Circular No. 01/2007/TT-BKHCN dated February 14, 2007 of the Ministry of Science and Technology guiding the implementation of the Government's Decree no. 103/2006/ ND-CP dated September 22, 2006, detailing and guiding the implementation of a number of articles of the Iaw on intellectual property regarding industrial property
THE MINISTRY OF SCIENCE AND TECHNOLOGY
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
Hanoi, February 14, 2007
GUIDING THE IMPLEMENTATION OF THE GOVERNMENTS DECREE No. 103/2006/ ND-CP OF SEPTEMBER 22, 2006, DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON INTELLECTUAL PROPERTY REGARDING INDUSTRIAL PROPERTY
Pursuant to the November 29, 2005 Law on Intellectual Property;
Pursuant to the Government Decree No. 103/ 2006/ND-CF of September 22, 2006, detailing and guiding the implementation of a number of articles of the Law on Intellectual Property regarding industrial property;
Pursuant to the Government y Decree No. 54/ 2003/ND-CF of May 16, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Science and Technology, and Decree No. 28/2004/ND-CF of January 16, 2004, amending and supplementing a number of articles of Decree No. 5 4/2003/ND- CP;
The Ministry of Science and Technology guides the implementation of the Government Decree No. 103/2006/ND-CF of September 22, 2006, as follows:
>> See also: Industrial Property Representation service of Minh Khue Law Company
PROCEDURES FOR ESTABLISHMENT OF INDUSTRIAL PROPERTY RIGHTS
Section 1. GENERAL PROVISIONS ON PROCEDURES FOR ESTABLISHMENT OF INDUSTRIAL PROPER TYRJGHTS
1. Grounds for establishment of industrial property rights
1.1 Industrial property rights arise/are established on the grounds specified in Clause 3, Article 6 of the November 29, 2005 Law on Intellectual Property (hereinafter referred to as the Intellectual Property Law), Clauses 1, 2, 3 and 4, Article 6 of the Governments Decree No. 103/ 2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the Intellectual Property Law regarding industrial property (hereinafter referred to as the Decree on industrial property) and specific provisions of this Point.
1.2 Industrial property rights to inventions, layout designs of semi-conductor integrated circuits (hereinafter referred to as layout designs), industrial designs and marks shall be established under decisions of the National Office of intellectual Property (NOIP) on the grant of protection titles to persons that register those objects. Persons who are granted protection titles by the NOIP are owners and enjoy the rights to industrial property objects within the protection coverage stated in and the validity duration of protection titles. Upon occurrence of a dispute, the owner of an industrial property object may use the protection title as evidence to prove his! her/its rights without having to invoke any other proofs
1.3 Industrial property rights to geographic indications shall be established under decisioi of the NOIP on the grant of certificates registered geographical indications 1 organizations managing those geographic indications.
1.4 Industrial property rights to mart internationally registered under the Madri Agreement and the Madrid Protocol (hereinaft referred to as internationally registered mark shall be established under decisions on acceptanc for protection or certificates of protection i Vietnam of internationally registered mark granted by the NOIP upon the request of mar proprietors. These decisions and certificates ar as valid as protection titles granted to person registering marks in Vietnam.
1.5 Industrial property rights to well-know: marks shall be established on the basis of thei actual public use that has made them well knowr and for those marks the registration with the NOl] is not required. While exercising the rights to an upon the settlement of a dispute over a well known mark, its proprietor shall evidence his/hei its rights with appropriate proofs specified ii Article 75 of the Intellectual Property Law.
1.6 Industrial property rights to trade name shall be established on the basis of the lawful us of those trade names, and for those trade name the procedures for registration with the NOIP i not required. While exercising the rights to an upon the settlement of a dispute over, a trad name, the entity owning that trade name sha] evidence his/her/its rights with proofs indicatin the period of time, territory and field in whic the trade name has been used by that entity.
1.7 Industrial property rights to busines secrets shall be established on the basis a financial investment and intellectual labor or the results of other lawful activities aimed to find, create or acquire information constituting business secrets and keep confidential such information, and for those business secrets the registration with the NOIP is not required. While exercising the rights to and upon the settlement of a dispute over rights to a business secret, the entity owning that business secret shall evidence his/her/its rights with proofs indicating activities in which information constituting the business secret has been created, found or acquired as well as the measure to keep confidential such information.
