The Benefit from Protecting Invention Patent

How to Register invention in Vietnam?

Invention protection shall bring advantages for the owner of invention including the usage and application within the duration of 20 years. As Law on intellectual property of Vietnam, an invention patent shall be valid from the grant date until the end of twenty (20) years after the filing date.

Besides, Invention patent can bring its owner the followings:

The steady position on the market: with the invention patent, the owner of the invention shall have rights to prevent others from using their invention with commercial purpose. This will reduce the competitive capacity of competitors and bring preferred position for the owner.

Right to sell and license the invention: in case owners of inventions cannot use their invention by themself, they can sell or license the use of their inventions to other people or companies. They can license only the right of use and sell all of their inventions. This does not only bring them a lot benefits but also avoid risks because of the competition on the market.

When your inventions have been commercialized and got the significant position on the market, other companies or people might tend to copy and use your invention illegally or sell other products which are similar to yours. If your inventions were not properly registered at competent authority, the competitors and violators can use your inventions without breaching of law.

Therefore, it is essential to register a new invention to protect the owner’s rights to avoid unfair competition on the market.

Source: ANTLawyers.vn

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Transfer of Investment Projects in Vietnam

What steps to be taken to transfer an Investment Project in Vietnam?

Under the current Law on Investment, investors are entitled to transfer part or all of the project to another investor when satisfied the specific conditions and conducting to procedure of project adjustment under the regulation of law.

The conditions of project transfer

·         The project is not terminated in the cases as prescribed in Clause 1 Article 48 of Law on investment;

·         Investment conditions applied to foreign investors are satisfied in case the foreign investor receives a project of investment in conditional business lines;

·         Regulations of law on law, real estate trading is complied with if the project transfer is associated with transfer of land;

·         Conditions in the Certificate of investment registration or relevant regulations of law are complied with.

Preparation of dossier

·         A written request for permission for project adjustments;

·         A report on the project’s progress up to the time of transfer;

·         The project transfer contractor an other document with equivalent legal value;

·         Copies of the ID card or passport (if the investor is an individual) or Certificate of Enterprise Registration or another document with equivalent legal value (if the investor is an organization);

·         Copies of the Investment Registration Certificateor decision on investment guidelines (if any);

·         Copies of the BCC contract (for BCC projects);

·         Copies of one of the following documents of the transferee: financial statements of the last 02 years; commitment to provide financial support by the parent company, commitment to provide financial support by a financial institution, the guarantee of transferee’s financial capacity, documents describing the transferee’s financial capacity;

Order and procedure

·         Investors submit the dossier at Department of Planning and Investment (or Management of Economic Zone or High-tech Zone);

·         Within a period of 10 working days from the date of receipt the complete and valid dossier for an investment project operating under an investment license and not subject to decision of investment policy (or 28 working days from the date of receipt the complete and valid dossier for an investment project which is subject to investment decision of the provincial People’s Committee; 47 working days from the date of receipt the complete and valid dossier for the investment project subject to the decision of the Prime Minister), the competent authorities consider and decide to adjust the investment registration certificate to the investor transferring the project.

Before transferring an investment project, investors need to evaluate the legal situation, apart from the financial, personnel, and other key issues of the project, which are subject of the transfer. Therefore, to ensure effective transfer, investors often engage law firms with highly qualified lawyers in Vietnam to conduct M&A legal due diligence related to the legal documentation of the owner, capital contribution of the shareholder or member, tangible assets (land use rights, plant and machinery, equipment, etc.) and invisible assets (including industrial property rights), licenses, contracts or transactions of great value, taxes and other legal risks such as litigation or disputes which could significantly impact the project..

The transfer of an investment project is an administrative procedure with a state agencies that is only smooth when the parties reached agreements. In fact, the transfer of the investment project’s timeline depends on the appraisal and evaluation process of the parties involved in the project.

Source: ANTLawyers.vn 

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How to Terminate Representative Office in Vietnam?

Termination of operation of representative offices of foreign trader in Vietnam

Foreign Traders wishing to terminate the operation of representative office in Vietnam need to complete the procedure at Tax authorities, the Provincial Department of Industry and Trade and the procedure to return the seal at the police.

Pursuant to the provisions of the Vietnam laws, the termination of operation of representative offices of foreign traders in Vietnam at the Provincial Department of Industry and Trade shall be conducted as follows:

Preparation of dossiers for termination of operation of representative offices includes:

• Notice of termination of operation of the representative office, made according to the form set by the Ministry of Industry and Trade, signed by the competent representative of the foreign trader.
• List of creditors and unpaid debts, including tax debts and social insurance premiums;
• List of employees and their respective current interests;
• Original License for establishment of representative office.
• Documents evidencing that the representative office has fulfilled all tax and financial obligations to the State of Vietnam

The order and procedures for termination of operation of representative offices at competent agencies shall be as follows:

• The foreign trader submits a dossier for termination of operation of the representative office directly or via post or online (if applicable) to the Provincial Department of Industry and Trade (or the Management Board of Industrial parks, export processing zones, economic zones and hi-tech parks) where the representative office is licensed.
• Within three working days from the date of receipt of the file, the competent authority shall examine and request the supplement if the dossier is incomplete and invalid. Requests for supplementary records are made at most once during the process of processing applications;
• Within a time-limit of five (05) working days from the date of receipt of a complete and valid file, the competent authority shall be responsible to publish on its website the termination of operation of the representative office.
• Foreign traders shall publicly post up the termination of their operation at the representative office.

