Chương VIII Luật Sở hữu trí tuệ 2005: Xác lập quyền sở hữu công nghiệp đối với sáng chế, kiểu dáng công nghiệp, thiết kế bố trí, nhãn hiệu, chỉ dẫn địa lý

Chapter VIII

ESTABLISHMENT OF INDUSTRIAL PROPERTY RIGHTS TO INVENTIONS, INDUSTRIAL DESIGNS, LAYOUT DESIGNS, MARKS AND GEOGRAPHICAL INDICATIONS

Section 1. REGISTRATION OF INVENTIONS, INDUSTRIAL DESIGNS, LAYOUT DESIGNS, MARKS AND GEOGRAPHICAL INDICATIONS

Article 86. Right to register inventions, industrial designs and layout designs

1. The following organizations and individuals shall have the right to register inventions, industrial designs and layout designs:

 (a) Authors who have created inventions, industrial designs or layout designs by their own labour and at their own expense;

 (b) Organizations or individuals who have supplied funds and material facilities to authors in the form of job assignment or hiring, unless otherwise agreed by the parties involved and provided that such agreements are not contrary to the provisions of clause 2 of this article.

2. The Government shall provide regulations on the right to register inventions, industrial designs and layout designs created by using material and technical facilities and funds from the State Budget.

3. Where a number of organizations and individuals have jointly created or invested in the creation of an invention, industrial design or layout design, such organizations and individuals shall all have the registration right which may only be exercised with the consensus of all.

4. A person who has the registration right as stipulated in this article may assign such right to other organizations or individuals by a written contract, bequest or inheritance in accordance with law, even where a registration application has already been filed.

Article 87. Right to register marks

1. Organizations and individuals shall have the right to register marks to be used for goods such organizations or individuals produce or for services such organizations or individuals provide.

2. Any organization or individual lawfully engaged in commercial activities shall have the right to register a mark for a product which the latter puts onto the market but which was manufactured by others, provided that the manufacturer does not use such mark for a product and does not object to such registration.

3. Lawfully established collective organizations shall have the right to register collective marks to be used by the members of the collective organization pursuant to the regulations of the collective organization on use of collective marks. For signs indicating geographical origins of goods or services, an organization with the right to register means a local collective organization of [other] organizations or individuals engaged in production or trading in the relevant locality.

4. Organizations with the function of controlling and certifying quality, properties, origin or other relevant criteria of goods or services shall have the right to register certification marks, provided that such organizations are not engaged in production or trading of such goods or services.

5. Two or more organizations or individuals shall have the right to jointly register a mark in order to become its co-owners on the following conditions:

 (a) Such mark is used in the names of all co-owners or used for goods or services which are produced or traded with the participation of all co-owners;

 (b) The use of such mark does not cause confusion to consumers as to the origin of goods or services.

6. Persons with the registration right stipulated in clauses 1, 2, 3, 4 and 5 of this article, including those who have already filed registration applications, may assign the registration right to other organizations or individuals by a written contract, bequest or inheritance in accordance with law, provided that the assignee satisfies the conditions applicable to persons with the registration right.

7. For a mark protected in a country being a contracting party to a treaty of which the Socialist Republic of Vietnam is a member, which treaty prohibits the representative or agent of a mark owner from registering such mark, the representative or agent shall not be permitted to register such mark without agreement from the mark owner unless there is a justifiable reason.

Article 88. Right to register geographical indications

The right to register Vietnamese geographical indications belongs to the State.

The State shall permit organizations and individuals producing products bearing geographical indications, collective organizations representing such organizations or individuals, and administrative bodies of localities to which such geographical indications pertain, to exercise the right to register geographical indications. Persons who exercise the right to register geographical indications shall not become owners of such geographical indications.

Article 89. Methods of filing an application for registration of establishment of industrial property rights

1. Vietnamese organizations and individuals, foreign individuals permanently residing in Vietnam, and foreign organizations and individuals having production or business establishments in Vietnam shall file applications for registration of establishment of industrial property rights either directly or through their lawful representatives in Vietnam.

