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NEWS & LEGAL UPDATES

[News] Human resource News in 2020

Aplolat Legal is pleased to welcome Mrs Tran Thi Minh Hieu and Ms Le Trinh Anh Thu.

Mrs Tran Thi Minh Hieu – Paralegal

Mrs Tran Thi Minh Hieu has been experienced legal practice as a legal intern in some law firm in HCMC since she was a 3rd-year student. Before becoming a member of Apolat Legal, she has had opportunities for almost 2 years working in another law firm to access various legal fields.

Mrs Hieu has planned for herself many specific goals from time to time to become a lawyer. She has gained the Lawyer Practice Certificate issued by the Ministry of Justice and becoming a trainee lawyer in Apolat Legal.

Ms Le Trinh Anh Thu – Paralegal

Ms Le Trinh Anh Thu graduated with an excellent degree from Advanced Program at Ho Chi Minh University of Law (HCMULAW). When studying at HCMULAW, she attended many academic competitions and received many awards, including First place in HCMULAW Comprehend Criminal Law Competition, First place in HCMULAW Law Lecturing Competition, Top 4 in HCMULAW Civil Law Challenge, Top 8 HCMULAW Vmoot Court Season 1 and HCMULAW Merit Scholarships. Besides, Ms Thu used to be a member of the leadership team member of HCMULAW Clinical Legal Education Club (CLE). During the time at CLE, she supported lawyers in pro bono activities.

After graduating from HCMULAW in July 2019, she decided to continue studying Law and Management major at Bangor University in the United Kingdom.

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[Legal Updates] Letter of quick legal updates 202010

1. The Government has just issued Decree No. 122/2020/ND-CP dated October 15th, 2020 regulating on coordinating and linking up procedures for registration of establishment of enterprises, branches and representative offices, report on the use of employees, issue identification numbers of units participating in social insurance, and register to use corporate invoices 

On October 15th, 2020, the Government has just issued Decree No. 122/2020/ND-CP regulating procedures on coordinating and linking up for registration of establishment of enterprises, branches and representative offices, report on the use of employees, issue identification numbers of units participating in social insurance, and register to use corporate invoices.

This Decree applied to enterprise founders, enterprises registered for the operation of branches, representative offices, provincial business registration authority, labor state management agencies, social insurance agencies, tax authorities.

The business registration authority is the focal point agency to receive dossiers and return results of the procedures specified in this Decree. Relevant authorities coordinate and interconnect procedures through connection and sharing of digital data among information technology systems.

The Decree also issues and applies new application forms in business registration procedures, and notices the registration of branches and representative offices from the effective date.

Specifically, the procedures for interconnection between relevant authorities are as follows:

(i) The business registration authority and social insurance agencies:

After the issuance of establishment registration or there is a change in enterprise registration contents, branches, representative offices, the business registration authority shall share information about the Enterprise Registration Certificate and the Certificate of Branch/Representative Office Registration and information about the expected total number of employees, business lines and payment methods of social insurance to the social insurance agencies.

Enterpris code, Branch/Representative Office code are used as the code of units participating in social insurance.

(ii) The business registration authority and labor state management agencies:

The business registration authority shares information about full name, enterprise code, address, legal representative, the head of the branch/representative office, main business line and total number of employees expected with The Labour, War Invalids and Social Affairs Office or Department of Labour, War Invalids and Social Affairs (for enterprises in industrial park).

(iii) The business registration authority and tax authorities:

If the application for registration of establishment of the enterprise, branch or representative office is valid, the business registration authority shall share information about registration information of enterprise establishment and registration information to use invoices with the tax authorities.

Tax authorities share information about Enterprise Code, Branch/Representative Office codes and and decentralization of directly tax management authorities with the business registration authority.

Based on the information returned by the tax authorities, the business registration authority shall issue a Certificate Enterpries, branches, representative offices and Notify the managing tax authority to the enterprise.

(iv) Labor state management agencies and social insurance agencies:

Vietnam Social Security shares information on changes and increases and decreases in employees of enterprises, branches and representative offices of the Ministry of Labor, War Invalids and Social Affairs through the National Public Service Portal.

