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

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, hat makes NOIP does not agree and keep their own intention to refuse issuing the protection titlet. Therefore, when receiving intention notice to refuse issuing protection titles, applicants should find legal advice from consultants who have experience in intellectual property.

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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.

Source: http://www.antlawyers.vn/legal-service/granting-investment-registration-certificate-in-vietnam.html

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How to Apply for Birth Certificate for Newborn in Vietnam?

How to overcome challenges to apply for birth certificate in Vietnam?

For children of foreigner and Vietnamese born in Vietnam, the procedure to apply for birth certificate in Vietnam is carried out at the Vietnam’s provincial Department of Justice.

In today’s globalized world, it has become more common that people from different cultural backgrounds travel, and meet their spouse.  Their children were born with happiness however they would face difficulties when applying for birth certificate for the newborn in Vietnam.  For the parents, the difficulties of registering birth certificate in Vietnam could range from the choice of name, nationality, or whether or not the child is born out of wedlock.

When a child between a foreigner and a Vietnamese is born in Vietnam, according to the regulation on the registration and management of civil status, the Department of Justice will be the Vietnam government agency issuing the birth certificate.

In cases where parents choose foreign nationality for the child, they must obtain the agreement of the parents about the choice of nationality. The valid agreement of the parents about the choice of nationality shall be certified by the local authority.

After receiving a application dossier for birth certificate for newborn in Vietnam, civil status officials of the Department of Justice records in the birth registration and original birth certificate. The director of the Department of Justice shall sign and issue an original birth certificate for the newborn.  Copies of birth certificates are issued at the request of the applicant.

For children born out of wedlock, if the father is not identified, the information about the father in the birth registration book and birth certificate are left blank. When the father officially agrees to recognize father for a child, he has to carry out the procedure at the Vietnam’s provincial Department of Justice.  The birth certificate could also be revised to reflect the father’s details into the new birth certificate.  This birth certificate will be very important when the father applies foreign citizenship for the child.

The child can be named according to parental choice to be recorded on the birth certificate.

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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.

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Brazilian Applied Anti- Dumping Tax 18% on Seamless Stainless Steel Tubes from Vietnam

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

On April 24th, 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 15th, 2017.

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

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

Related Post:

Anti – Dumping Tariff May Officially be Imposed on Galvanized Steel

Decision 3993/QD-BCT on Investigation to Apply Anti-Dumping Measure

Anti-dumping of Goods Imported to Vietnam

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Renewal of License for the Establishment of Branches Office in Vietnam

How to extend branch license in Vietnam?

The extension of the license for the establishment of a foreign trader’s branch in Vietnam shall be following the regulation of the commercial law and the relevant guiding decrees and circulars under Vietnam laws.

Preparation of dossiers for extension of license for the establishment of branches includes:

• Application for extension of license for the establishment of branches, made according to the form set by the Ministry of Industry and Trade, signed by a competent representative of the foreign trader;

• A copy of the business registration certificate or equivalent paper of the foreign trader that is translated into Vietnamese and certified by a Vietnamese diplomatic mission or consulate abroad consular legalization in accordance with the law of Vietnam;
• Copies of audited financial statements or documents certifying the fulfillment of tax or financial obligations in the latest fiscal year or papers of equivalent value issued by competent agencies or organizations (where the foreign trader established) to prove the existence and operation of the foreign trader in the latest financial year, it must be translated into Vietnamese and authenticated in accordance with the provisions of Vietnamese law;
• A copy of the license for the establishment of the branch.

Related Post:

The difference between setting up branch office or company in Vietnam.

How to set up branch office in Vietnam?

What forms of investment in Vietnam?