2. Foreign individuals not permanently residing in Vietnam and foreign organizations and individuals without production or business establishments in Vietnam shall file applications for registration of establishment of industrial property rights through their lawful representatives in Vietnam.

Article 90. "First to file" principle

1. Where two or more applications for registration are filed by different parties for the same invention, for registration of industrial designs identical with or insignificantly different from each other, for registration of marks identical with or confusingly similar to each other, or for identical or similar goods or services, a protection title may only be granted to the valid application with the earliest priority or filing date amongst applications which satisfy all conditions for the grant of a protection title.

2. Where there are two or more applications satisfying all the conditions for the grant of a protection title and having the same earliest priority or filing date, a protection title may only be granted to a single application from such applications with agreement from all applicants. Without such an agreement, all such applications shall be refused the grant of a protection title.

Article 91. Priority principle

1. An applicant for registration of an invention, industrial design or mark may claim priority on the basis of the first application for registration of protection of the subject matter if the following conditions are fully satisfied:

 (a) The first application was filed in Vietnam or in a country being a contracting party to a treaty of which the Socialist Republic of Vietnam is also a member, containing provisions on priority right, or in a country which has agreed with Vietnam to apply such provisions;

 (b) The applicant is a citizen of Vietnam or of a country defined in sub-clause (a) of this clause, who resides or has a production or business establishment in Vietnam or in a country defined in sub-clause (a) of this clause;

 (c) The claim for the priority right is clearly stated in the application and a copy of the first application certified by the receiving office is enclosed;

 (d) The application is filed within the time-limit provided for in a treaty of which Vietnam is a member.

2. In an application for registration of an invention, industrial design or mark, the applicant may claim the priority right on the basis of different earlier filed applications, provided that the similarity between the contents of such earlier applications and the present application are indicated.

3. An application for registration of industrial property which enjoys priority right shall bear the priority date being the filing date of the first application.

Article 92. Protection titles

1. A protection title shall recognize the owner of the invention, industrial design, layout design or mark (hereinafter all referred to as protection title owners); the author of the invention, industrial design or layout design; and the subject matter, scope and term of protection.

2. A protection title of a geographical indication shall record the organization managing such geographical indication, the organization or individual having the right to use such geographical indication, the protected geographical indication, the particular characteristics of products bearing such geographical indication, and the particular characteristics of geographical conditions and geographical areas bearing such geographical indication.

3. Protections title shall include an invention patent, utility solution patent, industrial design patent, certificate of registered design of semi-conducting closed circuits, certificate of registered mark and certificate of registered geographical indication.

Article 93. Validity of protection titles

1. Protection titles shall be valid throughout the entire territory of Vietnam.

2. An invention patent shall be valid from the grant date until the end of twenty (20) years after the filing date.

3. A utility solution patent shall be valid from the grant date until the end of ten (10) years after the filing date.

4. An industrial design patent shall be valid from the grant date until the end of five (5) years after the filing date and may be renewed for two consecutive terms, each of five (5) years.

5. A certificate of registered design of semi-conducting closed circuits shall be valid from the grant date until the earliest date among the following:

 (a) The end of ten (10) years after the filing date;

 (b) The end of ten (10) years after the date the layout design was first commercially exploited anywhere in the world by a persons with the registration right or his or her licensee;

 (c) The end of fifteen (15) years after the date of creation of the layout design.

6. A certificate of registered mark shall be valid from the grant date until the end of ten (10) years after the filing date and may be renewed for many consecutive terms, each of ten (10) years.

7. A certificate of registered geographical indication shall have indefinite validity starting from the grant date.

Article 94. Maintenance and extension of validity of protection titles

1. In order to maintain the validity of an invention patent or a utility solution patent, the owner must pay a validity maintenance fee.

2. In order to have the validity of an industrial design patent or a certificate of registered mark extended, the owner must pay a validity extension fee.

