INDUSTRIAL DESIGN

According to Article 4.13 of the Law on Intellectual Property (IP Law), an industrial design is the external appearance of a product or a part intended for assembly into a complex product, expressed through shapes, lines, colors, or a combination of these elements, and visible during the use of the product or complex product.

According to Point 23.2 of Circular No. 23/2023/TT-BKHCN, the term “use of a product or complex product” means putting such products into operation according to their intended function or utility, excluding activities related to maintenance, servicing, or repair of the product or complex product.

A product is understood as an object, tool, device, or vehicle, produced by industrial or handicraft methods, with clear structure and function.
A part intended for assembly into a complex product refers to a component capable of independent circulation, detachable from the complex product.
A complex product is a product made up of multiple replaceable parts that can be disassembled and reassembled.

According to Clause 2, Article 134 of the Intellectual Property Law, once an industrial design application is filed and granted a protection title (“certificate”), the holder has the right to prohibit others from using the design. Accordingly, the certificate holder has the exclusive right to use the design and profit from that exclusivity. In essence, they have the right to prevent the following acts:

a) Manufacturing products whose external appearance is identical or similar to the protected industrial design;

b) Circulating, advertising, offering for sale, or storing for circulation the products mentioned in point a) above;

c) Importing the products mentioned in point a) above.

The applicant is the entity (organization/individual) that owns the industrial design and therefore has the right to file an application. Once the protection title is granted, the applicant becomes the holder of the certificate.

According to Article 86 of the Intellectual Property Law, the following organizations and individuals have the right to register an industrial design:

a) The author who creates the industrial design using their own effort and expense;

b) Organizations or individuals who invest funds and materials for the author in the form of task assignment or hiring, unless otherwise agreed by the parties.

• In cases where multiple organizations or individuals jointly create or invest in creating the industrial design, all parties shall have the right to register, and such registration can only proceed with the consent of all parties involved.

• A person entitled to registration under this Article may transfer the right to register to another organization or individual through a written contract, inheritance, or succession in accordance with the law — including after the application has been filed.

According to Article 64 of the Intellectual Property Law, the following subjects are not eligible for protection as industrial designs:

1. The external appearance of a product that is required solely by the product’s technical features. These are shapes, configurations, or lines that are determined entirely by the technical function of the product.
   Example: The spiral shape of a drill bit, the flat and circular shape of a CD… are not protected as industrial designs.

2. The appearance of civil or industrial construction works. The external shape of civil or industrial buildings is not protected as an industrial design because it is not feasible to mass-produce identical buildings from both exterior and interior aspects (e.g., equipment, materials). These works have purely aesthetic value and do not meet the requirement of industrial applicability.

3. The appearance of a product that is not visible during the use of the product.
   Example: A motorcycle engine. Since an industrial design must be the visible external appearance of a product and must have aesthetic characteristics, the shape of parts like a motorcycle engine—which are not visible during use—are not eligible for protection.

According to Article 63 of the Intellectual Property Law, an industrial design shall be protected only when it meets all of the following conditions:

• Novelty on a global scale, meaning it has not been publicly disclosed anywhere in the world, in any form such as publication or use.
• Creative nature, meaning the industrial design must not be easily created by a person with average knowledge in the relevant field.
• Industrial applicability, meaning it is capable of being used as a model for mass production of identical products by industrial or handicraft methods.