Sophisticated Copycat Products in Vietnam: Should Copyright or Industrial Design Rights Be Relied Upon for Enforcement?

In disputes concerning packaging, fashion design, household goods, furniture, etc., the issue is no longer about “crude copies,” but about sophisticated imitations: competitors maintain the “main visual impression,” but adjust a few minor details to create a “sufficiently different” feel when a complaint is filed. This gray area puts many intellectual property rights holders and corporate legal teams in a difficult position: should they pursue enforcement based on copyright or industrial design?

That choice is not just a matter of the “name” of the right, but also a matter of the burden of proof and the speed of intervention. With copyright, plaintiffs usually have to go through two hurdles: access and substantial similarity, with the focus on proving the copying of the “form of expression,” not the idea. Conversely, with industrial designs, the analysis shifts to the question of whether the alleged subject matter is not significantly different from the protected design, and the subjective element of “copying” is no longer a decisive factor. Therefore, choosing the wrong legal basis can undermine the legal theory of the case, prolong proceedings, and weaken the claimant’s negotiating position.

In this article, KENFOX IP & Law Office does not seek to argue that one form of protection is inherently stronger than the other. Instead, it focuses on three key issues. First, it examines the legal nature and scope of protection afforded by copyright in works of applied art (WOAA) and industrial design rights. Second, it systematises the legal criteria for identifying infringement and for determining the appropriate legal basis for enforcement in cases involving sophisticated imitation. Third, it proposes a practical enforcement framework covering evidence collection, expert assessment, and the selection of administrative or civil remedies, with the objective of increasing the likelihood of successful enforcement, shortening the time required to resolve disputes, and optimising overall enforcement costs.

1. Legal Basis and Nature of Protection: The “Automatic” Nature of Copyright vs. the “Registration-Based” Nature of Industrial Design Rights

With respect to the acquisition of rights, copyright arises automatically from the moment a work is created and fixed in a tangible medium of expression, regardless of whether it has been published or unpublished, or registered or unregistered. From a litigation perspective, the point to emphasize is not “registration or not,” but the burden of proof: The law confirms that submitting an application for a Certificate of Copyright Registration is not a mandatory procedure. However, where a Certificate has been obtained, the holder is presumed to own the copyright and is not required to prove ownership in the event of a dispute, unless evidence to the contrary is produced. Therefore, in cases of “sophisticated imitation” (modified copying), copyright registration does not create new rights, but can strengthen the claimant’s litigation position by shortening the debate on the subject of the right and the time of its emergence.

Conversely, industrial design rights belong to the group of industrial property rights established on the basis of a decision to grant a protection certificate through registration procedures (or international registration recognition). Therefore, if a business relies solely on “copyright” without establishing “exclusive rights” for its industrial design in a timely manner, the risk lies not in “losing copyright,” but in losing the exclusive advantage based on the certificate and/or creating conditions for competitors to gain procedural advantages (having a certificate to enforce first, forcing the actual subject to switch to a defensive stance by objecting/canceling). This risk is particularly significant because industrial design protection is subject to the strict requirement of novelty. In assessing novelty, the protected design will be examined against any prior public disclosure occurring before the filing date of the application. Although Vietnamese law provides a limited six-month grace period for certain specified disclosures, such exceptions are narrowly defined and should not be regarded as a substitute for timely filing.

2. Subject Matter of Protection: Works of Applied Art vs. the External Appearance of a Product—Similar in Appearance, Distinct in Legal Logic

From the perspective of subject matter protection, works of applied art (WOAA) are subject to copyright: the focus is on the aesthetic expression (lines, colors, shapes, composition, etc.) associated with a useful object; and the law excludes the mandatory design element due to its function. Meanwhile, industrial designs are defined as the external appearance of a product (or parts to assemble into a complex product), expressed by shapes/lines/colors or combinations thereof, and visible during the process of exploiting its use.

The key point regarding the scope of protection (for litigation strategy) is: Copyright infringement analysis centres on whether protected expression has been copied; while industrial design protects the external appearance as established by a registered industrial design, and in enforcement, the focus is usually on comparing the overall appearance and essential design features according to the standard of “significantly different/not significantly different,” less dependent on whether the other party has “independently created” or not. Therefore, in sophisticated imitation cases, industrial design often allows the owner to directly attack the “overall shape” of the product, while copyright has an advantage when you can prove that the competitor has “involved” the specific expression (pattern, layout, artistic design) and modified it to a level that is difficult for an ordinary observer to perceive.