3. Fee rates and procedures for maintaining or extending validity of protection titles shall be stipulated by the Government.

Article 95. Termination of validity of protection titles

1. The validity of a protection title shall be terminated in the following cases:

 (a) The owner fails to pay the stipulated validity maintenance or extension fee;

 (b) The owner declares relinquishment of the industrial property rights;

 (c) The owner no longer exists, or the owner of a certificate of registered mark is no longer engaged in business activities and does not have a lawful heir;

 (d) The mark has not been used by its owner or the licensee of the owner without justifiable reason for five (5) consecutive years prior to a request for termination of validity, except where use is commenced or resumed at least three (3) months before the request for termination;

 (dd) The owner of a certificate of registered collective mark fails to supervise or ineffectively supervises the implementation of the regulations on use of the collective mark;

 (e) The owner of a certificate of registered certification mark violates the regulations on use of the certification mark or fails to supervise or ineffectively supervises the implementation of such regulations;

 (g) The geographical conditions decisive to reputation, quality or special characteristics of products bearing a geographical indication have changed resulting in the loss of such reputation, quality or characteristics of products.

2. Where the owner of an invention protection title fails to pay the validity maintenance fee before the stipulated time-limit, the validity of such protection title shall, upon the expiration of such time-limit, automatically terminate as from the first day of the first valid year for which the validity maintenance fee has not been paid. The State administrative body for industrial property rights shall record such termination in the National Register of Industrial Property and publish it in the Official Gazette of Industrial Property.

3. Where the owner of a protection title declares relinquishment of the industrial property right as stipulated in sub-clause (b) of clause 1 of this article, the State administrative body for industrial property rights shall decide to terminate the validity of such protection title from the date of receipt of the owner's declaration.

4. Organizations and individuals shall have the right to request the State administrative body for industrial property rights to terminate the validity of protection titles in cases specified in sub-clauses (c), (d), (dd), (e) and (g) of clause 1 of this article, provided that such organization or individual pays fees and charges. Based on the result of the examination of a request for termination of validity of a protection title and the opinions of the parties involved, the State administrative body for industrial property rights shall issue a decision on termination of validity of a protection title or notify refusal to terminate the validity of the protection title.

5. The provisions of clauses 1, 3 and 4 of this article shall also apply to the termination of validity of international registrations of marks.

Article 96. Cancellation of effectiveness of protection titles

1. A protection title shall be entirely invalidated in the following cases:

 (a) The applicant for registration has neither had nor been assigned the right to register the invention, industrial design, layout design or mark;

 (b) The industrial property object failed to satisfy the protection conditions at the time the protection title was granted.

2. A protection title shall be partly invalidated as to the part which failed to satisfy the protection conditions.

3. Any organization or individual may request the State administrative body for industrial property rights to invalidate a protection title in the cases specified in clauses 1 and 2 of this article, provided that such applicant pays fees and charges. The statute of limitations for exercising the right to request invalidation of a protection title shall be the whole term of protection of the protection title. For marks, such statute of limitations shall be five (5) years from the grant date, except where the protection title was granted as a result of dishonesty of the applicant.

4. Based on the result of the examination of a request for invalidation of a protection title and the opinions of the parties involved, the State administrative body for industrial property rights shall issue a decision on entire or partial invalidation of the protection title or shall notify refusal to invalidate.

5. The provisions of clauses 1, 2, 3 and 4 of this article shall also apply to the invalidation of international registrations of marks.

Article 97. Amendments to protection titles

1. The owner of a protection title may request the State administrative body for industrial property rights to make amendments to the following information in such protection title, provided that the prescribed fees and charge are paid:

 (a) Changes of, and corrections of errors to the name and address of the author or the protection title owner;

 (b) Amendments to the description of particular characteristics, quality or geographical area bearing a geographical indication; amendments to the regulations on use of collective marks or the regulations on use of a certification mark.