Decree No. 122/2020/ND-CP comes into effect on October 15th, 2020. 

2. Goverment has just issued Decree No. 119/2020/ND-CP dated October 7th, 2020 regulating on sanctioning administrative violations in press activities, publishing activities 

On October 7th, 2020, the Government issued Decree No. 119/2020ND-CP, regulating on administrative sanctions in press activities, publishing activities.

This Decree specifies regulated entities, administrative violations, penalties, fines, remedial measures on administrative violations against regulations on press activities, publishing activities.

The scope of Decree applies to organizations and individuals that commit administrative violations against regulations on press activities, publishing activities in the territory of Vietnam.

Accordingly, for prominent press activities on license violation; violating regulations on posting and broadcasting information content on newspapers, newsletters and special issues; violating regulations on export and import of printed newspapers; violating regulations on receiving foreign television signals directly from computers that are not part of radio and television services; violating regulations on general websites can be fined up to VND 200,000,000, confiscate material evidence of the violation, the license shall be suspended or suspend operation, take remedial measures such as correcting, apologizing, removing false information, information that violates the law, forced removal of news, articles on electronic newspapers, electronic magazines, audio press, visual press have contents that are not following the principles and purposes of the license, forcing the destruction of press products, giving back illegal benefits, etc.

For publishing activities, the violations that need to be noted are violations of the provisions of the license, the conditions for publishing activities; violating the regulations on publication content; regulations on publication printing activities; regulations on conditions for electronic publishing and distribution of electronic publications; may be subject to a fine of up to VND 200,000,000, suspension of licenses or suspend operation for a definite time and take some remedial measures such as forced publication revocation, destruction of the publication, forced to submit illegal benefits, forced a public apology, etc.

The fine imposed on an individual is one half as much as the one imposed on an organization for the same administrative violation.

Decree No. 119/2020/ND-CP comes into effect on December 1st, 2020.

Download Legal Updates as a PDF here. 

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[Legal Updates] Goverment has just issued sanctioning administrative violations in the medical field

1. Goverment has just issued Decree No. 117/2020ND-CP dated September 28th, 2020 regulating on sanctioning administrative violations in the therapeuticfield 

On September 28th, 2020, the Government issued Decree No. 117/2020ND-CP, regulating on administrative sanctions in the medical field. Especially pay attention to alcohol, beer and tobacco field, with 12 Articles detailing penalties for violations.

Accordingly, violating regulations on smoking locations can result in a warning or a fine up to 10,000,000 VND. The failure to have signs does not sell tobacco to people under 18 years old shall be fined from 1,000,0000 VND to 3,000,000 VND. Violations of regulations on selling and supplying tobacco will be fined from 3,000,000 VND to 5,000,000 VND and additional penalties may be imposed and also the remedial measures. A fine can be up to 40,000,000 VND for violations on labelling and printing health warnings on tobacco packages, and additional penalties and other remedial measures.

Regarding the alcohol and beer field, regulations on penalties for behaviors of using, selling, promoting, advertising, etc. Accordingly, drinking alcohol and beer at the age of 16 but less than 18 is illegal and can be warned or fined up to 500,000 VND. It is also illegal to sell alcohol or beet at place that is not allowed to be sold, which can result in a fine up to 10,000,000VND. Furthermore, not taking preventive measures, detecting and preventing drivers from drinking alcohol or beer right before and while in traffic, vehicle owners may be fined up to 10 million VND, etc.

Decree No. 117/2020/ND-CP comes into effect on November 15th, 2020.

2. Ministry of Construction has issued Official Letter No. 4757/BXD-QLN dated October 01st, 2020 responding the recommendations of voters of Ho Chi Minh City to consider and explain clearly the relevant regulations and sanctions on using the apartment to do business on hourly and short-term rental services 

In Official Letter No. 4757/BXD-QLN dated October 1st, 2020, Department of Construction (DOC) stated that, under Article 10 of Law on Housing 2014, House owners are organizations, domestic family, individuals, overseas Vietnamese are intitled to use the house for residential purposes and other purposes not prohibited by law; at the same time, Article 6 of this Law also prohibits the use of apartments for non-residential purposes.

