Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Circular provides for the elaboration on the Law on Intellectual Property and measures to implement Decree No. 65/2023/ND-CP dated August 23, 2023 of the Government of Vietnam on elaboration on several articles and measures to implement the Law on Intellectual Property regarding industrial property, protection of industrial property rights, rights to plant varieties, and state management of intellectual property concerning procedures for establishing industrial property rights and assurance of information on industrial property (hereinafter referred to as “Decree No. 65/2023/ND-CP”).
Article 2. Regulated entities
Organizations and individuals performing procedures for registration, complaint, and complaint settlement in activities concerning the establishment of industrial property rights and assurance of information on industrial property and other relevant organizations and individuals.
Article 3. Interpretation of terms
For the purpose of this Circular, the following terms shall be construed as follows:
1. “Applicant” means an organization or individual applying for the registration of an invention, layout design, industrial design, mark, or geographical indication. When a protection title of an invention, layout design, industrial design, or mark is granted, the applicant is recorded as the protection title holder. When a geographical indication protection title is granted, the applicant is recorded as the person registering such a geographical indication.
2. “Complainant” means an organization or individual complaining about procedures concerning industrial property according to Clause 1 Article 119a of the Law on Intellectual Property.
3. “Person with average knowledge of a certain field” means a person with common practical skills who grasps the general and common knowledge in a certain field.
4. “Paris Convention” is the Paris Convention for the Protection of Industrial Property 1883, amended in 1967 and 1979.
5. “Budapest Treaty” is the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure 1977, amended in 1980.
Article 4. Representatives of applicants and complainants
1. Legal representatives of applicants and complainants according to Article 89 and Article 119a of the Law on Intellectual Property include the following organizations and individuals:
a) Regarding an applicant or complainant that is the organization or individual prescribed in Clause 1 Article 89 and Clause 2 Article 119a of the Law on Intellectual Property:
(i) If the applicant or complainant is an individual: representative under laws or authorization of the applicant or complainant or industrial property representation service provider under the authorization of the applicant or complainant;
(ii) If the applicant or complainant is an organization: representative under laws of the applicant or complainant or person of the organization authorized by the legal representative of the applicant or complainant; industrial property representation service provider under the authorization of the applicant or complainant; head of a representative office or a branch of such office in Vietnam or legal representative of a 100% foreign-invested organization in Vietnam, established under investment laws (if the applicant or complainant is a foreign organization).
If the subject matter of the protection request is a result of a scientific and technological task funded by the state budget assigned before the effective date of the Law on Amendments to the Law on Intellectual Property dated June 16, 2022, or concerns national defense and security: state ownership representative; industrial property representation service provider or organization presiding over the implementation of scientific and technological tasks under the authorization of the state ownership representative.
b) Regarding an application or complainant that is a foreign individual not having permanent residence in Vietnam or a foreign organization or individual not having a production and business facility in Vietnam according to Clause 2 Article 89 and Clause 2 Article 119a of the Law on Intellectual Property: industrial property representation service provider under the authorization of the applicant or the complainant.
2. When performing relevant procedures, the Intellectual Property Office of Vietnam may only transact with the applicant, complainant, or the legal representative of the applicant or complainant according to Clause 1 of this Article. Any transaction with the mentioned subjects shall be collectively called transactions with applicants and complainants.
Article 5. Authorization of representation rights for performance of procedures for establishing industrial property rights
1. Authorization of representation rights, including re-authorization and authorization of representation rights for the performance of procedures for establishing industrial property rights (hereinafter referred to as "authorization"), shall comply with the authorization regulations of the Civil Code, Article 107 of the Law on Intellectual Property, and guidelines prescribed hereof.
The applicant or complainant may change the representative (hereinafter referred to as “authorization substitution”). Authorization substitution terminates the authorization between the applicant or complainant and the current authorized person. Authorization substitution shall be declared in writing by the applicant or complainant (in the authorization document or private document).
The authorized person may re-authorize another person under the Civil Code, providing that the re-authorized organization or individual meets the requirements prescribed in Article 4 of this Circular. Re-authorization may only be carried out after the initial authorization has been recognized by the Intellectual Property Office of Vietnam according to Clause 2 of this Article.
