Chương VII Luật Sở hữu trí tuệ 2005: Điều kiện bảo hộ quyền sở hữu công nghiệp

Chapter VII

CONDITIONS FOR PROTECTION OF INDUSTRIAL PROPERTY RIGHTS

Section 1. CONDITIONS FOR PROTECTION OF INVENTIONS

Article 58. General conditions for inventions to be eligible for protection

1. An invention shall be eligible for protection in the form of the grant of an invention patent when it satisfies the following conditions:

 (a) It is novel;

 (b) It is of an inventive nature;

 (c) It is susceptible of industrial application.

2. Unless an invention is common knowledge, it shall be protected in the form of the grant of a utility solution patent when it satisfies the following conditions:

 (a) It is novel;

 (b) It is susceptible of industrial application.

Article 59. Objects ineligible for protection as inventions

The following objects shall be ineligible for protection as inventions:

1. Scientific discoveries or theories, mathematical methods.

2. Schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games and doing business; computer programs.

3. Presentations of information.

4. Solutions of aesthetic characteristics only.

5. Plant varieties, animal breeds.

7. Processes of plant or animal production which are principally of a biological nature, other than microbiological processes.

8. Human and animal disease prevention methods, diagnostic and treatment methods.

Article 60. Novelty of inventions

1. An invention shall be deemed novel if it has not yet been publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the invention registration application.

2. An invention shall be deemed not yet publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret.

3. An invention shall not be deemed to have lost its novelty if it is published in the following cases, provided that the invention registration application is filed within six (6) months from the date of publication:

 (a) It is published by another person without permission from the person having the right to register it as defined in article 86 of this Law;

 (b) It is published in the form of a scientific presentation by the person having the right to register it as defined in article 86 of this Law;

 (c) It is displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to register it as defined in article 86 of this Law.

Article 61. Inventive nature of inventions

An invention shall be deemed to be of an inventive nature if, based on technical solutions already publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam prior to the filing date or the priority date as applicable of the application for registration of the invention, the invention constitutes inventive progress and cannot be easily created by a person with average knowledge in the art.

Article 62. Inventions which are susceptible of industrial application

An invention shall be deemed to be susceptible of industrial application if it is possible to realize mass manufacture or production of products or repeated application of the process which is the subject matter of the invention, and to achieve stable results.

Section 2. CONDITIONS FOR PROTECTION OF INDUSTRIAL DESIGNS

Article 63. General conditions for industrial designs to be eligible for protection

1. An industrial design shall be eligible for protection when it satisfies the following conditions:

 (a) It is novel;

 (b) It is of a creative nature;

 (c) It is susceptible of industrial application.

Article 64. Objects ineligible for protection as industrial designs

The following items shall be ineligible for protection as industrial designs:

1. Outward appearance of a product which is necessarily due to the technical features of the product.

2. Outward appearance of civil or industrial construction works.

3. Shape of a product which is invisible during the use of the product.

Article 65. Novelty of industrial designs

1. An industrial design shall be deemed to be new if it significantly differs from other industrial designs which have been publicly disclosed by use or by means of written descriptions or in any other form either inside or outside Vietnam prior to the filing date or the priority date, as applicable, of the application for registration of the industrial design.

2. Two industrial designs shall not be deemed to be significantly different from each other if they are only different in features of appearance which are not easily noticeable and memorable and which cannot be used to distinguish such industrial designs overall.

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

4. An industrial design shall be deemed not to have lost its novelty if it is published in the following cases, provided that the application for registration of the industrial design is filed within six (6) months from the date of publication:

 (a) It is published by another person without permission from the person having the right to register it as defined in article 86 of this Law;

 (b) It is published in the form of a scientific presentation by the person having the right to register it as defined in article 86 of this Law;

 (c) It is displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to register it as defined in article 86 of this Law.

Article 66. Creativity of industrial designs

An industrial design shall be deemed to be creative if, based on industrial designs already publicly disclosed through use or by means of written descriptions or in any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the application for registration of the industrial design, the industrial design cannot be easily created by a person with average knowledge in the art.

Article 67. Industrial designs which are susceptible of industrial application

An industrial design shall be deemed to be susceptible of industrial application if it can be used as a model for mass manufacture of products with the outward appearance embodying such industrial design by industrial or handicraft methods.