The order and procedures for extension of the license for the establishment of the branch at a competent agency shall be as follows:

• A dossier for extension of the license for the establishment of the branch must be submitted within 30 days at the latest before the license expires;
• Foreign traders submit applications directly or via post or online (if applicable) to the Ministry of Industry and Trade;
• Within 03 working days from the date of receipt of the dossier, the Ministry of Industry and Trade shall check 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 05 working days from the date of receipt of the complete and valid dossier, the Ministry of Industry and Trade shall renew the branch establishment permit. In case of non-renewal, the reasons therefor must be clearly stated in writing;
• In case the extension of the license for the establishment of the branch is not governed in specialized legal documents, the Ministry of Industry and Trade shall send a written request for comment to the specialized management ministry within 03 working days from the date of receipt of a complete and valid file. Within 5 working days from the date of receiving the Ministry of Industry and Trade’s written request, the specialized managing ministries shall clearly state whether they agree or disagree with the license extension. Within 5 working days after receiving the opinions of the specialized management ministry, the Ministry of Industry and Trade shall extend or not extend the branch establishment permit to the foreign trader. In case of non-renewal, the reasons therefor must be clearly stated in writing;
• Within 15 days from the date of extension of the license for the establishment of the branch, the Ministry of Industry and Trade shall publish on the website of the Ministry.

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

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Guidance of Representative Office Setting-up in Vietnam

Establishment of representative offices of foreign traders in Vietnam

The establishment of representative offices of foreign traders in Vietnam have to follow the procedures as guided by the Commercial Law in Vietnam and the related decrees providing instructions of the law.

Preparation of dossiers for establishment of representative offices includes:

• An application form for License for Establishment of the representative office using the form promulgated by the Ministry of Industry and Trade and signed by a competent representative of the foreign trader.

• Copies of the Certificate of Business Registration or equivalent documents of the foreign trader (shall be certified or legalized by overseas diplomatic missions or Consulates of Vietnam under laws of Vietnam);
• A letter of appointment of the head of the representative office (shall be translated into Vietnamese and certified true in accordance with laws of Vietnam);
• Copies of audited financial statements or certificates of fulfillment of tax liabilities or financial obligations of the last fiscal year or equivalent documents as proof of existence and operation of the foreign trader issued or certified by competent authorities where such foreign trader is established (shall be translated into Vietnamese and certified true in accordance with laws of Vietnam);
• Copies of the passport or ID card (for Vietnamese) or copies of the passport (for foreigners) of the head of the representative office (shall be translated into Vietnamese and certified true in accordance with laws of Vietnam.);
• Documents on the expected location of the representative office including:

Copies of memorandum of understanding or leasing agreements or documents as proof of the right to use a location as the representative office;

Copies of documents on the expected location of the representative office.

Procedures for granting of Licenses for Establishment of representative offices:

• Foreign traders submit applications directly or via post or online (if applicable) to the Department of Industry and Trade of the locality where the representative office is to be located.
• Within 03 working days from the date of receipt of the dossier, the Department of Industry and Trade shall examine and request the supplement if the dossier is incomplete and invalid. Requests for additional records are made at most once during the processing of applications.
• Except for the establishment of a representative office have to submit for directions of the relevant Ministry of Industry, within 07 working days from the date of receipt of a complete and valid application the Department of Industry and Trade shall grant or refuse to grant a license for establish a representative office for foreign trader. In case of refusal, the reasons must be clearly stated in writing.
• Where the establishment of a Representative Office is subject to the approval of the relevant Minister or the Head of the ministerial level agency and the establishment of a Representative Office not yet stipulated in the normative document. The Department of Industry and Trade shall send a written request for directions to the specialized management ministry within 03 working days from the date of receipt of a complete and valid dossier. Within 05 working days from the date of receipt of the written request for the directions of the Department of Industry and Trade, the specialized management ministry shall issue a written statement stating its consent or refusal to grant a license for the establishment of the representative office. Within 5 working days after receiving the opinions of the specialized managing ministries, the provincial / municipal Industry and Trade Services shall grant or refuse to grant permits for the establishment of representative offices to foreign traders. In case of non-licensing, the reasons therefor must be clearly stated in writing.

In addition, for certain special cases managed by the specialized management ministry, the licensing of representative offices is carried out in accordance with the specific regulations.

Representative office in Vietnam could be set up if meeting conditions as stated in the law.

The foreign trader should understand the rights and obligations of the representative office in Vietnam.

The representative office have to follow the labour regulations in Vietnam in regard to employment termination for managers, employee and their personal income taxobligations.

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

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