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Apolat Legal’s teams have advised on numerous market-shaping transactions across an array of industries in the energy sector, e-commerce, technology, retails, logistic, real estate,…
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We apply our values to all our activities world-wide. They describe our culture and personality both internally and externally, the way we work and what we stand for.
On August 13th , 2021, Apolat Legal is honored to become a cooperation unit in the online training session ‘’Startup and Brand protection’’ organized by Startup Wheel – designed as an Accelerator Program for international businesses to expand business in Southeast Asia. Every year, Startup Wheel attracts more than 2,000 startups from 20 countries on 5 continents.
Lawyer Pham Thi Thoa – Founding Lawyer of Apolat Legal shared with Top 60 Vietnamese track – Startup Wheel 2021 about knowledge and case studies around brand protection, relationships with founding team and investors, notes on shares when working with co-founder and investor.
Apolat Legal hopes that by sharing experiences, Startup Wheel Vietnam candidates will be able to confidently share their projects without fear of being “afraid of stealing ideas/business models” while still “recording” a “score” with the Jury Council.
On August 21st , 2021, The Faculty of Law, University of Economics and Finance collaborated with the Integrity Law Club – ILC to organize a webinar on the topic “Intellectual property rights in business operations”. Apolat Legal is honored to be invited to be the speaker of the webinar, Lawyer Pham Thi Thoa – Founding Lawyer of Apolat Legal accompanies the program.
In the discussion, the lawyer provided students with 3 issues: an overview of the enterprise’s intellectual property, intellectual property rights in business operations, the knowledge and skills needed to practice in the field of intellectual property law.
Lawyer Thoa also guided UEFers to courses to further their expertise at the end of the program.
Apolat Legal hopes that by sharing, students will gain more information and enthusiasm for future vocations.
Webinar series “Intellectual property of enterprises – identification, exploitation, and protection”admin
Apolat Legal collaborated with the Saigon High-Tech Park Incubation Center in July 2021 to host a series of webinars on “Intellectual property of enterprises – identification, exploitation, and protection.” The series consists of three sessions designed to update information and assist small and medium-sized businesses in identifying, exploiting, and protecting intellectual property.
At sessions on July 3, July 9, and July 10, 2021, Lawyer Pham Thi Thoa and Mr. Tran Chau Hoai Han provided an overview of intellectual property types of enterprises, some options for monetizing intellectual property, and detailed and specific sharing on intellectual property protection methods, law enforcement practices to protect intellectual property rights as well as case studies and direct interaction with speakers about some real-life situations that enterprises face.
At the end of the program was a Q&A session to answer questions from enterprises along with speakers.
Apolat Legal is pleased to be a part of the program and hopes to have the opportunity to cooperate in the next programs.
Along with the investment increase into industrial parks, the transfer of land use rights in industrial parks and relevant legal issues are more and more interested. However, unlike other real estates, when transferring land-use rights in industrial parks, enterprises need to pay attention to the following issues:
1. Are your land use rights in industrial parks allowed to be transferred?
The statutory provisions on real estate permit enterprises who lease land in industrial parks to conduct the transaction of transferring land-use rights in the industrial park in the following case:
- Point a, Clause 3, Article 149 and Point a, Clause 2, Article 174 of the 2013 Land Law (“the Land Law”) regulated that in case of subleasing land in industrial parks from the company investing and trading infrastructures of industrial parks in the form of subleasing land with one-off rental payment for the entire lease period, enterprises shall have the right to transfer land use rights and land-attached assets under their ownership.
- Point a Clause 2, Article 185 of the Land Law also stipulates that foreign-invested enterprises subleasing land with one-off rental payment for the entire lease period shall have the rights and obligations stated in Article 174 of the Land Law, including the right to transfer land use rights and land-attached assets under their ownership.
Therefore, among the forms of land lease in industrial parks under Clause 3 Article 149 of the Land Law (including subleasing land with one-off rental payment for the entire lease period and subleasing land with annual rental payment), only organizations/individuals who sublease land with one-off rental payment for the entire lease period have the right to transfer the leased land use right.
2. Does the transferee have the right to lease land in the industrial park?
According to the provisions of Clause 3 Article 149 of the Land Law, subjects who are entitled to sublease land from the company investing and trading infrastructures of industrial parks include:
- Economic organizations (being defined to include enterprises, cooperatives and other economic organizations as prescribed by civil law, excepting foreign-invested enterprises);
- Households, individuals, Vietnamese residing abroad;
- Foreign-invested enterprises.