At Article 35 of Decree No. 99/2015/ND-CP dated October 20th, 2015 of Government detailing and guiding the implementation of some articles of Law on Housing stipulates prohibited acts in management and use of an apartment building such as arbitrary conversion of functions and use purposes of the apartment building; carry out the prohibited acts specified in Artilce 5 of Law on Housing.

Therefore, according to the Law on Housing, the act of using an apartment for non-residential purposes such as doing business on hourly or short-term rental services is prohibited.

Circular No. 02/2016/TT-BXD dated February 15th, 2016 of Minister of Construction issuing the Regulation on management and use of apartment buildings. At Article 48 and 49 of Regulation No. 02 specify the responsibilities of People’s Committee of wards and districts in handling according to their competence or by requesting competent authorities to handle violations actsin the management and use of the apartment building.

Violations in management and use of the apartment building will be administratively sanctioned according to the provisions of Decree no. 139/2017/ND-CP dated November 27th, 2017 of government on penalties for administrative violations against regulations on investment and construction; extraction, processing and trading of minerals used in construction, production and trading of building materials; management of infrastructural constructions; real estate business, housing development, management and operation of apartment buildings and office buildings.

3. The limited time for granting Work Permits for foreign labors is reduced to 17 working days

On October 7th, 2020, the Department of Justice (DOJ) and the Department of Labor, Invalids and Social Affairs (DOLISA) of Ho Chi Minh City have signed a joint plan on administrative procedure reform of the two agencies.

Previously, on July 7th, 2020, the People’s Committee of Ho Chi Minh City decided to issue a regulation on inter-group implementation of granting criminal record certificates and work permit for foreigners working in HCMC.

Accordingly, DOLISA is the agency receiving dossiers and returning the settlement results for inter-connected administrative procedures. DOJ of HCMC shall receive and process the request for issuance of criminal record certificates sent by DOLISA.

Within 17 working days (from the date of receipt of a complete and valid dossier),  DOLISA shall return the result to the applicant (including criminal record certificates and work permit). This term was 20 working days as previous.

This regulation has contributed to the implementation of administrative procedure reform, reducing paperwork, shortening processing time, saving costs, creating maximum favorable conditions for people in the implementation of administrative procedures. In addition, it also ensures the timeliness, accuracy and consistency of information on individuals’ personal identities, minimizing troublesome and difficulties things for people, at the same time, it contributes to the elimination of negative behaviors of administrative procedures.

Download Legal Updates as a PDF here.

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ARTICLES

Nonperforming loan investment in Vietnam – what should foreign investors notice?

Commencing from the global financial crisis in 2008, “nonperforming loan” has become a common problem for the worldwide credit system in particular and the economy in general. There is no single definition of a nonperforming loan. Country definitions differ, and it is recognized that it is possible that what is appropriate in one country may not be so in another. However, from the point of view of the World Monetary Organization (IMF):

“A loan is nonperforming when payments of interest and/or principal are past due by 90 days or more, or interest payments equal to 90 days or more have been capitalized, refinanced, or delayed by agreement, or payments are less than 90 days overdue, but there are other good reasons—such as a debtor filing for bankruptcy—to doubt that payments will be made in full.”[1]

In Vietnam, according to the State Bank’s regulations, “debt” includes:[2] 

  • Loans, advances, overdrafts and financial leases; 
  • Discounts, rediscounts of commercial papers and other valuable papers; 
  • Factoring amounts: and 
  • Other forms of credit facilities.

These debts will be classified by credit institutions into 05 groups, including:[3]

Group 1: Qualified debts;

Group 2: Debts, which need special attention;

Group 3: Sub-standard debts;

Group 4: Doubtful debts; and

Group 5: Potentially irrecoverable debts.

Of which, Bad debts (Nonperforming Loan – NPL) are debts, which have been classified as those in Groups 3, 4 and 5 mentions above. The ratio of bad debts to the total outstanding debt is used to assess the credit quality of credit institutions.

