Prerequisites for the registration of the industrial design right

The industrial design or model, as an object of industrial property, designates a specific appearance of a product materialized by three-dimensional configurations, lines, colors or a combination of these elements. Industrial design is one of the key factors that attract consumers to a product, making an important contribution to the success of the product. The beautiful, eye-catching industrial design of a product can be a factor that makes customers prefer to use it over another. Therefore, industrial designs are business assets, which means that to protect and exploit these assets, businesses should take appropriate measures, including registering the right to industrial designs.

However, as not all industrial designs are protected, a protected industrial design must fully satisfy the following conditions:

Objects that will not be protected by industrial design law

Objects that will not be protected as industrial designs are: (i) The appearance of a product, which is dictated by the technical characteristics of the product; (ii) Appearance of a civil or industrial work; (iii) Shape of a product, which is invisible when using the product;

For instancethe spiral design of construction screws is not covered by industrial design law.

Novelty, inventiveness and industrial applicability

Like patents, protected industrial designs must meet the conditions of novelty, inventiveness and industrial applicability. To respond to novelty, it is extremely important to keep the industrial design confidential. An industrial design that is already publicly disclosed, for example, through publication on a company’s website, advertising in a catalog or in marketing materials, will be considered “losing its novelty”. Vietnamese laws allow a “pardon” to prove the novelty of an industrial design, in which if the holder has the right to register to exhibit this industrial design in Vietnam national exhibition or exhibition official or recognized international standard, or to publish it in a scientific report; or if this design is made public by another person without the consent of the right holder, the industrial design or model shall not be deemed to have lost its novelty, since the application for registration of the industrial design or model is filed in six months from the date it was made public. However, it is difficult to provide evidence for this case; therefore, the right holder must keep the industrial design confidential before the filing date of the application for registration of the industrial design.

With regard to the inventiveness of an industrial design, an industrial design is considered not to involve an inventive step if it can be easily created by a person with average knowledge in the field concerned; for example, industrial designs which are a mere combination of known design features, or simply famous or widely known domestic and foreign product forms and construction works, or an imitation of widely known designs such as miniature car simulators…)

In addition, a protected industrial design must be capable of industrial application, i.e. it can be used as a model for the mass production of products whose appearance embodies such an industrial design by industrial or artisanal methods.

Industrial designs play an important role in the successful marketing of a company’s products, being an important part of the company’s brand identity. Industrial design rights should be considered a crucial factor in a company’s marketing and market share development strategies.

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