The regulation on land users in Article 5 of the Land Law details the subjects allowed to allocate land, lease land by the State, recognize the land use rights, and receive the transfer of land use rights nut not refer to foreign individuals and organizations. In other words, Vietnam’s land law does not allow foreign individuals and organizations to lease land in industrial parks directly. So, when transferring land-use rights in industrial parks, enterprises also need to pay attention that the transferee must be eligible to sublease land in the industrial park as mentioned above.
3. Conditions for the transfer of land use rights under the land sublease contract with the unit that invests in the construction and commercial operation of infrastructure
As mentioned above, in the case of leasing land with one-off rental payment for the entire lease period, enterprises will have the right to transfer land use rights; this is a legal right and cannot be inhibited. However, in some cases, the land sublease contract between the enterprise and the company investing and trading infrastructures of industrial parks stipulate some procedures require enterprises must perform before carrying out the transfer, such as informing the transfer in writing before performing, liquidating of the old land lease contract, etc. Therefore, enterprises should pay attention to double-check the land sublease contract for restrictions or procedures that need to be executed before officially performing the transfer.
In addition, the law related to the transfer of land use rights does not have separate regulations on the procedures to transfer ownership, benefits and utilities associated with the land in the industrial park from the old enterprise to the new one. Depending on each case, the company investing and trading infrastructures of industrial parks will provide a different procedure guideline for transferring rights. Therefore, enterprises should pay attention and work with the infrastructure development unit for guidance on appropriate transfer procedures to avoid cases that after the legal transfer, the infrastructure development unit does not agree to transfer the lease contract or the facilities in industrial parks to the transferee.
The above issues are just general notes; depending on the specific transfer case, the transferors and transferees will have to check problems related to real estate more carefully and thoroughly. Making a list of to-do works and issues to pay attention to before conducting a real estate transfer or any transaction will help enterprises restrict most mistakes and risks before implementing.
In recent years, as a result of the strong technological development, e-commerce services have quickly become popular and attracted a huge amount of consumers due to their convenience. To conduct e-commerce transactions, consumers must provide their personal information to service providers or their partners. The collected personal information will be stored and managed by businesses, on the one hand, to meet the demands of customers in transactions. On the other hand, it will be used to take care of and provide after-sales service to customers through discounts, promotions, or advertising. Businesses can easily reach their old customers through available customer data mining, improve and adjust their services properly, thereby expand their market share. This personal information when accessed (like above mention) can become valuable data, therefore, all businesses desire to access, collect, use and exploit the customers’ personal information. However, not most businesses are aware of the regulations to collect and use customers’ personal information legally.
In the scope of the article, we will highlight some legal regulations that businesses should note and comply with when collecting and using customer information, especially personal information collected through cyberspace.
So, what types of information are included in personal information?
Personal information is information contributing to identifying a particular individual, including his/her name, age, home address, phone number, medical information, account number, information on personal payment transactions, and other information that the individual wishes to keep confidential.
Requirements when collecting customer information
Collecting personal information is to create a database that collects the personal information of many consumers who are customers or potential customers of the businesses. Currently, Vietnamese law, in general, and Law on Protection of consumer’s rights, in particular, really appreciate protecting customer information. Accordingly, when customers conduct transactions, use goods and services, they will be guaranteed the safety and confidentiality of their information. Businesses are not allowed to provide customers’ personal information to third parties, except in case there is a request from a competent authority or the consent of that customer.
In order to collect customer information for business purposes, businesses need to take the following responsibilities:
- Notify clearly and openly the customer of the purpose of the collection and use of customer information before such activities being done;
- Use the information in conformity with the purpose informed to customers, and with the consent by the customers;
- Ensure safety, accuracy, completeness during collection, use, and transfer of customer information;
- Update or adjust by themselves or help customers to update and adjust as the information is found to be incorrect;
- Not provide, share, spread the customer information collected, assessed, controlled by businesses to third parties, except in case getting the consent of the customer or complying with the law.
Thus, in order to collect and use customer information legally and avoid possible risks in the future, businesses need to develop and publish an Information Security Policy for customers’ personal information. Accordingly, this policy should clearly stipulate the following contents:
- Purpose(s) of collection of personal information;
- Scope of information use;
- Duration of information storage;
- Persons or organizations that may access such information;
- Address of the information collection and management unit, indicating how consumers can ask about the collection and processing of information relevant to them;
- Method and tools for consumers to access and modify their personal data on the e-commerce system of the information collection unit. ;
The Information Security Policy needs to be specifically communicated to customers by the businesses before or at the time the businesses collect information. Businesses may post/publicize the Information Security Policy at an easy-to-spot position on these websites, email, message, or other methods as agreed between the two parties.