Foreign traders whose representative offices have terminated of operation shall be responsible for performing contracts, paying debts, including tax debts and settling lawful interests for laborers who have worked at the representative office in accordance with the laws.

Source: ANTLawyers

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Granting Investment Registration Certificate in Vietnam

How to obtain an Investment Registration Certificate in Vietnam?

As Vietnam integrates further into the global supply chain, foreigners are more and more encouraged to invest in Vietnam in many areas for pursuing profit.  The foreign direct investment of the foreigners is required to be registered at Vietnam state authority to protect the rights of the investor.

According to the Law on Investment 2014, investment projects of foreign investors; projects of setting up a economic organization in which foreign investors holding 51% of charter capital or more or the majority of the general partners are foreigners in a partnership; projects of BCC contract between domestic investors and foreign investors or between domestic investors and economic organization which foreign investors holding 51% of charter capital or more or the majority of the general partners are foreigners shall need to conduct the procedure of applying investment registration certificate as regulations of law.

Preparation of dossier

·         A written request for permission for execution of the investment project;

·         A copy of the ID card or passport (if the investor is an individual); a copy of the Certificate of establishment or an equivalent paper that certifies the legal status of the investor (if the investor is an organization).

·         An investment proposal that specifies: investor(s) in the project, investment objectives, investment scale, investment capital, method of capital rising, location and duration of investment, labor demand, requests for investment incentives, assessment of socio-economic effects of the project;

·         Copies of any of the following documents: financial statements of the last two years of the investor; commitment of the parent company to provide financial support; commitment of a financial institutions to provide financial support; guarantee for investor’s financial capacity; description of investor’s financial capacity;

·         Demand for land use; if the project does not use land allocated, leased out by the State, or is not permitted by the State to change land purposes, then a copy of the lease agreement or other documents certifying that the investor has the right to use the premises to execute the project shall be submitted;

·         Explanation for application of technologies to the project which specifies: names of technologies, origins, technology process diagram, primary specifications, conditions of machinery, equipment and primary technological line;

·         The business cooperation contract (BCC) (if the project is executed under a BCC).

Order and Procedure

·         Investors submit the dossier at Department of Planning and Investment (or management of economic zones, high-tech zones);

·         Within 15 working days from the date of receipt of a complete and valid dossier, the competent authority shall grant the investment registration certificate for investors.

In practice, the time duration would be lengthened due to the time for preparation of documents from investor, getting them notarized, legalized and authenticated before being accepted in Vietnam. The documents in foreign languages shall need to be translated into Vietnamese.  The actual time for processing paper at the State authority would also last longer in practice when the State authority evaluate the project plan of the investor to ensure that its investment purpose is achievable economically and in accordance to the regulations of Vietnam.  It is advised that the client engage professional law firm in Vietnam to assist with advisory and investment registration process.

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How to Handle Rejection of International Trademark Registration In Vietnam By The NOIP?

Cancellation Against of Trademark in Vietnam

The procedure to register a trademark in Vietnam is carried out at the National Office of Intellectual Property of Vietnam (NOIP). The duration calculated from the full receipt of the dossier to the announcement is at least 12 months, or it can be expended from 16 months to 18 months.

However, in many cases, NOIP could send a notice on its intended refusal of the trademark application because of the following reasons:

·         There are grounds to affirm that the subject matter stated in the application does not fully satisfy the conditions for protection;

·         If there are more than one registration applied in the same time with full conditions to issue the protection title, but your application is not the first.

After receiving the refusal intention notice, applicants and all organizations and individuals have rights to reject the notice within 02 months, this duration can be extended one time, the extended time is 02 months.

If reasons in the notice are not correct and the applicant does not agree with the notice, within the given duration, the applicant could send written comment to NOIP, in which display the applicant’s comment, submit supplemental documents and proof to support.

After receiving the written comment, NOIP shall re-examine before issue the final decision.

The time limit for re-examination of applications is equal to two thirds of the time limit for examination; for complicated cases involving many circumstances which need to be verified or requiring expert opinions, that time limit may be prolonged but must not exceed the time limit for examination. Re – examination is only carried out one time.