>> See also: Legal service for registration of designs of semi-conducting closed circuits
1.8 The right to suppression of unfair competition shall be established on the actual situation of competitive practices, and for that right the registration with the NOIP is not required. While exercising the right to suppression of unfair competition, right holders shall evidence their right with proofs indicating business entities, fields, territories and periods of time related to competitive practices.
2. Owners of industrial property registration applications
2.1 Owners of industrial property registration applications (hereinafter referred to as application owners) are organizations or individuals that file applications for registration of inventions, layout designs, industrial designs, marks or geographical indications. As soon as invention, layout design, industrial design or mark protection titles are granted, application owners are recognized as protection title holders. As soon as geographical indication protection titles are granted, application owners are recognized as geographical indication registrants.
2.2 Application owners must satisfy the conditions for the right of industrial property registration provided for in Articles 86, 87 and 88 of the Intellectual Property Law and Articles 7, 8 and 9 of the Decree on industrial property. If those conditions are not satisfied, the industrial property registration shall be considered invalid.
3. Representatives of application owners
3.1 Application owners may themselves carry out or authorize their lawful representatives in Vietnam to carry out the procedures for industrial property registration with the NOIP according to the provisions of this Point and Point 4 of this Circular.
3.2 The following organizations or individuals may act as representatives of application owners:
a) For organizations or individuals defined in Clause 1, Article 89 of the Intellectual Property Law:
(i) If application owners are individuals: Their representatives at law or mandated representatives, or industrial property representation service organizations under their mandate;
(ii) If application owners are organizations: Their representatives at law or staffs of organizations mandated by their representatives at law; industrial property representation service organizations (under their mandate); heads of their Vietnam-based representative offices or branches (for foreign organizations).
>> See also: Consultancy in the field of industrial property
b) For organizations or individuals defined in Clause 2, Article 89 of the Intellectual Property Law: industrial property representation service organizations (mandated by application owners).
3.3 When carrying out the procedures for industrial property registration, the NOIP may only contact application owners or their lawful representatives. Organizations or individuals that do not fall into the cases specified at Point 3.2 of this Circular shall be regarded as unlawful representatives of application owners.
4. Mandate of representatives to carry out industrial property registration procedures
4.1 The mandate of representatives and the carrying out by mandated representatives of procedures for industrial property registration (hereinafter referred to as mandate) must comply with the provisions on mandate in Part III of the Civil Code and the provisions of this Circular.
4.2 The mandate shall be established in writing (power of attorney) with the following principal contents:
a) Names (full names) and full addresses of the mandator and the mandated party;
b) Name (full name) and full address of the party undertaking to act as a surrogate mandated or sub-mandated party (if any);
c) Scope of mandate and mandated work volume;
d) Mandate duration (a power of attorney with an unspecified validity duration will cease to be valid only when the mandator declares the termination of the mandate);
e) Date of signing of the power of attorney;
g) Signature(s) (with full names, titles and seals, if any) of the lawful representative of the mandator (and of the party undertaking to act as a surrogate mandated or sub-mandated party, if any).
4.3 The date when a power of attorney takes legal effect in transactions with the NOIP is determined to be:
a) The date the NOIP receives a valid power of attorney;
b) The date the NOIP approves the valid surrogate mandate or sub-mandate;
c) The date the NOIP receives a notice on change of the mandate scope, ahead-of-time termination of mandate, change of the address of the mandated party.
4.4 In case of surrogate mandate or sub- mandate, a power of attorney is considered valid when the party acting as a surrogate mandated or sub-mandated party commits to bear responsibility for all matters arising from prior transactions conducted by the mandator with the NOIP.
4.5 If the scope of mandate stated in a power of attorney covers many independent procedures and the original power of attorney has been submitted to the NOIP, the mandated party, when carrying out subseqiient procedures, shall submit copies of the power of attorney and give an accurate indication of the serial number of the application containing that power of attorney.