In Vietnam, the NPL ratio tended to increase from the end of 2007 and became more severe since the end of 2011. According to reports of credit institutions, as of May 31, 2012, the system’s bad debt was 117,723 billion dongs, accounting for 4.47%. However, the State Bank has announced a bad debt ratio of 8.82% (2012), far exceeding the figures announced by commercial banks. Even as of May 2015, when fully reassessing bad debt sources, the State Bank gave a NPL ratio doubled to 17.21% as of September 30, 2012, equivalent to VND 465,000 billion of non-recoverable loans.[4] Meanwhile, according to international practice, the acceptable safe ratio of bad debt is below 3%.

In order to settle with the NPL increment, in mid-2013, the Government and the State Bank of Vietnam gave out many solutions, including:

  1. Directly supporting from the Government, providing additional capital to financial institutions to improve their financial capacity;
  1. Adjusting regulations related to NPL classification and management or allow credit institutions and borrowers to negotiate debt settlement plans in various forms such as asset liquidation, term structure debt repayment, interest rate exemption or reduction;
  1. Establishing of Asset Management Company of Vietnam Credit Institutions (VAMC) in accordance with the provisions of Decree No. 53/2013 / ND-CP to manage NPL, promote reasonable credit growth for the economy. VAMC is organized in the form of a one-member limited liability company (LLC) with 100% charter capital owned by the State Government of Vietnam;
  1. Allowing and giving specific instructions for debt purchase and sale activities of foreign credit institutions, bank branches by Circular 09/2015 / TT-NHNN;
  1. To organize piloting policies on handling bad debts and handling collateral of bad debts of credit institutions, foreign bank branches, and organizations in which the State Government establishes and owns 100% charter capital to deal with bad debts of credit institutions, following Resolution No. 42/2017 / QH14 approved by the 14th National Assembly, the 3rd session on June 21, 2017.

Except for measures (1), (2), which are applied explicitly to particular entities, the remaining regime on trading and management NPL are regularly adjusted and updated for suitable with the new situation, and also the options that investors can consider if they want to invest in bad debt in Vietnam. Namely:

1. If to Vietnamese credit institutions and banks

According to currently valid regulations, in addition to adjusting regulations related to classification and management of bad debts or negotiating debt settlement plans with borrowers, Vietnamese credit institutions and banks can only sell NLP balance to VAMC by (i) by special bonds issued by VAMC; or (ii) by market value. Therefore, if to the NPL of Vietnamese Credit Institution, banks, Investors will have to work directly with VAMC to buy back these debts.

However, to VAMC, the NPL must meet the following conditions:[5]

a) The credit institution’s bad debts, including the ones in activities of credit granting, purchase of corporate bonds, trusted purchase of corporate bonds and trusted credit granting and other activities as prescribed by the State Bank. 

b) Bad debts with collateral;

c) Bad debts and collateral must be legal with valid documents and papers;

d) Loan customer still exists;

e) The balance of bad loans or outstanding loan customer is not lower than the level prescribed by the State Bank.

In which, to sell bad debts to VAMC at market prices, in addition to the above minimum conditions, bad debts must also meet:

b) Being able to fully recover money used to buy bad debts; 

c) Secured assets of the bad debts can be put on sale;

d) Loan customer is able to restore debt repayment.

Only in 2017, VAMC bought 31,831 billion dongs of bad debt with special bonds, 3,141 billion dongs of debt at market price, and collected 30,700 billion dongs of bad debt to sell through VAMC.

In addition to restructuring and reselling bad debts, many credit institutions have called for domestic and foreign investment capital to strengthen their financial capacity to handle bad debts. However, in Vietnam, in order to protect the domestic economy, the number of important business lines is limited in the proportion of foreign investors’ capital ownership, and finance – banking is not an exception. Although since early 2014, Vietnam has allowed foreign investors to own capital in Vietnamese credit institutions in the form of buying shares of Vietnamese credit institutions. However, up to now, the capital ownership ratio of foreign investors is still capitalized on capital ownership as follows:[6]:

  1. The holding of a foreign individual shall not exceed 5% of the charter capital of a Vietnamese credit institution.
  1. The holding of a foreign organization shall not exceed 15% of the charter capital of a Vietnamese credit institution except for the strategic investor.
  1. The holding of a foreign strategic investor shall not exceed 20% of the charter capital of a Vietnamese credit institution.
  1. The holding of a foreign investor and the concerned persons of such foreign investor shall not exceed 20% of the charter capital of a Vietnamese credit institution.
  1. Total shareholding level of foreign investors shall not exceed 30% of the charter capital of a Vietnamese commercial bank. Total shareholding level of foreign investors at a Vietnamese non-banking credit institution shall comply with legislation applicable to public companies and listed companies.

