Nowadays, with the development of information technology, the situation of industrial design infringement is increasing more and more. What acts are considered to infringe upon the rights to industrial designs? What is the current process of handling industrial design violations? Let’s find out with Lawyer 247 about this content in the article below. Hope this article brings a lot of useful things to you.
Legal grounds
- Law on Intellectual Property – Consolidated Document 07/VBHN-VPQH 2019
What is an industrial design?
In Clause 13, Article 4 of the Law on Intellectual Property 2005 (amended and supplemented 2009, 2019), an industrial design is the external appearance of a product, represented by lines, shapes, colors, or combine those factors.
Industrial design makes a difference for each service and product of each manufacturer. Registering for the protection of a product’s industrial design will help industrial design owners protect their property against unauthorized use by others. That brings a lot of economic value to the business.
To be protected as an industrial design, three conditions must be met as prescribed in Article 63 of the Intellectual Property Law, specifically as follows:
Has novelty;
Be creative;
Capable of industrial application.
What is an industrial design violation?
The Intellectual Property Law stipulates acts of infringement of rights to industrial designs in Article 126, according to which, acts considered infringing upon rights to industrial designs include:
Using a protected industrial design or an industrial design that is not significantly different from such design during the validity period of the protection title without permission of the owner;
Using the industrial design without paying compensation according to the provision of temporary rights.
Where an industrial design registration applicant knows that the industrial design is being used by another person for commercial purposes and that person does not have the right to use it first, the applicant has the right to notify in writing to the applicant. the user about his/her application for registration, specifying the filing date and the date of publication of the application in the Industrial Property Official Gazette for that person to terminate the use or continue using.
In the case that the notified person continues to use the industrial design after being notified as above, when the industrial design patent is granted, the industrial design owner has the right to request the person who used the industrial design. industrial design users must pay a compensation equivalent to the price of licensing the right to use such industrial design within the respective scope and term of use.
What acts are considered to infringe upon the rights to industrial designs?
According to the Intellectual Property Law, the following acts will be considered as infringements of intellectual property rights with respect to industrial designs.
“Article 126. Acts of infringing upon rights to inventions, industrial designs and layout designs
The following acts are considered to infringe upon the rights of owners of inventions, industrial designs or layout designs:
- Use of a protected invention, a protected industrial design or an industrial design that is not significantly different from that design, the protected layout design or any original part of the design. such arrangement within the validity period of the protection title without the permission of the owner;
- Using inventions, industrial designs or layout designs without paying compensation according to the provisions on provisional rights specified in Article 131 of this Law.”
In addition, regarding industrial designs, Article 131 of the Law on Intellectual Property 2005 amended and supplemented in 2009 and 2019 specifically stipulates as follows:
“Article 131. Provisional rights to inventions, industrial designs and layout designs
- Where an applicant for registration of an invention or industrial design knows that the invention or industrial design is being used by another person for commercial purposes and that person does not have the right to use it first, the applicant may the right to notify the user in writing that he/she has filed a registration application, specifying the filing date and the date of publication of the application in the Industrial Property Official Gazette, for that person to terminate the use or continue to use the application. use.
- In case the notified person specified in Clauses 1 and 2 of this Article has been notified but continues to use the invention, industrial design or layout design, the invention patent, the utility solution patent, Industrial design patent, Semiconductor integrated circuit layout design registration certificate granted, the owner of invention, industrial design, layout design has the right to claim requires the user of the invention, industrial design or layout design to pay a compensation equivalent to the price of licensing the right to use such invention, industrial design or layout design within and respective shelf life.”
Thus, according to the above legal provisions, it can be seen that the act called infringement of an industrial design is an act:
- Using a protected industrial design or an industrial design that is not significantly different from that design during the validity period of the protection title without permission of the owner.
- Using the industrial design without paying compensation under the provision of provisional rights under Article 131 of the Intellectual Property Law.
Current process of handling industrial design violations
The process of handling industrial design violations will be carried out in the following order and procedures:
Firstly: Investigate, verify and collect design infringement information
This step is an important step to determine which industrial design infringer is? What is the form of encroachment? Where is the address of the infringing party….vv from which there will be the best plan to handle the infringement.
Secondly: Assessing infringements at the Institute of Intellectual Property Science
The purpose of the inspection is as follows:
- Look up and accurately identify the object of assessment and the content of the assessment
- To make sure that your industrial design has been infringed, real plagiarism by professionals. From there, there is a solid basis to charge the violator and evidence for the competent authorities to handle the case
Thirdly: Send a letter of warning (warning) of infringement to the infringer
After having the assessment results from the Institute of Intellectual Property Science and making sure that the industrial design has been infringed, the first step will not be to ask the competent state agency to solve it, but will send a letter warn violators for the purpose of negotiation between the two parties.
This is because negotiation is often the best option when there is a dispute. Besides, it will take more time to request the competent state to settle.
Fourthly: Request competent agencies to handle acts of infringement of designs
When it is not possible to negotiate, we can ask the competent authority to handle the violation of the violating unit by administrative measures.
Decree No. 97/2010/ND-CP sanctioning administrative violations in the field of industrial property details the application for handling of violations, competence to handle violations, and the process of receiving and viewing consider the request for handling of violations.
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Frequently asked questions
Pursuant to the provisions of Article 15 of Decree No. 99/2013/ND-CP dated August 29, 2013 of the Government on sanctioning of administrative violations in the field of industrial property, the agency with sanctioning competence acts of infringement of industrial designs include:
Science and Technology Inspection Agencies at all levels;
Market Management Agencies at all levels;
Customs offices at all levels;
Police agencies at all levels;
Provincial or district People’s Committee.
Infringement of an industrial design will be handled in the following forms:
Warning;
Monetary fine;
Other remedial measures such as confiscation of material evidences, suspension of production and business activities.
The specific fine levels are specified in Article 11 of Decree 99/2013/ND-CP stipulating the sanctioning of administrative violations in the field of industrial property.
Conclusion: So the above is Process of handling industrial design violations in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