2. The time when an authorization document is recognized in the transaction with the Intellectual Property Office of Vietnam is the date the Intellectual Property Office of Vietnam receives the valid authorization document. Regarding cases of authorization substitution or re-authorization or amendments to information concerning changes to authorization scope, premature termination of authorization, changes to addresses of the authorized party, the time when the authorization document is recognized in the transaction with the Intellectual Property Office of Vietnam is the date the Intellectual Property Office of Vietnam receives corresponding valid documents.
3. If the authorization document is submitted later than the prescribed submission date but before the date the application is appraised to decide its validity and acceptance, the Intellectual Property Office of Vietnam shall transact with the representative of the applicant or the complainant (prescribed in the statement or complaint) to carry out the procedures for appraising the application to conclude whether the application is valid or invalid or accepted or rejected, including conclusions on the legality of the representative status.
4. Any transaction of the authorized party within the authorization scope at any time shall be considered transactions on behalf of the applicant or complainant, which gives rise to the rights and obligations of such applicant or complainant. In case of authorization substitution or re-authorization, the authorization substitution party or the re-authorized party shall continue the representation and handle any arising issue from the previous transaction with the Intellectual Property Office of Vietnam conducted by the previously authorized party.
5. If the authorization document has a scope of many independent procedures and the original copy of the authorization document has been submitted to the Intellectual Property Office of Vietnam, when carrying out further procedures, the authorized party shall submit copies of the authorization document with precise descriptions of regarding the code of the application containing the original copy of such authorization document in the statement or documents serving further procedures.
6. In the case of authorizing an organization or individual banned from engaging in representation or simultaneously authorizing many organizations and/or individuals, among which have an organization and/or individual banned from engaging in representation, the related application shall be considered invalid.
Article 6. Responsibilities of applicants, complainants, and representatives
1. An applicant, complainant, and representative of the applicant or complainant shall ensure the honesty of information and documents provided for the Intellectual Property Office of Vietnam during the process of establishing industrial property rights according to the following regulations:
a) Any transaction document shall be signed by the applicant, complainant, or representative of such applicant or complainant and bear the seal of the related organization (if any). If documents must be notarized or certified as prescribed by laws, comply with such laws.
b) Any Vietnamese translation of documents written in languages other than Vietnamese shall have the declaration of the applicant, complainant, or representative of such applicant or complainant stating that it is translated directly from the original document, except for cases of certified Vietnamese translation;
c) If the representative of the applicant or complainant is an industrial property representation service provider, the person representing such an organization to sign transaction documents shall have a practicing certificate of industrial property representation services.
2. The applicant or complainant shall take responsibility for any consequence and obligation arising from the transaction with the Intellectual Property Office of Vietnam performed by the representative as prescribed by laws.
3. The representative of the applicant or complainant shall take legal liability before the applicant or complainant.
Article 7. Industrial property fees and charges
1. Any applicant and user of industrial property services shall pay the fees and charges prescribed by the Ministry of Finance of Vietnam and other service fees as per regulation.
2. Collection of fees and charges shall be carried out as follows:
a) When receiving or requesting the performance of procedures concerning the collection of fees and charges, the Intellectual Property Office of Vietnam shall request the applicant to pay the fees and charges as per regulation (issue receipts to the applicant);
b) When collecting fees and charges, the Intellectual Property Office of Vietnam shall issue receipts to use as documentation on payment of fees and charges, specifying the collected fees and recording such information to the related application to use for the appraisal of such application;
c) In case the fees and charges are paid through postal services or transferred to the bank account of the Intellectual Property Office of Vietnam, the collection shall be confirmed via copies of receipts in the application.
Tìm kiếm
Thông tư 23/2023/TT-BKHCN hướng dẫn luật sở hữu trí tuệ và nghị định 65/2023/NĐ-CP hướng dẫn luật sở hữu trí tuệ về sở hữu công nghiệp, bảo vệ quyền sở hữu công nghiệp, quyền đối với giống cây trồng và quản lý nhà nước về sở hữu trí tuệ (Bản Word)
Thông tư 23/2023/TT-BKHCN hướng dẫn luật sở hữu trí tuệ và nghị định 65/2023/NĐ-CP hướng dẫn luật sở hữu trí tuệ về sở hữu công nghiệp, bảo vệ quyền sở hữu công nghiệp, quyền đối với giống cây trồng và quản lý nhà nước về sở hữu trí tuệ (Bản Pdf)