- SECTION 1. GENERAL PROVISIONS
- SECTION 2. INDUSTRIAL DESIGN AND ITS LEGAL PROTECTION
- SECTION 3. SUBJECTS OF THE RIGHT IN AN INDUSTRIAL DESIGN
- SECTION 4. APPLICATION FOR THE GRANT OF A PATENT
- SECTION 5. PRIORITY OF AN INDUSTRIAL DESIGN
- SECTION 6. EXAMINATION OF AN APPLICATION
- SECTION 7. EXCLUSIVE RIGHT TO USE AN INDUSTRIAL DESIGN
- SECTION 8. TERMINATION OF A PATENT
- SECTION 9. PROTECTION OF RIGHTS OF PATENT OWNERS AND AUTHORS
- SECTION 10. FINAL PROVISIONS
LAW
OF THE REPUBLIC OF TAJIKISTAN
«ON INDUSTRIAL DESIGNS»
This Law shall govern proprietary and related personal non-proprietary relations arising in connection with the development, legal protection and use of industrial designs on the territory of the Republic of Tajikistan.
SECTION 1.
GENERAL PROVISIONS
Article 1. Some terms used in this Law
Paris Convention - The Paris Convention for the Protection of Industrial Property of March 20, 1883 with subsequent amendments;
ergonomic diagram – a diagram showing the ratio of dimensions of the object of an industrial design in the system «man-machine»;
confection chart - samples of textile and knitted fabric, leather, fittings, etc, being recommended for manufacturing of an article (made out in case of filing an application for an industrial design pertaining to the light industry);
official bulletin - official periodic publication of the Patent Office on questions of protection of industrial property objects;
criteria of patentability - conditions for grant of legal protection of an industrial design defined by this Law
Article 2. Legislation of the Republic of Tajikistan on industrial designs
The legislation of the Republic of Tajikistan on industrial designs shall be based on the Constitution of the Republic of Tajikistan and shall consist of the Civil Code of the Republic of Tajikistan, this Law and other legislative acts of the Republic of Tajikistan, as well as international legislative acts recognized by the Republic of Tajikistan.
Article 3. State body for protection of industrial property objects
The State body for protection of industrial property objects (hereinafter referred to as “Patent office”) shall provide implementation of a consistent state policy on legal protection of industrial property objects, in particular, industrial designs, receive applications for industrial designs, conduct their examination, carry out state registration and official publication of information about industrial property objects, grant patents for industrial designs, and also perform other tasks entrusted to it.
At the Patent Office there shall operate the Appeal Board which is a mandatory primary administrative body for resolution of controversial issues related to the legal protection of industrial property objects. The Appeal Board shall exercise its authority on the basis of the current legislation and the Statute of the Appeal Board approved by the head of the Patent Office.
Article 4. Representation
Natural persons permanently residing outside the Republic of Tajikistan, or foreign legal entities or their representatives shall deal with the Patent Office through patent attorneys, registered with the Patent Office and authorized by a power of attorney.
Any citizen of the Republic of Tajikistan permanently residing in its territory and whose professional level meets the qualifying standards may be a patent attorney.
Qualifying standards to patent attorneys, the procedure of their attestation and registration in the State Register of Patent Attorneys shall be determined by the Patent Office.
SECTION 2.
INDUSTRIAL DESIGN AND ITS LEGAL PROTECTION
Article 5. Conditions for patentability of an industrial design
In accordance with this Law an artistic and design solution of an article determining its outward appearance shall be protected as an industrial design. An article shall mean an item of industrial or handicraft manufacturing.
An industrial design shall be granted legal protection if it is new and original.
An industrial design shall be deemed to be new if the aggregate of its essential features reflected in the representations of the article and enumerated in the list of the essential features of the industrial design, are not known from the data made available to the public in the world before the date of priority of the industrial design.
In assessing the novelty of an industrial design all industrial designs patented in the Republic of Tajikistan shall be taken into consideration, as well as all applications for industrial designs filed by other persons in the Republic of Tajikistan (except for withdrawn) provided their earlier date of priority.
An industrial design shall be deemed to be original if its essential features stipulate a creative character of aesthetic identities of the articles.
The essential features of an industrial design shall include those which determine the aesthetic and (or) ergonomic identities of the outward appearance of the article, its forms and configurations, ornament and combination of colours.
The patentability of an industrial design shall not be prejudiced by the disclosure of information relating to such design by its author, the applicant or by any other party who received such information, directly or indirectly, from them, as a result of which the substance of the industrial design entered the public domain, if the application for such industrial design is filed with the Patent Office within six months of the date of such disclosure. The burden of proof in such case shall rest with the applicant.
The following shall not be recognized as patentable industrial designs:
- solutions that are determined exclusively by the technical function of an article;
- solutions that relate to architectural works (with the exception of minor architectural forms) and industrial, hydrotechnical and other stationary structures;
- solutions that relate to printed matter as such;
- solutions that relate to subject matter of unstable shape such as liquids, gaseous and dry substances and the like;
- articles that are contrary to the public interest, humanitarian principles or morality.
