Frequently Asked Questions – Industrial Design

Sets of photos or drawings must fully present design features of the industrial design sought to be protected, based on which any person with average knowledge in the art can identify that industrial design, and follow the following guidance:

a/ Photos or drawings must be clear and well defined; drawings must be presented with unbroken lines; the background of a photo or drawing must be monochrome and contrast with the industrial design; a photo or drawing must show only the product imbued with the industrial design sought to be protected (not accompanied with another product).

b/ Photos or drawings must show the industrial design on the same scale. The size of the industrial design shown in photos or drawings must neither be smaller than 90 mm x 120 mm nor larger than 190 mm x 277 mm.

c/ Photos and drawings must show the industrial design viewed in the same direction and in the following order: three-dimensional picture of the industrial design, front, rear, right-side- left-side, top-down and down-top shadows of the industrial design; shown shadows must be frontispieces.

d/ For an industrial design with symmetrical shadows, its photos or drawings are not required to show more symmetrical shadows, provided that such is clearly stated in the list of photos and drawings in the description.

e/ For the industrial design of an expandable product (for instance: box, package), shadows of the industrial design may be replaced with photos or drawings of the industrial design in an expanded state.

f/ Depending on the complexity of an industrial design, more photos or three-dimensional drawings from other angles, cross-sections or magnified pictures of parts, pictures of knocked down components of the product, etc., may be required to clearly show new and distinctive design features of the industrial design sought to be protected.

g/ For a product that have different usages (for example: a product with cover or foldable), there must be photos or drawings of its industrial design in different states.

h/ For the industrial design of a part of a complete product, there must be more photos or drawings illustrating the position for fitting or use of such part on the complete product.

i/ For each variation of the industrial design, there must be a set of photos or drawings fully presenting it according to the provisions of this Point.

j/ For a set of products, there must be three-dimensional pictures of the whole set and a set of photos or drawings of each product in the set according to the provisions of this Point.

Question 2: What are elements not regarded as design features of an industrial design?

The following elements are not regarded as design features of an industrial design:

(i) Configurations and lines dictated by the technical functions of the product (for example: the flat shape of data-recording disks is dictated by the relative motion between disks and reading heads);

(ii) Elements whose presence in the combination of signs gives no aesthetic impression (impression of the shape of the product remains unchanged with or without those elements; for example: if a change in a familiar configuration or line is not impressive enough to be noticed, the changed configuration or line will therefore be taken as old one);

(iii) Materials used for manufacture of the product;

(iv) Signs affixed or stuck on the product merely for the purpose of informing or guiding the origin, features, composition, utility and usage of the product, for example: words in a goods label;

(v) Size of the product, except for change of size of patterns of a fabric sample or similar materials.

Question 3:  Substantial and insubstantial design features?

Substantial design features are design features that are easily noticeable/memorable,  necessary and sufficient to identify an industrial design and distinguish it from another one used for the same type of product.

Any design features that fail to satisfy the above condition are referred to as insubstantial design features.

Question 4: Assessment of susceptibility of industrial application?

The industrial design stated in the application shall be considered susceptible of industrial application if any person with average knowledge in the art can, based on information on the industrial design supplied in the application, use that industrial design as a model to manufacture by an industrial or manual method a product with an appearance identical to that industrial design.

Question 5: What does is mean “average knowledge”- person?

Person with “average knowledge” in the art means a person who has ordinary technical practice skills and is acquainted with publicly available general knowledge in the art.

Question 6: What is the object stated in the application shall be considered insusceptible of industrial application?

In the following cases, the object stated in the application shall be considered insusceptible of industrial application:

a. It is the shape of a product with an unfixed state of existence (products in gaseous or liquid form);

b. A product whose shape identical to the object stated in the application can only be created with special skills or it is impossible to repeatedly manufacture a product whose shape identical to the object stated in the application;

Question 7: What is novelty of industrial designs?

The industrial design stated in an application shall be considered novel if:

a. An industrial design shall be considered as new if it significantly differs from other industrial designs that are already publicly disclosed inside or outside the country by use, by written description or in any way prior to the filing date, or where priority is claimed, the priority date of the industrial design registration application.

b. Though a control industrial design is found in the mandatory minimum information source but the industrial design stated in the application has at least one substantial design feature not found in (not belonging to) the gathering of substantial design features of the control industrial design; or

c. The control industrial design is the very industrial design stated in the application published/disclosed in the cases:

–     An industrial design shall be considered as not yet been publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret.

–     An industrial design shall be considered as not lacking of novelty if it was published in the following circumstances, provided that the industrial design registration application is filed within 6 months from the date of publication:

o   The industrial design was published by another person without permission of the person having the right to registration as provided for in Article 86 of this Law;

o   The industrial design was published in the form of a scientific presentation by the person having the right to registration as provided;

o   The industrial design was exhibited at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to registration as provided

Question 8: What is creativity of industrial designs?

An industrial design shall be considered as creative if, based on all industrial designs already publicly disclosed inside or outside the country prior to the filing date, or where priority is claimed, the priority date of the industrial design registration application, it cannot be easily created by a person with ordinary skill in the art.

In the following cases, the industrial design stated in an application shall be considered noncreative:

(i) It is a simple combination of known design features (publicly disclosed design features are put together or assembled in such a simple way as replacement, interchange of positions, increase or decrease of quantity);

(ii) It is a reproduction/imitation of part of or the whole inherent natural shape of a tree, fruit or animal, shapes of geometric figures (round, ellipse, triangle, square, rectangular, regular polygons and prisms, cross-sections of which are foregoing figures), which are widely known.

(iii) It is a simple reproduction of the shape of a product or work well known or publicly known in

Vietnam or worldwide;

(iv) It is an imitation of an industrial design in another field, if such an imitation is widely known in reality (for example: toys imitating cars, motorcycles, etc.).