Section 3. CONDITIONS FOR PROTECTION OF LAYOUT DESIGNS

Article 68 General conditions for layout designs to be eligible for protection

A layout design shall be eligible for protection when it satisfies the following conditions:

1. It is original.

2. It is commercially novel.

Article 69. Objects ineligible for protection as layout designs

The following items shall be ineligible for protection as layout designs:

1. Principles, processes, systems and methods operated by semiconductor integrated circuits.

2. Information or software contained in semiconductor integrated circuits.

Article 70. Originality of layout designs

1. A layout design shall be deemed to be original if it satisfies the following conditions:

 (a) It is the result of its author's creative labour;

 (b) It was not widely known among creators of layout designs or manufacturers of semi- conducting closed circuits at the time of its creation.

2. A layout design which is a combination of elements and common interconnections shall be deemed to be original only if such combination, taken overall, is original pursuant to the provisions of clause 1 of this article.

Article 71. Commercial novelty of layout designs

1. A layout design shall be deemed to be commercially novel if it has not yet been commercially exploited anywhere in the world prior to the filing date of the application for registration.

2. A layout design shall not be deemed to have lost its commercial novelty if the application for registration of the layout design is filed within two years from the date it was commercially exploited for the first time anywhere in the world by the person who has the right to register it as defined in article 86 of this Law or by his or her licensee.

3. Commercial exploitation of a layout design as stipulated in clause 2 of this article means any act of public distribution for commercial purposes of a semiconductor integrated circuit produced by incorporation of such layout design, or of a commodity containing such semiconductor integrated circuit.

Section 4. CONDITIONS FOR PROTECTION OF MARKS

Article 72. General conditions for marks to be eligible for protection

A mark shall be eligible for protection when it satisfies the following conditions:

1. It is a visible sign in the form of letters, words, drawings or images including holograms, or a combination thereof, represented in one or more colours.

2. It is capable of distinguishing goods or services of the mark owner from those of other subjects.

Article 73. Signs ineligible for protection as marks

The following signs shall be ineligible for protection as marks:

1. Signs identical with or confusingly similar to national flags or national emblems.

2. Signs identical with or confusingly similar to emblems, flags, armorial bearings, abbreviated names or full names of Vietnamese State bodies, political organizations, socio-political organizations, socio- politico-professional organizations, social organizations or socio-professional organizations or with international organizations, unless permitted by such bodies or organizations.

3. Signs identical with or confusingly similar to real names, aliases, pseudonyms or images of leaders, national heroes or famous personalities of Vietnam or foreign countries.

4. Signs identical with or confusingly similar to certification seals, check seals or warranty seals of international organizations which require that their signs must not be used, unless such seals are registered as certification marks by such organizations.

5. Signs which cause misunderstanding or confusion or which deceive consumers as to the origin, properties, use, quality, value or other characteristics of goods or services.

Article 74. Distinctiveness of marks

1. A mark shall be deemed to be distinctive if it consists of one or more easily noticeable and memorable elements, or of many elements forming an easily noticeable and memorable combination, and does not fall into the cases stipulated in clause 2 of this article.

2. A mark shall be deemed to be indistinctive if it is a sign falling into one of the following categories:

 (a) Simple shapes and geometric figures, numerals, letters or scripts of uncommon languages, except where such sign has been widely used and recognized as a mark;

 (b) Conventional signs or symbols, pictures or common names in any language of goods or services that have been widely and regularly used and known to many people;

 (c) Signs indicating time, place and method of production; category, quantity, quality, properties, ingredients, use, value or other characteristics descriptive of goods or services, except where such sign has acquired distinctiveness by use before the filing of the application for registration of the mark;

 (d) Signs describing the legal status and business sector of business entities;

 (dd) Signs indicating the geographical origin of goods or services, except where such sign has been widely used and recognized as a mark or registered as a collective mark or certification mark as stipulated in this Law;

 (e) Signs other than integrated marks which are identical with or confusingly similar to registered marks of identical or similar goods or services on the basis of applications for registration with earlier filing dates or priority dates, as applicable, including applications for registration of marks filed pursuant to a treaty of which the Socialist Republic of Vietnam is a member;

 (g) Signs identical with or confusingly similar to another person's mark which has been widely used and recognized for similar or identical goods or services before the filing date or the priority date, as applicable;

 (h) Signs identical with or confusingly similar to another person's mark which has been registered for identical or similar goods or services, the registration certificate of which has been invalidated for no more than five years, except where the ground for such invalidation was non-use of the mark pursuant to sub-clause (d) of article 95.1 of this Law;

 (i) Signs identical with or confusingly similar to another person's mark recognized as a well known mark which has been registered for goods or services which are identical with or similar to those bearing such well known mark, or for dissimilar goods or services if the use of such mark may affect the distinctiveness of the well known mark or the mark registration was aimed at taking advantage of the reputation of the well known mark;

 (k) Signs identical with or similar to another person's trade name currently in use if the use of such sign may cause confusion to consumers as to the origin of goods or services;

 (l) Signs identical with or similar to a protected geographical indication if the use of such sign may mislead consumers as to the geographical origin of goods;

 (m) Signs identical with, containing or being translated or transcribed from protected geographical indications for wines or spirits if such sign has been registered for use with respect to wines and spirits not originating from the geographical areas bearing such geographical indications;

 (n) Signs identical with or insignificantly different from another person's industrial design which has been protected on the basis of an application for registration of an industrial design with a filing date or priority date earlier than that of the application for registration of the mark.