5. Responsibilities of application owners and their representatives
5.1 Application owners and their representatives shall ensure the truthfiulness of information and documents supplied to the NOIP in the course of industrial property registration according to the following regulations:
a) All transaction documents must be certified with the signatures of application owners or their representatives, appended with certification seals of organizations (if any). If certification of a notary public or another competent agency is required, such certification must be obtained;
b) All Vietnamese translations of foreignlanguage documents must be guaranteed by application owners or their representatives to be verbatim translations of the original documents.
5.2 Application owners are liable for all consequences and obligations arising from transactions conducted by their representatives with the NOIP.
5.3 Representatives of application owners are accountable to application owners for all consequences of the declaration or supply of untruthful information in transactions with the NOIP and pay compensations for any damage caused.
5.4 Application owners and their representatives are below collectively referred to as applicants, unless otherwise specifically provided for.
6. Handling of opinions of the third party before issuing decisions on the grant of protection titles
6.1 From the date an industrial property registration application is published in the Industrial Property Official Gazette to the date prior to the issuance of a decision on the grant of a protection title, any organization or individual may send to the NOIP its/his/her written opinions on the registration right, the right of priority, protection conditions and other issues related to the industrial property registration application according to the provisions of Article 112 of the Intellectual Property Law. Written opinions of the third party shall be regarded as an information source for reference in the course of processing an industrial property registration application.
6.2 Within one month after receiving written opinions of the third party, the NOIP shall notify such opinions to the applicant and set a time limit of one month from the date of notification for the applicant to give feedback in writing. After receiving the applicants feedback, when necessary, the NOIP shall notify the feedback to the third party and set a time limit of one month from the date of notification for the third party to respond in writing to that feedback. The NOIP shall process opinions of applicants and third parties on the basis of proofs and arguments furnished by the parties and documents included in the applications.
6.3 When considering opinions of the third party groundless, the NOIP is not required to notify those opinions to the applicant but shall notify the third party of its refusal to consider the opinions, clearly stating the reason for refusal.
6.4 If opinions of the third party are related to the registration right, when finding it impossible to determine whether or not such opinions are grounded, the NOIP shall notify such to the third party so that the latter can file a petition with a court for handling. Within one month after the NOIP issues the notice, if the third party fails to notify the NOIP of the filing of a petition with a court for handling, the NOIP shall regard the third party as having withdrawn its opinions. If the NOIP is notified by the third party within the above time limit, it shall suspend the application processing until the results of dispute settlement by the court are obtained. After the results of dispute settlement by the court are obtained, the application processing shall be resumed in accordance with those results.
6.5 When necessary and upon the request of both parties, the NOIP shall organize face-to-face meetings between the third party and the applicant to further clarify the matter challenged by an opposition.
6.6 The time limit for the applicant to respond to the opposition of the third party shall not be counted into the time limit for the NOIP to carry out relevant procedures according to regulations.
7. General requirements for industrial property registration applications
7.1 Minimum documents
The NOIP shall only receive an industrial property registration application (hereinafter referred to as the application) which, upon its filing, contains at least the documents listed at Points a, b and e, Clause 1, Article 100, and Clause 1, Article 108 of the Intellectual Property Law and specified as follows:
a) For an application for registration of an invention, layout design, industrial design, mark or geographical indication, mandatory documents include:
(i) Declaration for registration;
(ii) Documents, specimen and information disclosing the industrial property object sought to be registered;
Particularly for an invention registration application, a description of the invention; for an industrial design registration application, a set of photos, a set of drawings and a description of the industrial design; for a mark registration application, the mark specimen and list of goods and services bearing the mark; for a geographical indication, a description of particular characteristics and quality of products bearing the geographical indication and a map of the geographical area subject to the geographical indication;
(iii) Fee and charge receipts.
In case of absence of any of the above documents, the NOIP may refuse to accept the application.
b) For an application for registration of a collective mark or certification mark, in addition to the documents specified at Point 7.1 .a above, the application must also contain the following documents:
(i) Rules on the use of the collective mark! certification mark;
(ii) Explanation of particular characteristics and quality of the product bearing the mark (if the to-be-registered mark is a collective mark used for a product with unique characteristics or a mark for certification of the quality of a product or a mark for certification of geographical origin);
(iii) Map showing the indicated territory (if the to-be-registered mark is a mark for certification of the geographical origin of a product).
