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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.

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We in the next decade is to be the truly and reliable business law firm for middle market with a commitment to integrity, understanding and innovation. This will be a stepping-stone for the future leading the legal market in Vietnam.

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NEWS & LEGAL UPDATES

[Legal Updates] Letter of quick legal updates, September, 2020

1/ Ministry of Industry and Trade has just issued Circular No. 21/2020/TT-BCT dated September 09th, 2020 regulating the procedure of granting license for electricity activities 

Circular No. 21/2020/TT-BCT regulating the order and procedures for granting of electricity activities license, the duration of electricity activities license in the fields of work design consultancy, power generation, electricity distribution, electricity wholesaling and electricity retail. According to this Circular, the following cases shall be exmepted from electricity activities license:

  • The generation of electricity is for the purpose of self-consuming without selling electricity to any other organizations or individuals; 
  • The generation of electricity with an installed capacity of not exceeding 01 MW to sell to other organizations or individuals; 
  • Electricity traders in rural, mountainous or island regions purchase electricity with a capacity of not exceeding 50 kVA from electricity distributors for supplying electricity directly to consumers in such rural, mountainous or island regions;
  • Electricity activities are performed to serve the national electrical load dispatch and management of electricity market. 

For cases requiring electricity activity licenses, the maximum validity in the electricity activity licenses is prescribed as follows: 

No.

 

Electricity activities

 

Validity

 

1 Electricity consultancy 05 years 
2 Electricity generation  
a) Power plants that are on the list of large-scale power plants which have special importance in socio-economic, national defense and security aspects approved by the Prime Minister  20 years
b) Power plants that are not on the list of large-scale power plants which have special importance in socio-economic, national defense and security aspects approved by the Prime Minister  10 years
3 Electricity transmission 20 years 
4 Electricity distribution  10 years 
5 Electricity wholesaling, electricity retailing  10 years 

 

Power to issue electricity activities license:  

  • The Ministry of Industry and Trade shall issue the electricity operating license intended for electricity transmission and generation by large-scale power plants on the list of large-scale power plants of critical importance in respect of society, economy, national defense and security approved by the Prime Minister; 
  • The Electricity Regulatory Authority shall issue the electricity operating license intended for electricity distribution, electricity wholesaling, electricity retail, electrical consulting services and electricity generation by power plants with a capacity of at least 03 MW other than those are issued by the Ministry of Industry and Trade; 
  • Provincial-level People’s Committee shall issue and revoke or authorize the Department of Industry and Trade of that province to issue electricity licenses in the following sectors: 
    • Electricity generation by a power plant that has a capacity of less than 03 MW and is located in the province;
    • Electricity distribution with a voltage up to 35 kV in the province;
    • Electricity retailing with a voltage up to 0.4 kV in the province;
    • Electrical consulting services, including: (i) Consulting services provided by an enterprise of which the registration is made at the province on the investment and construction of transmission lines and electrical substations with a voltage up to 35 kV; and (ii) Consulting services provided by an enterprise of which the registration is made at the province on the supervision of construction of transmission lines and electrical substations with a voltage up to 35 kV.

Circular No. 21/2020/TT-BCT comes into effect on October 26th, 2020.

2/ The Government agreed with the proposal of the Ministry of Natural Resources and Environment to resolve difficulties for production and business in the context of the Covid-19 pandemic 

Resolution No.129/NQ-NP dated September 11th, 2020, the Government agreed with the proposal of the Ministry of Natural Resources and Environment and the Government Office on solving difficulties for production and business in the context of pandemic Covid-19. The details are as follow:

  • To permit extending the time of completion of the installation of automatic and continuous wastewater and gas monitoring systems specified in Clauses 20 and 23, Article 3 of Decree No. 40/2019/ND-CP until December 31st, 2021. 

  • To permit extending the validity of the License for hazardous waste treatment (issued by the Ministry of Natural Resources and Environment to the enterprise) in the cases specified in Clause 39, Article 3 of Decree No. 40/2019/ND-CP to December 31st, 2021, and at the same time not required to repeat the approved environmental impact assessment (EIA) report if the location is not changed or capacity is not increased in accordance with Article 20 of the Law on Environment Protection 2014. 
  • To permit extending the validity of the Certification of eligibility for environmental protection in import of scrap for use as raw production materials in the cases specified in Clause 39, Article 3 of Decree No. 40/2019/ND-CP to December 31st, 2021, and at the same time not required to repeat the EIA report if the location is not changed or capacity is not increased in accordance with Article 20 of the Law on Environment Protection 2014. 