2. At the request of the owner of a protection title, the State administrative body for industrial property rights must correct errors caused by its fault in such protection title, and in such case the protection title owner shall not be liable to pay fees and charges.

3. The owner of a protection title may request the State administrative body for industrial property rights to narrow the scope of industrial property rights. In such a case, the corresponding industrial property registration application shall be substantively re-examined and the requesting party shall pay a fee for substantive examination.

Article 98. National Register of Industrial Property

1. The National Register of Industrial Property means the document recording the establishment, change and transfer of industrial property rights to inventions, industrial designs, layout designs, marks and geographical indications pursuant to this Law.

2. Decisions on grant of protection titles, principal contents of protection titles and decisions on amendment to, termination of validity or cancellation of validity of protection titles, and decisions on registration of industrial property right transfer contracts shall all be recorded in the National Register of Industrial Property.

3. The National Register of Industrial Property shall be compiled and kept by the State administrative body for industrial property rights.

Article 99. Publication of decisions relating to protection titles

Decisions on the grant, termination of validity, cancellation of validity or amendment of protection titles for industrial property rights shall be published by the State administrative body for industrial property rights in the Official Gazette of Industrial Property within sixty (60) days as from the date of issuance of such decision.

Section 2. APPLICATIONS FOR REGISTRATION OF INDUSTRIAL PROPERTY

Article 100. General requirements applicable to applications for registration of industrial property

1. An industrial property registration application shall contain the following documents:

 (a) Declaration for registration, made on the stipulated form;

 (b) Documents, samples and information identifying the industrial property object registered for protection as specified in articles 102 to 106 inclusive of this Law;

 (c) Power of attorney, if the application is filed through a representative;

 (d) Documents evidencing the registration right, if such right is acquired by the applicant from another person;

 (dd) Documents evidencing the priority right, if such right is claimed;

 (e) Receipt for payment of fees and charges.

2. Industrial property registration applications and source documents of transactions between an applicant and the State administrative body for industrial property rights shall be made in Vietnamese, except for the following documents which may be made in another language but shall be translated into Vietnamese at the request of the State administrative body for industrial property rights:

 (a) Power of attorney;

 (b) Documents evidencing the registration right;

 (c) Documents evidencing the priority right;

 (d) Other documents supporting the application.

3. Documents evidencing the priority right in an industrial property registration application shall include:

 (a) A copy of the first application(s) certified by the receiving office;

 (b) Deed of assignment of priority right if such right is acquired from another person.

Article 101. Requirements on the uniformity of an application for registration of industrial property

1. Each industrial property registration application shall request the grant of only one protection title for a single industrial property object, except for the cases specified in clauses 2, 3 and 4 of this article.

2. Each registration application may request the grant of one invention patent or one utility solution patent for a group of inventions that are technically linked to form a single common inventive idea.

3. Each registration application may request the grant of one industrial design patent for several industrial designs in the following cases:

 (a) Industrial designs of a set of products consisting of numerous items expressing a single common inventive idea and used together or for a common purpose;

 (b) An industrial design accompanied by one or more variants being variations of such industrial design which express a single common inventive idea and which are not significantly different from such industrial design.

4. Each registration application may request the grant of one certificate of registered mark for one mark to be used for one or more different goods or services.

Article 102. Requirements on applications for registration of inventions

1. Documents identifying an invention registered for protection in an application for invention registration shall include a description of the invention and an abstract of the invention. The invention description shall contain a descriptive section and the scope of protection of the invention.

2. The description of an invention must satisfy the following conditions:

 (a) Fully and clearly disclose the nature of the invention to the extent that such invention may be realized by a person with average knowledge in the art;

 (b) Briefly explain accompanying drawings, if it is required to further clarify the nature of the invention;

 (c) Clarify the novelty, inventive step and susceptibility of industrial application of the invention.

3. The scope of protection of an invention shall be expressed in the form of a combination of technical specifications which are necessary and sufficient to identify the scope of the rights to such invention, compatible with the description of invention and drawings.

