When referring to industrial property rights in Vietnam, many people often confuse the two main protection mechanisms: applied artworks and industrial designs. So based on the legal regulations on intellectual property, how can we distinguish between applied artworks and industrial designs? Please follow the article of VCD below.
1. Similarities between applied art works and industrial designs
- Both are one of the subjects of intellectual property rights stipulated in the Law on Intellectual Property of Vietnam.
- Both represent the rights of the creative subject or the subject who owns those creations.
- Protect the rights and interests of the subjects with rights and avoid acts of infringement of those protected rights of the subjects.
- Both are aesthetic creative objects.
- Expressed in the form of the external appearance of the work such as shape, lines, color, etc.
2. Differences between applied artworks and industrial designs
Intellectual property rights include three main groups of rights: copyright and rights related to copyright, industrial property rights, and rights to plant varieties. Applied artworks belong to copyright and rights related to copyright, while industrial designs are the subject of industrial property rights. To distinguish between these two subjects, it is necessary to consider the following criteria:
Concept:
- An applied artwork is a work expressed by lines, colors, shapes, and layouts with useful features, can be attached to a useful object, produced by hand or industrially, including Graphic design (expression of logos, product identification, and packaging; expression of characters); fashion design; aesthetic design associated with product styling; Interior design, interior and exterior decoration with aesthetic nature. Applied artworks are expressed in the form of product shapes with an aesthetic nature, which cannot be easily created by people with average knowledge in the relevant field and does not include the external shape of the product that is required to perform the function of the product. (Clause 8, Article 6, Decree 17/2023-ND-CP).
- Industrial design is the external shape of a product expressed by shape, line, color, or a combination of these elements (Clause 13, Article 4, Law on Intellectual Property).
Basis for establishing rights:
- According to the provisions of Clause 1, Article 6 of the current Law on Intellectual Property, Applied artworks are established based on creative products in a certain material form and do not have to be registered. This means that the applied artwork establishes rights under the automatic protection mechanism regardless of the registration procedure, copyright arises automatically and is established from the moment the work is expressed in an objective form that others can recognize. Registration is encouraged but not mandatory to avoid infringements and to have evidence when disputes arise.
- According to the provisions of Point a, Clause 3, Article 6 of the current Law on Intellectual Property, industrial designs are protected through registration procedures at competent state agencies, and this is a mandatory requirement. Industrial designs are only recognized by law when the state agency issues an official protection certificate. Registration of a protection certificate is not only a legal procedure but also a way to publicly notify property ownership, helping the subject to determine rights and avoid being appropriated by others without basis. However, this registration process is often more time-consuming and costly than registering to protect applied artworks.
Protection conditions:
- A work of applied art only needs to be expressed in a certain material form and be original by the author. It does not require novelty, nor does it impose any conditions on the work’s content, quality, or effectiveness.
- On the contrary, industrial designs have higher requirements. According to Article 63 of the Law on Intellectual Property, to be protected, an industrial design must satisfy the following conditions: be novel (compared to designs in the world), be creative (not identical or similar to registered industrial designs), and be capable of industrial application.
Protection period:
- The protection period for a work of applied art is stipulated in Point a, Clause 2, Article 27 of the Law on Intellectual Property. Specifically, the protection period is 75 years from the date the work is first published. For works that have not been published within 25 years from the date of their formation, the protection period will be extended to 100 years from the date of their formation.
- The protection period for industrial designs is stipulated in Clause 4, Article 93 of the Law on Intellectual Property. Accordingly, an industrial design patent is effective from the date of issuance and lasts for 5 years from the date of application. This period can be extended consecutively, each time for 5 years, with a maximum protection period of 15 years.
Meaning of protection:
- Works of applied art are only protected in form, to prevent copying or using the form of the original work. However, the owner cannot prevent others from creating or using identical or similar designs, resulting in a weaker protection mechanism for works of applied art than for industrial designs.
- On the contrary, industrial designs are protected exclusively in terms of content and creative ideas. This allows the owner to have the exclusive right to exploit and use the industrial design, and at the same time have the right to prohibit others from using that design. Therefore, the protection mechanism of industrial designs is stronger than that of applied artworks.
Above is the article “Distinguishing Applied Artworks and Industrial Designs” that VCD sent
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