2. If to Foreign credit institutions and banks

Under the provisions of Circular 09/2015 / TT-NHNH, credit institutions and foreign bank branches in Vietnam are entitled to sign written agreement on the transfer of the right to claim debts arising from loan operations, the payment on behalf of a guarantee operation, whereby the debt seller transfers ownership of the debt to the debt purchaser and receives payment from the debt purchaser. This debt sale and purchase agreement must be approved by the State Bank of Vietnam, and must meet the following conditions:

Regarding debts, debts purchased and sold must meet the following conditions:[7]

  1. The dossier, related documents and records of the debt to be purchased, and security contract (if any) provided by the debt seller must fully and accurately show the state of the debt in accordance with the law.
  1. There is no written agreement on a ban on debt purchase and sale.
  1. The debt is not used to secure the fulfilment of a civil obligation at the time of debt purchase and sale, except the case where the secured party accepts in writing the debt sale.

Regarding the debt purchaser, Debt purchasers include the following organizations and individuals: [8]

a/ Organizations and individuals being non-residents.

b/ Organizations and individuals being residents, including:

  • Credit institutions and foreign bank branches having obtained the State Bank’s approval of debt purchase activity;
  • Organizations providing debt purchase and sale service (other than credit institutions and foreign bank branches), which fully meet the law-prescribed conditions for the provision of debt purchase and sale service;
  • Other organizations and individuals not providing debt purchase and sale service.

And other conditions for payment currency, debt trading method, debt valuation, etc. as prescribed in Circular 09/2015 / TT-NHNN.

In addition to buying and selling bad debts in the credit system, the securities law also allows the private placement or sale of shares to swap with the issuer’s debts to the creditors. However, in order to swap shares with these debts, the issuer will have to meet the conditions of internal approval, the issuer, etc. in accordance with the securities law.

The structure of buying debt from credit institutions still has many shortcomings in practice. The Vietnamese Government has also piloted the resale of bad debts by bad debt trading organizations and handling bad debts according to the provisions of Resolution 42/2017 / QH14. Still, there are currently no general regulations applicable. Therefore, investors who want to invest in bad debt should pay attention to the purpose of buying bad debt to choose a plan to buy debt and handle debt appropriately.

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

[1] Page 9 of the Treatment on Nonperforming loans https://www.imf.org/external/pubs/ft/bop/2005/05-29.pdf

[2] Paragraph 4 Article 2 of Decision No. 493/2005/QD-NHNN of the State Bank of Vietnam

[3] Article 6, Article 7 of Decision No. 493/2005 / QD-NHNN of the State Bank of Vietnam

[4]Banking magazine number 21/2018 http://tapchinganhang.gov.vn/tinh-hinh-xu-ly-no-xau-tai-viet-nam-qua-cac-giai-doan-cac-van-de-can-quan-tam-va-khuyen-nghi.htm

[5] Article 7,8 Decree 53/2013

[6] Article 7 Decree 01/2014

[7] Article 4 of Circular 09/2015 / TT-NHNN

[8] Paragraph 4 Article 3 of Circular 09/2015 / TT-NHNN

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Q&A: Registering trademark in Vietnam (Part 2)

1. How long for the process of mark registration in Vietnam?

The processing of mark registration in Vietnam shall be conducted within the timelines mentioned below:

  • Formal examination: An application for registration of industrial property shall have its form examined within one (01) month from the filing date. The purpose of this stage is to examine compliance with regulations related to the form of the registration application then evaluate whether this application is valid or not.

  • Publication of application: An application for the mark registration shall be published within two (02) months as from the date such application is accepted as being valid. Subsequently, these applications shall be published in the Official Gazette of Industrial Property.