Article 6. Legal protection of an industrial design
The right in an industrial design shall be protected by the State and shall be certified by a patent.
A patent for an industrial design (hereinafter referred to as “patent”) shall certify the priority of an industrial design, the authorship of an industrial design and the exclusive right to use an industrial design.
The scope of legal protection conferred by a patent shall be determined by the totality of its essential features, represented on reproductions of the article (model, drawing). The description of an industrial design shall be used only to interpret the features.
An industrial design patent shall be valid for a term of ten years as of the date on which the appropriate application is filed with the Patent Office. The term of an industrial design patent shall be extended by the Patent Office at its owner’s request, but by not more than for five years.
SECTION 3.
SUBJECTS OF THE RIGHT IN AN INDUSTRIAL DESIGN
Article 7. Author of an industrial design
A natural person whose creative work resulted in an industrial design shall be recognized as the author thereof.
Where an industrial design results from joint creative work of two or more natural persons, those persons shall be recognized as the joint authors thereof. The procedure for exercising author's rights shall be determined by an agreement between them.
Natural persons shall not be recognized as joint authors where they have not made a personal creative contribution to the creation of an industrial design, but have simply given the author (or authors) technical, organizational or material assistance or helped him (or them) in securing legal rights in the industrial design or in using it.
The right of authorship shall be an inalienable personal right and shall be protected perpetually.
Article 8. Applicant
The right to file an application for the grant of a patent for an industrial design shall have:
- the author(s) of an industrial design;
- the employer in the cases provided for in subsection 2 of the Article 9 of this Law;
- a legal successor(s) of the author(s) or of the employer.
Article 9. Patent owner
A patent shall be granted to a person specified in the application for the grant of a patent for an industrial design or to a person obtained the corresponding right as a transfer.
The right to obtain a patent for an industrial design created by an employee in connection with the fulfillment of his employment obligations or a specific task of the employer shall belong to the employer, unless otherwise agreed in the contract between the parties.
In the event that, within four months from the date of the employer's notification by the author of the industrial design, the employer fails to file a patent application for such industrial design with the Patent Office, fails to transfer the right to file an application to a third person, and (or) fails to inform the author of keeping the respective object secret, the right to file an application and obtain a patent shall belong to the author. In such case the employer shall have the right to use the industrial design in his own production operations, paying compensation to the patent owner in an amount to be determined on a contractual basis.
The right to obtain a patent for the industrial design created by the employee with the use of the experience, as well as material, technical and other resources, of
the employer, but other than in the line of employment duty or on the basis of a specific assignment given by the employer, shall belong to the employee, unless otherwise provided for by a contract between them. In such case, the employer shall be entitled to use the industrial design in his own production operations, subject to compensation payable to the patent owner in an amount to be determined on a contractual basis.
Article 10. Right of the author of an industrial designs created in connection with performance of official duties
An employee mentioned in part two of Article 9 of this Law shall be entitled to remuneration from the employer, commensurable with the gain that the employer derived or could have derived from the proper use of the industrial design in the event that:
- the employer obtained a patent;
- the employer assigned the right to obtain a patent to another person;
- the employer decided to keep the industrial design secret;
- the employer failed to obtain a patent on the industrial design application filed by the employer due to reasons within his control;
Remuneration shall be paid in the amount and on conditions determined on the basis of the agreement between the author and the employer.
SECTION 4.
APPLICATION FOR THE GRANT OF A PATENT
Article 11. Filing an application
An application for the grant of a patent (hereinafter referred to as “application”) shall be filed by an applicant with the Patent Office.
An application may be filed through a representative of an applicant or a patent attorney registered with the Patent Office.
The application shall relate to one industrial design and may include variants of that industrial design (requirement of unity of industrial design).
An application shall contain:
- a request for the grant of a patent (in the State language), indicating the title of the industrial design, the author (co-authors) of the industrial design and the party(s) in whose name(s) the patent is sought, as well as their domiciles or locations;
- a set of representations of the article, giving a full and detailed perception of its outward appearance;
- a description of the industrial design including a list of its essential features,
- outline drawing of the article, its ergonomic diagram and confection chart if necessary to bring out the substance of the industrial design.
An application shall be accompanied by a document, certifying payment of a fee for filing an application in the prescribed amount, or a document, certifying the exemption from the fee, or reduction of fees which may be submitted together with the application or within a three month period of the day on which the application is filed with the Patent Office.
Requirements for documents comprising an application shall be established by the Patent Office
Article 12. Date of filing of an application
The date of filing of an application shall be established by the date of receipt at the Patent Office of all the documents of the application listed in the first, second and third paragraphs of Article 11 of this Law.