Article 75. Criteria for evaluation of whether or not a mark is well known

The following criteria shall be taken into account when considering whether or not a mark is well known:

1. The number of relevant consumers who were aware of the mark by purchase or use of goods or services bearing the mark, or from advertising.

2. The territorial area in which goods or services bearing the mark are circulated.

3. Turnover of the sale of goods or provision of services bearing the mark or the quantity of goods sold or services provided.

4. Duration of continuous use of the mark.

5. Wide reputation of goods or services bearing the mark.

6. Number of countries protecting the mark.

7. Number of countries recognizing the mark as a well known mark.

8. Assignment price, licensing price, or investment capital contribution value of the mark.

Section 5. CONDITIONS FOR PROTECTION OF TRADE NAMES

Article 76. General conditions for trade names to be eligible for protection

A trade name shall be protected when it is capable of distinguishing the business entity bearing it from other business entities operating in the same business sector and locality.

Article 77. Objects ineligible for protection as trade names

Names of State bodies, political organizations, socio-political organizations, socio-politico-professional organizations, social organizations, socio-professional organizations and other entities not involved in business activities shall not be protected as trade names.

Article 78. Distinctiveness of trade names

A trade name shall be deemed to be distinctive when it satisfies the following conditions:

1. It consists of a proper name, except where the proper name was widely known by use.

2. It is not identical with or confusingly similar to a trade name which was used earlier by another person in the same business sector and locality.

3. It is not identical with or confusingly similar to another person's mark or a geographical indication which was protected before the date of use of such trade name.

Section 6. CONDITIONS FOR PROTECTION OF GEOGRAPHICAL INDICATIONS

Article 79. General conditions for geographical indications to be eligible for protection

A geographical indication shall be eligible for protection when it satisfies the following conditions:

1. The product bearing the geographical indication originates from the area, locality, territory or country corresponding to such geographical indication.

2. The product bearing the geographical indication has a reputation, quality or characteristics mainly attributable to geographical conditions of the area, locality, territory or country corresponding to such geographical indication.

Article 80. Objects ineligible for protection as geographical indications

The following objects shall be ineligible for protection as geographical indications:

1. Names or indications which have become generic names of goods in Vietnam.

2. Geographical indications of foreign countries where they are not, or no longer, protected or used.

3. Geographical indications identical with or similar to a protected mark, where the use of such geographical indication is likely to cause confusion as to the origin of products.

4. Geographical indications which mislead consumers as to the true geographical origin of products bearing such geographical indications.

Article 81. Reputation, quality and characteristics of products bearing geographical indications

1. Reputation of products bearing a geographical indication shall be determined on the basis of the trust of consumers in such products to the extent such products are widely known to and selected by consumers.

2. Quality and characteristics of products bearing a geographical indication shall be determined by one or more qualitative, quantitative or physically, chemically, microbiologically perceptible criteria which can be tested by technical means or by experts with appropriate testing methods.

Article 82. Geographical conditions relevant to geographical indications

1. Geographical conditions relevant to a geographical indication means natural and human factors decisive to reputation, quality and characteristics of products bearing such geographical indication.

2. Natural factors shall include climatic, hydrological, geological, topographical and ecological factors and other natural conditions.

3. Human factors shall include skills and expertise of producers, and traditional production processes of localities.

Article 83. Geographical areas bearing geographical indications

Geographical areas bearing geographical indications must have their boundaries accurately determined by words and by maps.

Section 7. CONDITIONS FOR PROTECTION OF TRADE SECRETS

Article 84. General conditions for trade secrets to be eligible for protection

A trade secret shall be eligible for protection when it satisfies the following conditions:

1. It is neither common knowledge nor easily obtainable.

2. When used in business activities, the trade secret will create for its holder advantages over those who do not hold or use it.

3. The owner of the trade secret maintains its secrecy by necessary means so that the secret will not be disclosed nor be easily accessible.

Article 85. Objects ineligible for protection as trade secrets

The following confidential information shall be ineligible for protection as trade secrets:

1. Personal identification secrets.

2. State management secrets.

3. National defence and security secrets.

4. Other confidential information unrelated to business.