  • Substantive examination: nine (09) months from the date of publication of the application with the purpose of evaluating of the eligibility for grant of protection titles for subject matter stated in such applications under protection conditions and for determination of the respective scope of protection.

2. How long is the trademark protection period in Vietnam?

A certificate of registered mark shall be valid from the grant date until the end of ten (10) years after the filing date and may be renewed for many consecutive terms, each of ten (10) years.

3. What are the rights of trademark owner?

In accordance with Clause 1 Article 123 Law on Intellectual Property, rights of owners of marks includes:

  • To use or authorize others to use industrial property objects according to the provisions of Law on Intellectual Property.

Use of a mark means the performance of the following acts:

(a) Affixing the protected mark on goods, goods packages, business facilities, means of service provision or transaction documents in business activities;

(b) Circulating, offering, advertising for sale or stocking for sale goods bearing the protected mark;

(c) Importing goods or services bearing the protected mark. 

  • To prevent others from using industrial property objects according to the provisions of Article 125 of this Law;

  • To dispose of industrial property objects according to the provisions of Chapter X of this Law.

4. What is considered an infringed of the trademark rights of the other?

The following acts, if performed without the permission of mark owners, shall be deemed to be infringements of the right to a mark:

 (a) Using signs identical with protected marks for goods or services identical with goods or services on the list registered together with such mark;

 (b) Using signs identical with protected marks for goods or services similar or related to those goods or services on the list registered together with such mark, if such use is likely to cause confusion as to the origin of the goods or services;

 (c) Using signs similar to protected marks for goods or services identical with, similar to or related to goods or services on the list registered together with such mark, if such use is likely to cause confusion as to the origin of the goods or services;

 (d) Using signs identical with, or similar to, well known marks, or signs in the form of translations or transcriptions of well-known marks for any goods or services, including those not identical with, dissimilar or unrelated to goods or services on the lists of those bearing well known marks, if such use is likely to cause confusion as to the origin of the goods or services or misleading impressions as to the relationship between users of such signs and well known mark owner.

5. What can a trademark owner do if his or her trademark has been infringed?

An intellectual property right holder shall have the right to apply the following measures to protect the intellectual property rights of such holder:

 (a) To apply technological measures to prevent acts of infringement of its intellectual property rights;

 (b) To request any organization or individual who commits an act of infringement of the intellectual property rights of the holder to terminate such act, make a public apology or rectification, and pay damages;

 (c) To request the competent State body to deal with acts of infringement of its intellectual property rights in accordance with the provisions of this Law and other relevant laws;

 (d) To initiate a lawsuit at a court or a claim at an arbitration centre to protect the legitimate rights and interests of the holder.

6. Can the trademark be terminated or cancelled after registration?

The validity of a protection title shall be terminated in the following cases:

  • The owner fails to pay the stipulated validity maintenance or extension fee;
  • The owner declares relinquishment of the industrial property rights;
  • The owner no longer exists, or the owner of a certificate of registered mark is no longer engaged in business activities and does not have a lawful heir;
  • The mark has not been used by its owner or the licensee of the owner without justifiable reason for five (5) consecutive years prior to a request for termination of validity, except where use is commenced or resumed at least three (3) months before the request for termination;
  • The owner of a certificate of registered collective mark fails to supervise or ineffectively supervises the implementation of the regulations on use of the collective mark;
  • The owner of a certificate of registered certification mark violates the regulations on use of the certification mark or fails to supervise or ineffectively supervises the implementation of such regulations;

A protection title shall be entirely invalidated in the following cases:

(a) The applicant for registration has neither had nor been assigned the right to register the invention, industrial design, layout design or mark;

(b) The industrial property object failed to satisfy the protection conditions at the time the protection title was granted.

A protection title shall be partly invalidated as to the part which failed to satisfy the protection conditions.

 

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

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Q&A: Registering trademark in Vietnam (Part 1)

1. What is trademark?

Trademark is defined as any sign used to distinguish goods or services of different organizations or individuals.

2. How many types of trademark?

In accordance with the Law on Intellectual Property, trademarks are classified into four groups:

Collective trademark means a mark used to distinguish goods or services of members from those of non-members of an organization which is the owner of such mark.