The decision of establishment of the filing date shall be forwarded to the applicant after receipt by the Patent Office of the document confirming payment of a filing fee in the prescribed amount.
Where there is a breach of the requirements of Art.11 of this Law the application shall be considered not to have been filed.
Article 13. Correction of the documents of the application on the applicant’s initiative
Within three months of the application filing date, an applicant shall have the right to make amendments and clarifications to the application documents without changing the essence of the claimed industrial design.
Corrections and clarifications to an application may also be submitted after the expiry of a three-month period, but not later than a decision on the results of a substantive examination is taken, provided that the corresponding fee has been paid.
Article 14.Withdrawal of the application
An applicant may withdraw his application prior to the registration of the industrial design in the Register of Industrial Designs.
Article 15. Confidentiality in the processing of an application
In the processing of an application, the Patent Office shall not allow access for any person to the application before the publication of the grant of the patent, unless requested or authorized by the applicant. The access shall be construed as access by any means, including personal communication, which allows third parties to receive information on the application.
SECTION 5.
PRIORITY OF AN INDUSTRIAL DESIGN
Article 16.Conditions for establishing priority
The priority of an industrial design shall be established by the date of filing of the application determined in accordance with Article 12 of this Law.
The priority may be determined by the date of receipt of additional materials if they are submitted by the applicant as a separate application, provided that it has
been filed before the expiry of a three month period following the date of receipt by the applicant of a notification from the Patent Office to the effect that the additional materials cannot be taken into consideration since they are recognized as modifying the essence of the claimed industrial design.
Priority may be determined by the date on which an earlier application disclosing the industrial design concerned was filed with the Patent Office by the same applicant if the application requesting such priority is filed within six months of the filing date of the earlier industrial design application. In such case, the earlier application shall be deemed to be withdrawn.
Priority may be determined on the basis of several preceding applications, subject to their compliance with the applicable conditions as set out in the preceding subparagraph of this Article.
Priority may not be determined by the filing date of an application which already requested an earlier priority in accordance with subparagraphs three and four of this Article.
Priority of an industrial design for a divisional application shall be established by the date of filing by the same applicant with the Patent Office of the initial application disclosing said industrial design and if the divisional application has been received before a decision has been taken not to grant a patent, where the possibility for appeal has been exhausted, and if a decision to grant a patent has been received – prior to the date of registration in the State Register.
Where an examination finds the same priority date claimed for several identical industrial designs, a patent shall be granted on that application proved to have been sent to the Patent Office on an earlier date or, should such dates also coincide, on the application having an earlier registration number assigned by the Patent Office, unless otherwise agreed upon between the applicants.
Article 17. Convention priority
Priority may be determined by the filing date of the first application filed in a State party to the Paris Convention for the Protection of Industrial Property(convention priority), provided that the application is filed with the Patent Office within 6 months of that date. Where owing to circumstances beyond the applicant’s control the application claiming convention priority could not be filed within the above time limit, the latter may be extended at the applicant’s request by a period not exceeding two months.
An applicant wishing to make use of the right of convention priority shall indicate this accordingly when filing an application or within two months of the date of receipt of the application at the Patent Office, and shall attach a copy of the first application or send it to the Patent Office not later than three months after the date of filing of the application with the Patent Office.
The priority of an industrial design may be determined by the date of placing the industrial design at an official or officially recognized international exhibition, provided that the application on which the priority was claimed has been filed with the Patent Office within six months following the date of the display of the industrial design at the exhibition.
SECTION 6.
EXAMINATION OF AN APPLICATION
Article 18. Formal examination of an application
Upon the expiry of three months from the date of filing of an application the Patent Office shall carry out its formal examination. At the request in writing of the applicant a formal examination may be started before the expiry of the above mentioned period. In that case, the applicant shall forfeit the right, provided for by Article 13 of this Law, to correct and clarify the documents of the application at his own initiative without payment of a fee.
In the course of a formal examination of an application it shall be verified whether all requisite documents are included and meet the requirements in accordance with Articles 11 of this Law and the question whether the claimed artistic and design solution relates to industrial designs to which legal protection is granted in accordance with Article 5 of this Law shall be considered.
If, in accordance with Article 13 of this Law, the applicant submits supplementary materials for the application, the examination shall verify whether they modify the subject matter of the claimed industrial design.
Supplementary materials shall be held to modify the substance of the industrial design applied for if they make for the inclusion of such features as were absent from the original materials of the application. Any supplementary materials modifying the substance of the industrial design applied for shall be ignored for the purposes of examining the application, but may be filed by the applicant as a separate application.
If the application for an industrial design is made in accordance with all established requirements the applicant shall be notified of a positive decision of the formal examination.
Where a filed application is found to be inconsistent with any requirements applicable to its documents, the applicant shall be given a notice requesting that amended or missing documents be submitted within three months of the receipt date of such notice. If the applicant fails to submit the requested documents within such time period or to apply for its extension, the application shall be deemed to be withdrawn.