7.2 Requirements for applications
a) Applications must meet the general requirements specified in Articles 100 and 101 of the Intellectual Property Law and specific requirements for each type of industrial property object specified in Articles 102, 103, 104, 105 and 106 of the Intellectual Property Law and guided in detail at Points 23, 28, 33, 37 and 43 of this Circular.
b) To ensure the technical requirements in the course of processing, an application must also satisfy the following formality requirements:
(i) Each application can request grant of one protection title which is of a type suitable to the industrial property object stated in the application;
(ii) All documents of the application must be in Vietnamese, except for documents that are allowed to made in another language according to the provisions of Points 7.3 and 7.4 of this Circular;
(iii) All documents of the application must be presented in the portrait format (particularly, drawings, figures, charts and tables may be presented landscape) onA4 paper sheets (210mm x 297 mm), of which the top, bottom, left and right margins are all 20 mm, except for accompanied docuiments originally not intended to be included in the application;
(iv) For documents that must be made according to pre-designed forms, those forms shall be used with all necessary information filled in appropriate sections;
(v) A document consisting of many pages must have page numbers in Arabic;
(vi) All documents must be typewritten or printed with a non-fading ink, clear and clean, and free from erasures and modifications; if detecting any negligible spelling error in a document submitted to the NOIP, the applicant may correct such error but shall append his/her signature of certification (and a seal, if any) at the corrected words;
(vii) Terms used in the application must be common ones (other than dialects, rare words, coined words). Symbols, units of measurement, electronic fonts and spelling rules used in the application must conform to Vietnam standards;
(viii) The application may be accompanied with carriers of electronic data of part or the entire content of its documents.
c) The application must fully satisfy the requirements on quantities of documents, specimens, drawings and photos, and specific requirements for each type of application specified in this Circular.
d) The declaration form and other documents of the application must contain fully mandatory and consistent information; the Vietnamese translations of the applications documents must be true to the original documents; the power of attorney must indicate the contents of work within the scope of mandate.
e) The object(s) stated in the application must be accurately grouped and classified according to regulations
g) Documents that require certification of competent agencies (the agency that has first received the application, the notary public, Peoples Committee, etc.) must be affixed with those agencies seals of certification.
7.3 The following documents may be made in languages other than Vietnamese but must be translated into Vietnamese:
a) Power of attorney;
b) Documents certifying the right of registration in case the applicant enjoys another persons right of registration (inheritance certificate; certificate of or agreement on transfer of the right to file an application, covering also the transfer of a filed application; job assignment contract or labor contract, etc.);
c) Documents evidencing the grounds for enjoying the right of priority (certification by the application-receiving agency of copies of the initial application(s); the list of goods and services in the initial mark registration application; the paper on transfer of the right of priority in case the applicant enjoys that right from another person).
7.4 The following documents may be made in languages other than Vietnamese but must be translated into Vietnamese upon the request of the NOIP:
a) Copies of the initial application to evidence the ground for enjoying the right of priority;
b) Other documents annexed to the application.
8. Industrial property registration fees and charges
8.1 Applicants shall pay fees and charges according to the Ministry of Finances regulations.
8.2 Collection of fees and charges
a) When receiving an application or a request for any other procedures to be carried out, the NOIP shall ask the applicant to pay prescribed fees and charges and check fee and charge receipts included in the application.
b) If fees and charges are not yet fully paid according to regulations, the NOIP shall issue a fee and charge collection notice to the applicant.
After the applicant has fully paid fees and charges, the NOIP shall issue two originals of each fee or charge receipt clearly indicating the fee or charge amount paid, of which one shall be enclosed with the application as an evidence of payment of fees and charges.