4. An abstract of an invention must disclose principal features of the nature of such invention.

Article 103. Requirements on applications for registration of industrial designs

1. Documents identifying an industrial design which needs to be protected in an application for registration of an industrial design shall include a description and a set of photos or drawings of such industrial design. The industrial design description shall consist of a descriptive section and a section on scope of protection of such industrial design.

2. The descriptive section of an industrial design must satisfy the following conditions:

 (a) Fully disclose all features expressing the nature of the industrial design and clearly identify features which are new, different from the least different known industrial design, and consistent with the set of photos or drawings;

 (b) Where the application for registration of the industrial design consists of variants, the descriptive section must fully show these variants and clearly identify distinctions between the principal variant and other variants;

 (c) Where the industrial design stated in the registration application is that of a set of products, the descriptive section must fully show features of each product of the set.

3. The section on scope of protection of an industrial design must clearly define features which need to be protected, including features which are new and different from similar known industrial designs.

4. The set of photos and drawings must fully define the features of the industrial design.

Article 104. Requirements on applications for registration of layout designs

Documents, samples and information identifying a layout design which needs to be registered for protection in an application for registration of a layout design shall include:

1. Drawings and photos of the layout-design.

2. Information on the functions and structure of semi-conducting closed circuits produced under the layout design.

3. Samples of semi-conducting closed circuits produced under the layout design, if such layout design has been commercially exploited.

Article 105. Requirements on applications for registration of marks

1. Documents, samples and information identifying a mark which needs to be registered for protection in an application for registration of a mark shall include:

 (a) A sample of the mark and a list of goods or services bearing the mark;

 (b) Regulations on use of collective marks or regulations on use of certification marks.

2. The sample of the mark must be described in order to clarify elements of the mark and the comprehensive meaning of the mark, if any; where the mark consists of words or phrases of hieroglyphic languages, such words or phrases must be transcribed; where the mark consists of words or phrases in a foreign language, such words or phrases must be translated into Vietnamese.

3. Goods or services listed in an application for registration of a mark must be classified into appropriate groups in accordance with the Classification List under the Nice Agreement on International Classification of Goods and Services for the purpose of mark registration, and published by the State administrative body for industrial property rights.

4. The regulations on use of collective marks shall contain the following principal contents:

 (a) Name, address, grounds of establishment and operation of the collective organization being the owner of the mark;

 (b) Criteria for becoming a member of the collective organization;

 (c) List of organizations and individuals permitted to use the mark;

 (d) Conditions for use of the mark;

 (dd) Measures for dealing with breaches of regulations on use of the mark.

5. The regulations on use of certification marks shall contain the following principal contents:

 (a) The organization or individual being the mark owner;

 (b) Conditions for using the mark;

 (c) Characteristics of goods or services certified by the mark;

 (d) Methods of evaluating characteristics of goods or services and methods of controlling the use

of the mark;

 (dd) Expenses to be paid by the mark user for certification and protection of the mark, if any.

Article 106. Requirements on applications for registration of geographical indications

1. Documents, samples and information identifying a geographical indication which needs to be registered for protection in an application for registration of a geographical indication shall include:

 (a) The name or sign being the geographical indication;

 (b) The product bearing the geographical indication;

 (c) Description of peculiar characteristics and quality, or reputation of the product bearing the geographical indication and particular elements of natural conditions decisive to the peculiar characteristics and quality, or reputation of the product (hereinafter referred to as the description of peculiar characteristics);

 (d) Map of the geographical area bearing the geographical indication;

 (dd) Documents evidencing that the geographical indication is under protection in the country of origin in the case of a foreign geographical origin.