In addition, businesses need to ensure that there is a mechanism to ask for permission from customers when collecting their information through online functions on their websites. Businesses also need to have their own mechanism so that customers can choose to allow or not allow the use of their information in the following cases:
- Sharing, disclosure or transfer of information to a third party;
- Use of personal information for sending advertisements, product introductions and other commercial information.
On the other hand, in some special cases, businesses are entitled to collect information from customers without their prior consent as follows:
- Collection of personal information already published on e-commerce websites;
- Collection of personal information for concluding or performing goods and service purchase and sale contracts;
- Collection of personal information for calculating prices or charges for use of information, products and services online.
After collecting and storing customers’ information, businesses shall assure safety and security of the information, and prevent the following acts: (i) hacking or illegally accessing information; (ii) Illegally using information; (iii) Illegally altering or destroying information. Business shall formulate mechanisms for receiving and settling customer complaints about the use of personal information for improper purposes or beyond the notified scope. In case an information system is hacked, posing a risk of loss of customers’ information, businesses shall notify the incident to a functional authority within 24 hours after detecting it.
Businesses also need to have a plan to change customer information when there is a request to change, update, adjust or cancel by doing it themselves or providing tools for customers to self-check, update and adjust their personal information. In addition, businesses must destroy stored personal information when the purpose of use has been fulfilled or the storage period expires and must notify the customer unless otherwise provided for by law.
In case the businesses fail to comply with the above regulations, businesses may be administratively sanctioned, and depending on the particular violation, the administrative sanction may be up to VND 60,000,000. If the relevant information is customers’ confidential information, the fine can be up to VND 80,000,000. In addition, customers have the right to claim damages due to violations in the provision of personal information.
The above are a number of legal issues related to the collection and use of customers’ personal information that businesses need to understand and comply with, in order to properly perform, limit errors that lead to unfortunate consequences.
1. Practical settlement of IP rights disputes at the People’s Courts
According to the statistics of the Supreme People’s Court from July 1, 2006 (after the Law on Intellectual Property was issued) until June 22, 2009, the whole accepted disputes over intellectual property rights of the Court sector were only 108. (of which the majority is copyright disputes with 90 cases; disputes over industrial property rights accounts for 10 cases; disputes over contracts to use works account for 05 cases), disputes over technology transfer contracts accounted for 3 cases).
Thus, it can be seen that, compared with the actual disputes arising, the number of cases related to intellectual property rights accepted and tried by the courts is quite limited. The biggest cause is a series of problems and inadequacies in both the settlement law and the adjudication process, including:
– Long settlement time;
– Lack of effective injunctive relief;
– Difficulty in determining damage caused by IP right infringement;
– The court’s capacity to resolve disputes over IP rights has not met the requirements.
2. The necessity of intellectual property court
As mentioned above, the current difficulties, limitations and inadequacies both in terms of procedures and expertise are showing that Vietnam needs a specialized IP Court. This specialized court should be regulated similarly to other specialized courts such as the Economic Court, the Labor Court, etc., in order to ensure consistency in the entire judicial system of Vietnam.
The establishment of a specialized IP Court will consist of such benefits as follows:
2.1 Facilitating the development of a source of specialized intellectual property judges
Laws governing IP rights are often quite picky for researchers, and the subjects of IP rights protected by such laws are more complex. Therefore, it is necessary to appoint judges with specialized IP knowledge in specialized IP courts. This will lead to higher quality IP litigation and a more consistent and highly qualified pool of IP judges. Although the creation of a specialized IP Court does not guarantee that procedural limitations in IP disputes will be resolved in the short term, specialized IP courts will enhance dispute resolution capabilities by dividing cases to a specific number of specialized judges.
2.2 The issuance of judgments and decisions of the People’s Courts will be more effective
Specialized Courts in general and IP in particular often make decisions more quickly and efficiently, because judges in specialized courts are often required to have depth knowledge, that they can understand the procedures and techniques related to IP rights cases. This saves time and allows court resources to be used more efficiently. With the strengthening of judicial capacity in effectively and efficiently resolving IP rights cases, litigants’ trust in litigation procedure at the People’s Court when there is an IP dispute will also increase.
2.3 Creating consistency in the judgments and decisions of the People’s Courts in the same IP dispute
The establishment of a specialized Court increases the consistency in the judgment of the People’s Court in general on a particular issue. The unification of transferring IP rights cases to specialized courts helps to reduce the possibility of conflicts and contradictions in understanding and handling. Consistency in litigation is important because it reduces uncertainty and increases predictability about the outcome of the case. This can also reduce litigation, as the course of action becomes clearer to potential litigants when they intend to start a groundless case. At the same time, businesses will also be more confident that their investments in technology and IP assets will be protected, allowing them to better plan business strategies and promote economic growth.