the production development, fund assigned to the scientific and technological research or other source concerned.

(3) The scientific - technical management body of organization, unit (technical section or technical management body) shall be responsible for assisting the head of the organization, unit in the accomplishment of the appointed tasks.

Chapter VI

APPLICATION OF THIS DECREE

Section 30

The State Committee for Science and Technology shall be responsible for promulgating, either on its own initiative or in consultation with the organization concerned, instructions for interpretation and implementation of this Decree.

Section 31

The Ministers, the Chairmen of the State Committees, the Heads of Organizations directly subordinated to the Council of Ministers, the Chairmen of the people's committees of the provinces, towns, special districts directly subordinated to the central administration shall be responsible for the promotion and supervision of the implementation of this Decree.