2. The description of peculiar characteristics must contain the following principal contents:

 (a) Description of the relevant product including raw materials, and physical, chemical, microbiological and perceptible properties of the product;

 (b) Method of identification of the geographical area bearing the geographical indication;

 (c) Evidence proving that the product originates from such geographical area within the meaning stipulated in article 79 of this Law;

 (d) Description of local and stable methods of production and processing;

 (dd) Information on relationship between the peculiar characteristics and quality, or reputation of the product and the geographical conditions as stipulated in article 79 of this Law;

 (e) Information on the mechanism of self-control of the peculiar characteristics or quality of the product.

Article 107  Authorized representation in procedures related to industrial property rights

1. Authorization for carrying out procedures related to the establishment, maintenance, extension, amendment, termination and invalidation of protection titles must be made in writing in the form of a power of attorney.

2. A power of attorney must contain the following principal contents:

 (a) Full name and address of the principal and of the attorney;

 (b) Scope of authorization;

 (c) Valid term of authorization;

 (d) Date of making the power of attorney;

 (dd) Signature and seal (if any) of the principal.

3. A power of attorney without any valid term shall be considered valid indefinitely, and validity shall be terminated only when the principal declares termination of validity.

Section 3. PROCEDURES FOR PROCESSING APPLICATIONS FOR REGISTRATION OF INDUSTRIAL PROPERTY AND FOR GRANTING PROTECTION TITLES

Article 108. Receipt of applications for registration of industrial property, and filing dates

1. An application for registration of industrial property shall only be received by the competent State administrative body for industrial property rights if the application consists of at least the following documents and information:

 (a) A declaration for registration of an invention, industrial design, layout design, mark or geographical indication, which includes sufficient information to identify the applicant and in the case of a mark a sample of the mark and a list of goods or services bearing the mark;

 (b) Description, including the scope of protection, in the case of an application for registration of an invention; a set of photos and drawings and a description in the case of an application for registration of an industrial design; and a description of peculiar characteristics of a product bearing a geographical indication, in the case of an application for registration of a geographical indication;

 (c) Receipt for payment of filing fee.

2. The filing date shall be the date on which the application is received by the competent State administrative body for industrial property rights, or the international filing date in the case of an application filed pursuant to an international treaty.

Article 109.  Formal examination of applications for registration of industrial property

1. Applications for registration of industrial property shall be subject to formal examination for evaluation of their validity.

2. An application for registration of industrial property shall be considered invalid in the following cases:

 (a) It does not fulfil the formal requirements;

 (b) The subject matter stated in the application is ineligible for protection;

 (c) The applicant does not have the registration right, including where the registration right belongs to more than one organization or individual but one or more of them do not agree to the filing;

 (d) The application is filed in contravention of regulations on the filing method stipulated in article 89 of this Law;

 (dd) The applicant fails to pay fees and charges.

3. For applications for registration of industrial property falling into a case stipulated in clause 2 of this article, the State administrative body for industrial property rights shall carry out the following procedures:

 (a) Issue a notice of intended refusal to accept the invalid application, clearly stating reasons and setting a time-limit for the applicant to correct errors or to object to such intended refusal;

 (b) Issue a notice of refusal to accept the invalid application if the applicant fails to correct errors, improperly corrects errors or fails to make a justifiable objection to such intended refusal stipulated in sub-clause (a) of this clause;

 (c) Issue a notice of refusal to grant a certificate of registered design of semi-conducting closed circuits in case of a closed circuit registration application;

 (d) Carry out procedures specified in clause 4 of this article if the applicant properly corrects errors or makes a justifiable objection to the intended refusal to accept the invalid application stipulated in sub-clause (a) of this clause.

4. For industrial property registration applications not falling into a case stipulated in clause 2 of this article, or in a case stipulated in sub-clause (d) of clause 3 of this article, the State administrative body for industrial property rights shall issue a notice of acceptance of the valid application or carry out procedures for granting a protection title and recording it in the National Register of Industrial Property as stipulated for in article 118 of this Law, applicable to layout design registration applications.

5. Mark registration applications rejected according to the provisions of clause 3 of this article shall be deemed not to have been filed, except where they serve as grounds for claims for priority right.