Although seemingly overlapping in aesthetic appearance, applied art and industrial design differ in the nature of protection. Copyright protects the “form of expression” of the work – that is, the specific artistic creation (lines, patterns, composition, colors, etc.) that has been established on the product. Copyright does not protect the ideas or technical content behind a work, nor does it encompass the functional aspects of the object. Conversely, industrial design rights aim to protect the overall appearance of a product, including its shape, lines, contours, colours, or a combination of these elements. In other words, industrial design rights protect the visual appearance embodied in the registered industrial design, rather than merely the artistic expression fixed in the work.

For example, copyright protects the artistic decoration appearing on the surface of a vase, such as its patterns, colours, or artistic composition. Industrial design rights, by contrast, protect the overall appearance of the vase itself, including its shape, contours, proportions, and ornamental features, provided that the design satisfies the statutory requirements for protection. Accordingly, although both rights may relate to the same product, they protect different subject matter and operate under different legal principles. Consequently, the protection periods also differ: Designs and Crafts are protected for 75 years (or up to 100 years if not published within the first 25 years), while Industrial Designs are protected for a maximum of 15 years. After the Industrial Design certificate expires, the design falls into the public domain, but if it is also a sufficiently original design or craft, the copyright may still remain valid (a rare but possible overlap).

3. Criteria for Determining Infringement: “Copying” in Copyright vs. “Not Significantly Different” in Industrial Design Law

Determining infringement requires the application of fundamentally different legal standards under copyright law and industrial design law. Understanding these differences is central to developing and implementing an effective enforcement strategy.

Copyright: The Requirements of Access and Copying/Substantial Similarity

Under the copyright regime, infringement is, by its nature, an infringement of the protected form of expression embodied in the work, rather than of the underlying idea itself. Decree No. 17/2023/ND-CP establishes a clear analytical framework for assessing infringement by requiring that: (i) the scope of copyright protection be determined on the basis of the original form of expression; (ii) the originality of the work and the expression of the idea – rather than the idea in the abstract – be examined; and (iii) in comparing the allegedly infringing work or copy with the original work, due consideration be given to the time of creation and the alleged infringer’s opportunity to access the original work.

From that legal framework, in litigation, “copying” is often not acknowledged verbally, but is inferred through two technical “pillars of evidence”:

• (A) Access: the defendant had a reasonable opportunity to become familiar with before creating the suspected product (published work; exhibited; circulated through distribution channels; outsourcing-design relationship; access to design files, etc.). This is not a “formal condition,” but a key inference that the law requires to be considered.
• (B) Copying of Protected Expression (Substantial Similarity): The similarities between the two works must relate to the original, protectable creative choices embodied in the copyrighted work, rather than to common design motifs, features dictated by technical or functional considerations, or other unprotectable elements. Vietnamese law further recognises that an infringing copy may consist of the reproduction of either the whole or a substantial part of a protected work. Likewise, a work—or a portion thereof—may constitute an infringing element where it reproduces, in whole or in part, the protected work of another person.

The strategic consequence is clear: if the defendant can prove that they independently created the design (without knowing or accessing the original work) or provide evidence that “breaks” the line of reasoning that they accessed the original work before creating the similar product, then the element of “copying”—which is the core condition for copyright infringement—will be difficult to establish, and the plaintiff’s claim will therefore be easily rejected. Conversely, when the plaintiff establishes a chronological order (the original work existed first, the defendant had access to it) along with seemingly “unforeseen” coincidences in the original work, the resolving authority has a solid basis to determine the infringement in accordance with the logic of Article 66 of Decree 17/2023/ND-CP.

Industrial Designs: The “Not Significantly Different” Standard and the Overall Visual Impression Test

For industrial design rights, the infringement analysis does not primarily focus on whether the defendant copied the protected design. Instead, the decisive question is whether the external appearance of the accused product is identical with, or not significantly different from, the protected industrial design.