8.3 Refund of paid fee and charge amounts
a) Paid fee and charge amounts shall be partially or wholly refunded upon the request of the applicant in the following cases:
(i) Fees and charges have been overpaid;
(ii) Jobs for which fees and charges have been paid are not performed due to non-occurrence of circumstances requiring these jobs.
b) In case of acceptance of a request for fee and charge refund, the NOIP shall issue a fee and charge refund notice to the applicant, clearly stating the refunded amount and the mode of refund.
c) In case of rejection of a request for fee and charge refund, the NOIP shall notify such to the applicant, clearly stating the reason for rejection.
9. Time limits
9.1 Time limits specified in the Intellectual Property Law, the Decree. on industrial property and this Circular shall be counted according to the provisions of Chapter VIII, Part I of the Civil Code.
9.2 The time limit for applicants and concerned parties to submit, modify or add documents or give their opinions may be prolonged once for a period of time equal to the set time limit, if the applicant submits a written request for prolongation before the date of expiration of the set time limit and pay a prescribed fee.
9.3 Applicants may request in writing the NOIP to carry out the procedures before the set deadline and shall pay a prescribed fee. In case the NOIP rejects such a request, it shall notify the applicant of the rejection, clearly stating the reason.
10. Forms of documents and protection titles
10.1 Forms of application documents are provided in the Appendices to this Circular (not printed herein). Applicants shall use these forms to compile documents of their applications for industrial property registration.
10.2 Forms of protection titles are provided in the Appendices to this Circular (not printed herein). The NOIP shall archive these forms of protection titles in order to check the legality of protection titles in use. Any change of a protection title form may only be made under a decision of the Minister of Science and Technology.
11. General procedures
All types of industrial property registration application shall be processed by the NOIP in the following order: receipt of applications; formality examination of applications; publication of valid applications; substantive (ex-officio) examination of applications (except for layout design registration applications, which are not subject to substantive examination); grant of or refusal to grant protection titles; official registration and publication of decisions on the grant of protection titles.
12. Filing and receipt of applications
12.1 Applications may be filed with the NOIP or at other application receipt places arranged by the NOIP. Applications may also be sent by post to the above places of application receipt.
12.2 Upon receipt of an application, the NOIP shall check the applications documents and compare them with those listed in the declaration before deciding whether or not to receive the application:
a) If the application contains all the minimum documents specified at Point 7.1 of this Circular, the application-receiving officer shall accept the application, affix a seal to certify the filing date and the serial number of the application in the declaration form;
b) If the application lacks any of the minimum documents specified at Point 7.1 of this Circular, the application-receiving officer shall reject the application or send a notice of the NOIPs rejection of the application to the applicant (if the application is sent by post). For the rejected application, the NOIP is not required to return the applications documents to the applicant, but shall refund the paid fee and charge amounts according to the fee and charge refund procedures specified at Point 8 of this Circular;
c) In case of acceptance of the application, the NOIP shall hand over (send) to the applicant one declaration form bearing the seal of certification of the filing date, the serial number of the application and the result of the checking of the list of application documents, and the full name and signature of the application-receiving officer. This handed over (sent) declaration form is valid as an application receipt.
13. Formality examination of applications
13.1 Purposes and contents of formality examination of applications
Formality examination of applications means examination of observance of regulations on formalities applicable to applications, serving as a basis for concluding whether applications are valid or invalid.
Valid applications shall be further examined. Invalid applications shall be rejected (shall not be further examined).
13.2 Valid applications
An application is considered valid if it complies with the provisions of Point 7 of this Circular and does not fall into one of the following cases:
a)The application is made in a language other than Vietnamese, unless otherwise specified at Points 7.3 and 7.4 of this Circular;
b) The declaration form contains insufficient information on the author (for invention, industrial design or layout design registration applications), on the applicant or his/her representative, the signature and/or seal of the applicant or his/her representative; the mark registration application lacks the list of goods and services; the geographical indication registration application fails to list products bearing the geographical indication;
c) There is a ground to confirm that the applicant does not have the right of registration;
d) The application is filed in contravention of the provisions of Article 89 of the Intellectual Property Law;
eThe application contains errors specified at Point 13.3 of this Circular, which affect its validity, and the applicant, after receiving a request of the NOIP, fails to amend or unsatisfactorily amends the application;
g) There is a ground to immediately confirm that the object stated in the application is apparently ineligible for protection by the State according to the provisions of Articles 59, 64, 69, 73 and 80 of the Intellectual Property Law.