The Ministry of Natural Resources and Environment is responsible for the implementation.

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[Legal Updates] Updating some new supplements on investment registration regulations under Law on Investment 2020

1/ Ministry of Construction has just issued an official letter No. 4308/BXD-HĐXD on management the investment and construction of condotel, officetel, resort villas, shophouse projects 

In recent years, to meet the needs of the real estate market, new types of real estate such as accommodation/tourism apartments, offices combined with accommodation, resort/tourism villas, and shophouses have arisen. Along with the management of construction investment in accordance with the current law, new legal regulations are also being completed by ministries to adjust the specific factors of these new real estate types, specifically: 

  • The Ministry of Culture, Sports and Tourism issued Decision No.3720/QD-BVHTTDL dated October 28, 2019, promulgating the Regulation on management and business of tourist apartments and tourist villas. 
  • The Ministry of Natural Resources and Environment has issued document No.703/BTNMT-TCQLĐĐ dated February 14, 2020, guiding the land use regime and certification of non-housing ownership. 
  • The Ministry of Construction has issued document No.276/BXD-QLN dated January 20, 2020, to the People’s Committees of centrally-affiliated cities and provinces on the management of investment, construction, and trading of tourist apartments and villas travel; proposing the implementation of investment and construction management, issuance of a certificate of land use rights, ownership of houses and land-attached assets in accordance with current law, ensuring compliance with the plan, which the state agencies have approved and cautiously consider the conversion of functions and purposes of commercial and service works into housing. In addition, the Ministry of Construction has also issued national technical regulations for each of these types of real estate. Furthermore, the Ministry of Construction has also drafted for the Ministry of Science and Technology to announce national standards to propose general design requirements for these types of constructions. 

However, in the process of investing, constructing, and operating the real estate projects mentioned above, there are still several issues that still exist and have not been effectively resolved, for instance: construction planning projects have been identified the function of accommodation but have not been calculated specific population; shortcomings, problems in the operation, management and use of the building with many owners, users, operation and exploitation; granting ownership papers, converting the functions, using purposes. 

To improve state management efficiency and overcome outstanding problems, the Ministry of Construction requested the People’s Committees of provinces and centrally-run cities to direct in construction management and implementation of administrative procedures of the above real estate project, which should consider the following contents: 

(i) When evaluating and approving the subdivision planning, detailed construction planning, it is necessary to ensure compliance with the current system of standards and technical regulations, clarify the size of the construction floor area, the number of bases, population target.

(ii) When deciding on the investment policy, it is necessary to ensure the consistency of the investment purpose, land use purpose with the function of the work, and the actual situation in the locality. 

(iii) Consider the issuance of new legal procedures to permit construction investment (approval of planning, the decision on the policy of investment projects). 

(iv) When carrying out project appraisal, construction design, construction licensing, and checking and acceptance; it is necessary to carefully check and review legal bases on construction planning, investment policy, evaluating the compliance with the system of technical standards and regulations, especially newly issued standards and techniques. Contacting local state authorities on construction for population information. Notifying the results of appraisal and inspection of the pre-acceptance test to the state management agencies in charge of local construction for management during project implementation. 

2/ Updating some new supplements on investment registration regulations under Law on Investment 2020 

(i) At Clause 1 Article 22 Investment Law 2020 stipulates foreign investors are not required to apply for an investment registration certificate in case of establishment of a small and medium-sized innovative startup and investment fund creative industry under the provisions of the law on supporting small and medium-sized enterprises.