As a matter of statutory law, infringement occurs where, without the authorization of the rights holder and during the term of protection, a third party uses either the protected industrial design itself or a design that is not significantly different from the registered design.

Decree No. 65/2023/ND-CP further clarifies this standard in a more practical manner. A product – or a component of a complex product – is deemed to infringe an industrial design if its external appearance is identical with, or not significantly different from, a protected industrial design. In making this assessment, the competent authority does not rely on subjective impressions. Rather, it must compare the accused product against the scope of protection defined in the relevant title of protection, including the Industrial Design Registration Certificate, the decision recognising protection for an internationally registered industrial design, or the corresponding entry in the National Register.

The key to industrial design enforcement lies in properly understanding the concept of “not significantly different,” as this is the legal threshold that determines whether infringement exists.

• Under the Law on Intellectual Property, two industrial designs are not regarded as significantly different if they differ only in minor details that are difficult for an ordinary observer to notice or remember, and those differences are insufficient to produce a distinct overall visual impression. In other words, differences confined to insignificant details will not preclude a finding that the two designs are legally indistinguishable.
• Similarly, Decree No. 65/2023/ND-CP provides, for enforcement purposes, that a product is considered not significantly different where the combination of its design features, viewed as a whole, results in an appearance that is essentially a copy of the protected industrial design. Put differently, the accused design is so close to the registered design that it is virtually indistinguishable, or that any differences would be difficult for an ordinary observer to perceive.

Therefore, in practice, the evaluation standard often operates based on the “overall visual impression” from the perspective of the ordinary observer: differences in subtle, hard-to-notice details are rarely enough to exonerate the defendant; conversely, clear differences in the main structure/design features that alter the overall impression are the basis for arguing for “significant differences.” And most importantly, strategically: subjective intent (intentional or unintentional) and the argument “I designed it myself, I didn’t know” are not the decisive arguments as in copyright, because the exclusive right to industrial design is an exclusive right in rem (i.e., the exclusive right is tied to the protected design itself), aiming to exclude any use of identical/equivalent designs within the protection period.

4. Overlapping Rights and Strategic Choices: Which Enforcement Mechanism Should Be Preferred?

In many cases, a design object can be simultaneously protected by both copyright and industrial design rights. This creates a significant area of ​​intersection but also potential conflict in the strategy for enforcing those rights. Consider a possible scenario: Designer Medson creates a unique perfume bottle design that is both aesthetically pleasing (satisfying copyright protection) and novel (eligible for industrial design registration). Medson publishes the bottle design to the public and registers copyright for it, but fails to register for industrial design rights. Subsequently, Infit produces a perfume with a bottle design almost identical to Medson’s.

In this situation, which legal mechanism should Medson use to sue Infit? Since Medson does not yet have a patent, its only option is to sue for copyright infringement regarding the design of the perfume bottle. Medson must prove that Infit copied its bottle design: by demonstrating that the two bottle designs share similar lines and proportions, and that Infit may have seen Medson’s product (as Medson had previously published it). If they win, Medson could be awarded damages and ordered to cease the infringing acts. However, this case also reveals a drawback: if Infit argues that they designed it independently or made minor modifications (e.g., added patterns) and claim they did not copy Medson’s idea, the dispute becomes complicated. The court would have to carefully consider the degree of similarity and whether Infit had access to Medson’s design – a process that is not easy to prove.

Conversely, suppose Medson already held a registered industrial design for the bottle design before Infit launched its product. In this case, Medson could request action against the design infringement. With the registered industrial design in hand, Medson only needs to prove that Infit’s bottle is “not significantly different” from its protected design (through image comparison, or a VIPRI expert opinion if necessary). Expert opinion from VIPRI would be very helpful: if the conclusion confirms that “Infit’s bottle design infringes Medson’s registered industrial design,” the relevant authorities (e.g., the Ministry of Science and Technology Inspectorate, Market Management) have a solid basis for taking action. Infit would then find it difficult to defend itself with the argument of “original creation” because the law does not consider the element of copying in Industrial design infringement. This option is usually quicker: Medson can request the market management agency or the Science and Technology Inspectorate to inspect and seize Infit’s infringing products without necessarily initiating a court lawsuit, thanks to the clear legal basis provided by the registered industrial design. 