For an application that involves many objects and falls into the case specified at Points 13.2.a, 13.3.b and 13.3.c of this Circular, if it contains errors related to only one or some of the objects in that application, the application shall be considered partially invalid (corresponding to erroneous object(s)). For other objects, the application is still considered valid.
13.3 Correction of errors in applications at the stage of formality examination
If an application still contains the following errors, the NOIP shall notify them to the applicant for correction within one month from the date of notification:
a) The application fails to satisfy the formality requirements specified at Point 7.2 of this Circular (containing an insufficient number of copies of any of mandatory documents; failing to satisfy the uniformity requirement; failing to satisfy the requirements on the presentation format; a mark registration application fails to clearly state the mark sought to be registered, lacks the mark description, inaccurately classifies goods and services, lacks translations of documents enjoying priority, when necessary; or information on the applicant in different documents is inconsistent or erased or not properly certified);
b) The application filing fee and publication fee have not yet been fully paid;
c) There is no power of attorney or the power of attorney is invalid (for applications filed through representatives).
13.4 Determination of filing date
The filing date is determined as follows:
a) The filing date is the date an application is accepted by the NOIP indicated in the seal of receipt affixed on the declaration form according to the provisions of Point 12.2.a of this Circular;
b) For an international application that designates or/and elects Vietnam, the filing date is the international filing date.
13.5 Determination of date of priority
a) If an application does not contain a claim for priority or contains a claim for priority but that claim is not accepted by the NOIP, the application shall be regarded as having no date of priority.
b) If an application contains a claim for priority, the date(s) of priority is (are) the date(s) stated in that claim and accepted by the NOIP.
c) The determination of the date of priority according to the claim for priority shall be based on the first application(s) filed in Vietnam in accordance with the principles specified in Article 91 of the Intellectual Property Law and relevant provisions of Points b, c and e, Clause 1, Article 10 of the Decree on industrial property.
13.6 Notification of results of formality examination and acceptance of valid applications
a) For an application falling into one of the cases specified at Point 13.2 of this Circular or containing errors specified at Point 13.3 of this Circular, the NOIP shall send to the applicant a notice on its intended rejection of the application. Such a notice must clearly state the name and address of the applicant; the name of the industrial property representation service organization (if the application is filed through that organization); the name of the object stated in the application; the filing date and the serial number of the application; errors and reasons for which the application is rejected; and set a time limit of one month from the date of notification for the applicant to give opinions or correct errors.
b) For a valid application, the NOIP shall send to the applicant a notice on acceptance of valid application, clearly stating the name and address of the applicant, the name of the mandated representative (if any) and information on the object stated in the application, the filing date and the date of priority (in case a claim for priority is not accepted, the reason for non-acceptance must be clearly stated).
13.7 Rejection of applications
If the applicant to whom the NOIP has sent a notice on its intended rejection of the application according to the provisions of Point 13.6.a of this Circular fails to correct errors or unsatisfactorily corrects errors or makes no opposition or makes unreasonable opposition to the intended rejection within the set time limit, the NOIP shall send to the applicant a notice on its rejection of the application and, upon the applicants request, refund the paid fee and charge amounts for jobs to be done after the formality examination.
13.8 Time limit for formality examination of applications
a) The time limit for formality examination of an application is one month from the filing date.
b) In the course of formality examination, if the applicant corrects or supplements documents on his/her own initiative or upon the request of the NOIP, the time limit for formality examination may be prolonged for a period of time during which documents are corrected or supplemented.
c) Before the expiration of the time limit specified at Point 13.8.a above, the NOIP shall complete the formality examination of applications and send notices on examination results to applicants according to the provisions of Point 13.6 of this Circular.
14. Publication of valid applications
14.1 All applications accepted as valid shall be published by the NOIP in the Industrial Property Official Gazette. Applicants shall pay a fee for such publication.