Article 110. Publication of applications for registration of industrial property

1. Applications for registration of industrial property which have been accepted as being valid by the State administrative body for industrial property rights shall be published in the Official Gazette of Industrial Property in accordance with the provisions of this article.

2. Applications for registration of inventions shall be published in the 19th month as from the filing date or the priority date, as applicable, or at an earlier time at the request of the applicant.

3. Applications for registration of industrial designs, marks or geographical indications shall be published within two months as from the date such application is accepted as being valid.

4. Applications for registration of layout designs shall be published by mode of permitting direct access at the competent State administrative body for industrial property rights, provided that reproduction shall not be permitted. Access to confidential information in an application shall only be permitted to competent authorities and parties involved in the process of carrying out procedures for invalidating protection titles or the process of carrying out procedures for dealing with infringement of rights. Principal information on an application for registration of a layout design and the protection title for a layout design shall be published within two months as from the date of grant of such protection title.

Article 111. Confidentiality of applications for registration of inventions and industrial designs prior to publication thereof

1. Before applications for registration of inventions and industrial designs are published in the Official Gazette of Industrial Property, the State administrative body for industrial property rights must keep information therein confidential.

2. State employees of the State administrative body for industrial property rights who disclose information in applications for registration of inventions and industrial designs shall be disciplined; if the information disclosed causes loss and damage to applicants, such employees must pay compensation therefor in accordance with law.

Article 112. Third party opinions on the grant of protection titles

As from the date an application for registration of industrial property is published in the Official Gazette of Industrial Property up until prior to the date of issuance of a decision on grant of a protection title, any third party shall have the right to express an opinion to the competent State administrative body for industrial property rights on the grant or refusal to grant a protection title for such application. Such opinions must be made in writing and be accompanied by documents or must quote the source of information.

Article 113. Request for substantive examination of applications for registration of inventions

1. Within forty two (42) months after the filing date or the priority date, as applicable, an applicant or any third party may request the competent State administrative body for industrial property rights to substantively examine an application [for registration of an invention], provided that the substantive examination fee is paid.

2. The time-limit for making a request for substantive examination of an application for registration of an invention involving a request for a utility solution patent shall be thirty six (36) months from the filing date or the priority date, as applicable.

3. Where no request for substantive examination is filed within the time-limit specified in clauses 1 and 2 of this article, the application for registration of the invention shall be deemed to have been withdrawn at the expiry of such time-limit.

Article 114. Substantive examination of applications for registration of industrial property

1. The following applications for registration of industrial property shall be substantively examined for evaluation of the eligibility for grant of protection titles for subject matter stated in such applications under protection conditions and for determination of the respective scope of protection:

 (a) Applications for registration of inventions which have already been accepted as being valid and involve requests for substantive examination filed according to regulations;

 (b) Applications for registration of industrial designs, marks and geographical indications which have been accepted as being valid.

2. Applications for registration of layout designs shall not be substantively examined.

Article 115. Amendment, supplementation, division and conversion of applications for registration of industrial property

1. An applicant shall have the following rights before the competent State administrative body for industrial property rights notifies a refusal or decides to grant a protection title:

 (a) To amend or supplement the application;

 (b) To divide the application;

 (c) To request the recording of changes in name or address of the applicant;

 (d) To request the recording of change of the applicant as a result of application transfer under a contract, bequest or inheritance, or under a decision of a competent agency;

 (dd) To convert an application for registration of an invention involving a request for an invention patent into an application for registration of an invention involving a request for a utility solution patent, and vice versa.

2. The applicants for completion of the procedures stipulated in clause 1 of this article must pay fees and charges.

3. Any amendment or supplementation of an application for registration of industrial property must not expand the scope of the subject matter already disclosed or stated in such application, and must not change the nature of the subject matter subject to registration stated in the application and must ensure the uniformity of the application.

4. In a case of division of an application, the filing date of the divided application shall be deemed to be the filing date of the original application.