From the above example, the advantages and disadvantages of each option can be drawn:

• Copyright enforcement: The advantage is that no industrial design registration is required, and it can be applied flexibly to many types of creative designs (even those published long ago). The civil lawsuit procedure for copyright infringement is relatively open in terms of evidence (only need to prove that one is the author or legal owner, and can use copyright registration as evidence at the time). The long protection period (75 years) also allows for long-term protection of the work. However, the disadvantage is that the burden of proving the act of copying falls on the plaintiff: they must prove that the other party has illegally copied their work. This requires compelling evidence (regarding the degree of similarity and accessibility of the defendant). If the opponent modifies or redesigns the product slightly differently, the copyright holder may find it difficult to prove that it is a “substantive copy.” Furthermore, administrative procedures for copyright infringement in the industrial design field are not very effective; most cases require civil litigation or settlement.
• Industrial design enforcement: The outstanding advantage is the strong exclusive effect: simply having the opponent use a product with a “substantially similar” design is sufficient to constitute infringement, without needing to prove the act of copying or their intent. The owner can request drastic administrative measures (confiscation, destruction of infringing goods) thanks to the protection certificate. Proof is also easier – visual comparison of the two products, combined with technical expert opinions, is usually more convincing to the authorities. The principal limitation of this mechanism is that the industrial design must be registered before enforcement can be pursued. The registration process requires time and cost, and if the design is disclosed too early, the opportunity to obtain industrial design protection may be lost because the novelty requirement can no longer be satisfied. In addition, registered industrial designs enjoy only a limited term of protection (renewable every five years for a maximum of 15 years). Once the registration expires, the design enters the public domain, whereas copyright protection may continue to subsist if the design also qualifies as an original work of applied art. Furthermore, industrial design rights are limited in territorial scope (protection is only granted in Vietnam unless international registration is extended), while copyright is protected under the Bern Convention in many countries without requiring registration.

From a strategic perspective, businesses that own commercially valuable product designs – such as furniture, fashion products, or distinctive packaging – should, wherever possible, combine both forms of protection. Timely registration of an industrial design provides a powerful exclusive right that facilitates swift enforcement against look-alike products in the marketplace. At the same time, copyright protection – or, at a minimum, well-preserved evidence of the creative process – serves as an important complementary safeguard. It may support enforcement in jurisdictions where industrial design protection has not yet been obtained or continue to protect the creative work after the industrial design registration has expired. Rather than creating unnecessary duplication, this overlap establishes a layered intellectual property protection strategy, allowing rights holders to select the legal basis that best serves their commercial and enforcement objectives in each particular case.

Conclusion

In cases of “sophisticated imitation,” the question isn’t “which right is stronger,” but rather which right is more suitable to the evidence structure and enforcement objectives at the specific time. If you have a valid registered industrial design and the accused retains the basic design features, producing the same overall visual impression as the original product, then the “no significant difference” aspect of industrial design is usually a more direct and effective route to administrative enforcement. Conversely, if the infringed design is primarily in the motifs/graphics/artistic composition (especially when the competitor changes the shape but “steals” the creative expression), or when you haven’t/cannot register the design, then copyright becomes the crucial foundation, but it requires the claimant to establish basic access and copying (or substantial similarity), while distinguishing the protected expression from ideas and common design elements.

Don’t let disputes force you into a passive position. For commercially valuable designs, the optimal approach is often “double” protection (design registration + copyright registration/standardization of creative documentation), along with preparing a “well-organised evidentiary record” including: original design documents, publication timelines, market data, comparison samples, and appropriate expert assessment (especially examination at the National Intellectual Property Institute for designs and examination at the Copyright and Related Rights Examination Center for copyright). When infringement occurs, the goal is not just to be “legally correct,” but to maximize the chances of quick acceptance and processing, creating sufficient pressure to stop the infringement and control damages.

With 15 years of experience and a proven position in the field of Intellectual Property, KENFOX IP & Law Office understands the legal challenges related to the protection and enforcement of rights for applied designs. We not only assist businesses in establishing and registering industrial design and copyright rights, but also develop in-depth consulting and litigation strategies, focusing on identifying and proving “core creative elements” – key factors for effectively protecting design assets and optimizing the chances of success in complex infringement disputes.