14.2 Time limit for publication of applications
a) Publication of invention registration applications:
iAn invention registration application shall be published in the nineteenth month from the date of priority or the filing date in case the application has no date of priority or within two months after it is accepted as a valid application, whichever is later;
(ii) An invention registration application under the Patent Cooperation Treaty (hereinafter abbreviated to PCT) shall be published within two months from the date it is accepted as a valid application and enters the national phase;
(iii) An invention registration application containing a request for earlier publication shall be published within two months from the date the NOIP receives that request or the date it is accepted as a valid application, whichever is later.
b) Publication of other applications: Layout design, industrial design, mark or geographical indication registration applications shall be published within two months from the date they are accepted as valid applications.
14.3 Contents of publication of applications
Information related to valid applications, including divisional applications published in the Industrial Property Official Gazette, includes information related to valid applications formality as stated in notices on acceptance of valid applications, information related to valid applications (transfer of applications, division of applications, serial numbers of parent applications, etc.); invention abstracts accompanied with drawings (if any); sets of photos or drawings of industrial designs; specimens of marks and enclosed lists of goods and services; summaries of particular characteristics and names of products bearing geographical indications.
14.4 Access to information on published valid applications
Everyone may access detailed information on the nature of objects stated in the applications published in the Industrial Property Official Gazette or request the NOIP to supply such information and is liable to pay an information supply fee according to regulations.
15. Substantive examination of applications
15.1 Purpose and coverage of substantive examination
a) The purpose of substantive examination of applications is to assess the protectability of objects stated in those applications under the protection conditions and corresponding protection coverage (volume).
b) The procedures for substantive examination are not applicable to layout design registration applications.
15.2 Use of information search results
a) in the course of substantive examination of invention/industrial design registration applications with claims for priority, the NOIP may use the results of information search and examination of those applications filed overseas.
b) Applicants may supply (on their own initiative or upon the NOIPs request) the following documents for use in service of substantive examination of their applications:
(i) For an invention/industrial design registration application: Results of information search or examination of the application filed overseas for the object stated in the application; copies of the protection title granted on the basis of a similar application filed overseas; documents on technical conditions of the object stated in the invention registration application supplied by a competent foreign authority to the applicant and other documents;
(ii) For a mark or geographical indication registration application: Documents proving that the mark or geographical indication has been protected in a foreign country, including documents explaining the use of the mark or geographical indication and other documents.
15.3 Correction of errors, explanation of the contents of applications, supply of information.
a) The NOIP may request applicants to explain the contents of their applications, supply information pertaining to the nature of objects stated in the applications, if full disclosure of the nature of objects is necessary for substantive examination of the applications.
b) All amendments or supplements to erroneous documents of applications shall be made by applicants themselves. The NOIP may only make those amendments or supplements when applicants so request in writing. Applicants shall pay a prescribed fee for such amendment and supplementation. Written requests for amendment or supplementation of applications shall be enclosed with relevant documents of applications and regarded as official documents of applications.
15.4 Ahead-of-time termination of substantive examination of applications
a) In the following cases, the substantive examination of an application shall terminate ahead of time:
(i) The application fails to demonstrate the nature of the object: Documents related to the nature of the object, such as the description, the list of goods and services, etc., contain insufficient information, thus making it impossible to identify the nature of the object, or information on the nature of the object stated in an invention registration application is unclear or too concise or general that it is impossible to identify the object sought to be protected;
(ii) The object is incompatible with the type of protection title applied for or the object is ineligible for the States protection according to regulations;
(iii) There is a ground to confirm that the object fails to satisfy one or several protection conditions, and it is therefore unnecessary to assess other conditions before conclusions can be made that the object fails to satisfy the protection conditions;
(ivThe applicant fails to fulfill the request for correction of errors or explanation of contents of the application or fails to supply necessary information upon the NOIP s request specified at Point 15.3 of this Circular;
(v) The applicant requests termination of the substantive examination of the application or declares to withdraw or cancel the application.
b) Except for the cases specified at Point 15.4.a
(vabove, the NOIP shall send to the applicant a notice on ahead-of-time termination of substantive examination, clearly stating the reason therefor and setting a time limit of two months from the date of notice for the applicant to give opinions.
Click Download to see full text