However, in many cases, the applicant cannot display convincing arguments or reliable proofs, that makes NOIP does not agree and keep their own intention to refuse issuing the protection title. Therefore, when receiving intention notice to refuse issuing protection titles, applicants should find legal advice from consultants who have experience in intellectual property.

Source: ANTLawyers.vn

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Brazil started to apply anti-dumping tax on goods from Vietnam

On April 24^th, 2017, the Brazilian investigation authority decided to initiate an investigation to verify the existence of dumping, injury and a causal link between them in the imports of seamless stainless steel tubes imported from Malaysia, Thailand and Vietnam

Investigated products are seamless stainless steel tubes with diameter equal or higher than 6mm and not higher than 2.032 mm and thickness equal or higher than 0.40 mm and not higher than 12.70 mm, classified as HS code: 7306.40.00 and 7306.90.20 on the Common Nomenclature of MERCOSUR – NCM, from Malaysia, Thailand and Vietnam.

Plaintiffs are Aperam Inox Tubos Brasil Ltda. and Marcegaglia do Brasil Ltda.

The alleged dumping margin with Vietnam is 18.0%, Malaysia is 26.4% and Thailand is 19.1%

The Period of Investigation is from October 2015 to September 2016 and the injury period is from October 2011 to September 2016.

The time duration for concerned parties to answer and submit the questionnaire is 30 days since the date of receiving (this duration shall be extended but not exceeding 30 days).  Concerned parties shall have 20 days to register to join the investigation i.e. May 15^th, 2017.

All concerned parties shall have 70 days to submit comments about using alternative country for normal value calculation, by Jul 3^rd, 2017.

If concerned parties have legal representative, the representative shall be allowed within 91 days since the initiation of the investigation, by Jul 24^th, 2017.

To ensure the rights and benefits, the concerned parties are suggested to join and submit the questionnaire fully and find the support from experienced anti-dumping law firm and lawyers in Vietnam and Brazil.

Our lawyers in Vietnam constantly follow up with changes of law to provide the client with update for better decision making process.

Source: ANTLawyers.vn

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How To Conduct Legal Due Diligence for M&A in Vietnam?

Legal Due Diligence help management make better investment decision in Vietnam

Mergers and Acquisitions (M&A) has become popular in Vietnam as the country develops and more investors are eager to invest and gain control of the business enough to engage in, decide important business matters through partial or full ownership of an enterprise.  A successful M&A mean the parties achieve their financial and commercial goals (increasing capital, raising management capacity, branding, etc) and ensuring safety and restraint the risk at the lowest level, though legal due diligence undertaken by law firm in Vietnam.

The Importance of Legal Due Diligence of Enterprise in M&A activities

Legal due diligence of enterprises focuses on full and detailed assessment of legal issues relating to the legal entity, capital contribution status, shareholder status, legal rights and obligations. From the investigation information, the parties can anticipate legal risks, assess opportunities to come up with alternatives. In addition, legal assessments help parties evaluate the reliability of their counterparts as well as understand their advantages and constraints for the negotiation process.

What Legal Due Diligence in M&A Activities Entail?

• Evaluate the factors related to the legal status and capacity of the target enterprise: Review the legitimacy of the establishment, operation, possession of enterprise; ensure that the enterprise is not subject to procedures for dissolution or bankruptcy and compliance with the law of the enterprise in the course of operation. The information to be checked includes: dossiers, certificate of enterprise establishment, operation licenses, practice certificates, professional liability insurance, company charter, agreement between the company owner on rights of shareholders, capital contributors, minutes of meetings, member/shareholder register, certificate of capital contribution.
• Evaluate the factors related to the business and financial activities of the target enterprise: Review the system of customers and partners of the enterprise; the documents on economic contracts (with customers, suppliers, etc); dossier of investment, construction, land, project; information on guarantee, mortgage (if any), debt and credit agreement, M&A, financial leasing contract, exclusive contract, franchise, etc, in terms of value, legality, validity, progress to evaluate legal risks in the future. Review the financial statements on the accuracy of the financial status of the business.
• Verify the factors related to labor: Review labor contracts, labor agreements, internal labor regulations to determine the enterprise’s financial obligations to employees, compliance Labor law and reception of labor after the purchase or sale.
• Verify the factors related to intellectual property: Review intellectual property rights of enterprises including: trademarks, trade names, industrial designs, layout designs, business secrets, etc; the property has granted the patent/license. Review matters of infringement of intellectual property rights of other organizations, individuals or legal persons in order to anticipate the risks of being sued or claiming damages.

In addition, in an M&A deal, the acquirer should ensure that participation in capital contribution or acquisition of the target enterprise is permitted, the form of M&A implementation is in accordance with the law and the M&A deal was approved by the competent authority of each party. After that, the factors related to M&A transaction procedures and constraints and restrictions of law (if any) must be evaluated.

Our lawyers in Vietnam constantly follow up with changes of law to provide the client with update for better decision making process.

Source: ANTLawyers.vn

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