Certification trademark means a mark which is authorized by its owner to be used by another organization or individual on the latter’s goods or services, for the purpose of certifying the origin, raw materials, materials, mode of manufacture of goods or manner of provision of services, quality, accuracy, safety or other characteristics of goods or services bearing the mark.

Integrated mark means identical or similar marks registered by the same entity and intended for use on products or services which are of the same type or similar types or interrelated.

Well-known mark means a mark widely known by consumers throughout the Vietnamese territory.

3. Some objects ineligible for protection as trademark?

The following signs shall be ineligible for protection as marks:

  1. Signs identical with or confusingly similar to national flags or national emblems.

  2. Signs identical with or confusingly similar to emblems, flags, armorial bearings, abbreviated names or full names of Vietnamese State bodies, political organizations, socio-political organizations, socio- politico-professional organizations, social organizations or socio-professional organizations or with international organizations, unless permitted by such bodies or organizations.

  3. Signs identical with or confusingly similar to real names, aliases, pseudonyms or images of leaders, national heroes or famous personalities of Vietnam or foreign countries.

  4. Signs identical with or confusingly similar to certification seals, check seals or warranty seals of international organizations which require that their signs must not be used, unless such seals are registered as certification marks by such organizations.

  5. Signs which cause misunderstanding or confusion or which deceive consumers as to the origin, properties, use, quality, value or other characteristics of goods or services.

4. How is a trademark considered to be distinctive?

A mark shall be deemed to be distinctive if it consists of one or more easily noticeable and memorable elements, or of many elements forming an easily noticeable and memorable combination, and does not fall into the cases stipulated in clause 2 of Article 74 Law on Intellectual Property.

5. Who has a right to registering trademark?

In accordance with Law on Intellectual Property, the entities having the right to register marks include:

– Organizations and individuals shall have the right to register marks to be used for goods such organizations or individuals produce or for services such organizations or individuals provide.

– Any organizations or individuals lawfully engaged in commercial activities shall have the right to register a mark for a product which the latter puts onto the market but which was manufactured by others, provided that the manufacturer does not use such mark for a product and does not object to such registration.

– Lawfully established collective organizations shall have the right to register collective marks to be used by the members of the collective organization pursuant to the regulations of the collective organization on use of collective marks. For signs indicating geographical origins of goods or services, an organization with the right to register means a local collective organization of [other] organizations or individuals engaged in production or trading in the relevant locality.

– Organizations with the function of controlling and certifying quality, properties, origin or other relevant criteria of goods or services shall have the right to register certification marks, provided that such organizations are not engaged in production or trading of such goods or services.

– Two or more organizations or individuals shall have the right to jointly register a mark in order to become its co-owners on the following conditions:

 (a) Such mark is used in the names of all co-owners or used for goods or services which are produced or traded with the participation of all co-owners;

 (b) The use of such mark does not cause confusion to consumers as to the origin of goods or services.

6. What is the “First to file principle” ?

First to file principle” is applied to cope with cases in which there are more than one protection registration application for the same or similar subject matter of industrial property rights. This principle is prescribed particularly at Article 90 of Law on Intellectual Property to protect the rights and interests of the earlier applicant with the same subject matter of industrial property rights. To be more detailed: 

  1. In case many applications are filed for registration of the same patents or similar patents, or for registration of industrial designs identical with or insignificantly different from another, the protection title may only be granted to the valid application with the earliest priority or filing date among applications satisfying all the conditions for the grant of a protection title.

  2. In case there are many applications filed by different persons for registration of identical or confusingly similar marks for identical or similar products or services, or in case there are many applications filed by the same person for registration of identical marks for identical products or services, the protection title may only be granted for the mark in the valid application with the earliest priority or filing date among applications satisfying all the conditions for the grant of a protection title.

  3. In case there are many registration applications specified in Clauses 1 and 2 of this Article and satisfying all the conditions for the grant of a protection title and having the same earliest priority or filing date, the protection title may only be granted for the object of a single application out of these applications under an agreement of all applicants. Without such agreement, all relevant objects of these applications will be refused for the grant of a protection title.

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

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