Article 116. Withdrawal of applications for registration of industrial property

1. Before the competent State administrative body for industrial property rights decides or refuses to grant a protection title, the applicant shall have the right to make a written declaration on the withdrawal of the application for registration of industrial property in his or her own name or through an industrial property representation service organization, provided that a power of attorney clearly states authorization for withdrawal of the application.

2. As from the time an applicant declares withdrawal of the application, all further procedures related to such application shall cease; fees and charges already paid in relation to the procedures which have not yet been commenced shall be refunded to the applicant at his or her request.

3. All applications for registration of industrial designs which have been withdrawn or are deemed to have been withdrawn before their publication and all applications for registration of marks which have been withdrawn shall be deemed not to have been filed, except where they serve as grounds for claims for priority right.

Article 117. Refusal to grant protection titles

1. The grant of a protection title as the result of an application for registration of an invention, industrial design, mark or geographical indication shall be refused in the following cases:

 (a) There are grounds to affirm that the subject matter stated in the application does not fully satisfy the conditions for protection;

(b) The application satisfies the conditions for the grant of a protection title but does not have the earliest filing date or priority date as in the case stipulated in clause 1 of article 90 of this Law;

 (c) The application falls into a case stipulated in clause 2 of article 90 of this Law but fails to have the consensus of all applicants.

2. The grant of a protection title for an application for registration of a layout design which does not fulfil the formal requirements stipulated in article 109 of this Law shall be refused.

3. Where an application for registration of industrial property falls into the cases stipulated in clauses 1 and 2 of this article, the competent State administrative body for industrial property rights shall carry out the following procedures:

 (a) Notify an intended refusal to grant a protection title, clearly stating the reasons therefor and setting a time-limit for the applicant to make an objection to such intended refusal;

 (b) Notify the refusal to grant a protection title if the applicant makes no objection or makes unjustifiable objection to such intended refusal stipulated in sub-clause (a) of this clause;

 (c) Grant a protection title and record it in the National Register of Industrial Property according to the provisions of article 118 of this Law if the applicant has made a justifiable objection to the intended refusal stipulated in sub-clause (a) of this clause.

4. Where an objection is made to the intended grant of a protection title, the relevant application for registration of industrial property shall be re-examined with regard to the matters about which the objection is made.

Article 118. Grant of protection titles, entry into the register

Where an application for registration of industrial property does not fall into the cases of refusal to grant protection titles stipulated in clauses 1, 2 and 3(b) of article 117 of this Law and the applicant has paid the fee, the State administrative body for industrial property rights shall decide to grant a protection title and enter it in the National Register of Industrial Property.

Article 119. Time-limit for processing applications for registration of industrial property

1. An application for registration of industrial property shall have its form examined within one month from the filing date.

2. An application for registration of industrial property shall be substantively examined within the following time-limits:

 (a) For an invention, twelve (12) months from the date of its publication if a request for substantive examination is filed before the date of publication of the application, or from the date of receipt of a request for substantive examination if such request is filed after the date of publication of the application;

 (b) For an industrial design, a mark or a geographical indication, six (6) months from the date of publication of the application.

3. The time-limit for re-examination of an application for registration of industrial property shall be equal to two-thirds of the time-limit for the initial examination, and may, in complicated cases, be extended but must not exceed the time-limit for the initial examination.

4. The duration for amendment or supplementation of applications shall not be included in the time- limits specified in clauses 1, 2 and 3 of this article.

Section 4. INTERNATIONAL APPLICATIONS AND PROCESSING OF INTERNATIONAL APPLICATIONS

Article 120. International applications and processing of international applications

1. Applications for registration of industrial property filed pursuant to a treaty of which the Socialist Republic of Vietnam is a member shall be collectively referred to as international applications.

2. International applications and processing thereof shall comply with the relevant treaties.

3. The Government shall guide the implementation of provisions in relevant treaties on international applications, and the order and procedure for processing thereof in compliance with the principles stipulated in this Chapter.

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