The creative startup medium and small enterprises: According to regulation at clause 2 article 3 Law on assistance for small and medium-sized enterprises 2017, The creative startup medium and small enterprises are SMEs that is established to implement its business ideas based on the exploitation of intellectual property, technology and new business models and is able to grow quickly. Accordingly, to become a creative startup medium and small enterprises have to fulfil the conditions:

  • Be SMEs. According to regulations at Article 4 law provision of assistance for small and medium-sized enterprises 201,  An SME is either a micro-enterprise, small enterprise or medium-sized enterprise having the annual average number of employees who participate in social insurance is not greater than 200 and satisfying one of the following criteria:
    • The total capital is not greater than 100 billion dong;
    • The enterprise’s revenue of the previous year is not greater than 300 billion dong.
  • Enterprises established to express ideas on the basis of exploiting new intellectual property, technology, and business models;
  • Capable of rapid growth.

Creative startup fund:  According to regulation clause 2 article 2 Decree 38/2018/ND-CP Creative startup fund is funded that established from private investor capital to carry out creative startup investment. The investment in the establishment of a creative startup investment fund can be referred to the provisions of Decree 38/2018 / ND-CP dated March 11, 2018, detailing investment for small and medium-sized enterprises creative startup.

(ii) Making investment by contributing capital, purchasing shares or purchasing capital contributions

Law on Investment 2014 generally stipulates that Investors shall carry out the procedures for registration of capital contribution, share purchasing or capital contributions purchasing when contributing capital, purchasing shares or purchasing capital contributions to economic organizations operating in business line with conditions applied to foreign investors or contributing capital, purchasing shares or purchasing capital contributions leads to foreign investors holding 51% or more of the charter capital of economic organizations.

Law on Investment 2020 stipulates more specifically cases that foreign investors carry out the procedures for registration of capital contribution, share purchasing or capital contributions purchasing when:

  • The capital contribution or purchase of shares or stakes increases the ownership ratio by foreign investors in a business entity conducting business in the business lines allowed in the market with conditions applied to foreign investors; or
  • The capital contribution or purchase of shares or stakes results in a foreign investor or business entity specified in Points a, b and c Clause 1 Article 23 of this Law holding over 50% of the charter capital of the economic organization in the following cases: The charter capital ownership ratio by the foreign investor is increased from less than or equal to 50% to over 50%; the charter capital ownership by the foreign investor is increased while such foreign investor is holding over 50% of the charter capital of the business entity; or
  • The foreign investor that contributes capital, purchases shares or stakes of a business entity has a certificate of rights to use land on an island or in a border or coastal commune; in a coastal commune; in another area that affects national defence and security.  

Currently, Law on Investment 2020 is becoming effective soon (January 01, 2021), so, to carry out the procedures for registration of capital contribution, share purchasing or capital contributions purchasing to economic organizations, foreign investors need Decrees with specific guidances and forms.

Download Legal Updates as a PDF here.

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[News] Apolat Legal officially became a member of the International Association for the Protection of Intellectual Property

In August 2020, Apolat Legal officially became a member of the International Association for the Protection of Intellectual Property (AIPPI).

AIPPI is the world’s leading non-profit association dedicated to the development and improvement of laws for the protection of intellectual property. It is a non-profit organization based in Switzerland with around 9000 members worldwide from more than 125 countries.

In Vietnam, the group has operated under the auspices of the Vietnam Intellectual Property Association in many IP-related activities such as training, consultation and criticism, domestic and international cooperation.

One of the most important activities of AIPPI in Vietnam is to focus on assisting the enterprises in building and developing intellectual property assets which is also an purpose that Apolat Legal aims at.

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ARTICLES

Considering the best endeavors in contractual performance

A contract is an agreement between two or more parties, commonly in writing, which sets forth terms and conditions of a deal. The significance of a written contract is undeniable, especially for high-value transactions, because it is considered to make a fair and concrete base for the performance for all parties named under the contract. Accordingly, a contract is always supposed to govern acts of parties in as many events that may happen as possible, and contractual wording is also in need of being precise and meaningful. This explains why some companies are willing to pay a significant amount to lawyers for drafting a contract.

However, it is all agreed that executing an agreement, in reality, is sometimes different from expectations of parties at the time they sign it. This is because the occurrence of objective events and changes in the capacity of parties in performing a contract are unable to certainly and completely set out. There are obligations which are quantifiable or of which the results can be explicitly determined so that parties may easily firmly request each other an exact performance. Meanwhile, there are some obligations, especially under force majeure events, of which consequences are barely possible to be measured. Thus, a demand for specific performance with fixed results for such obligations at the time entering into a contract is viewed as unreasonable. In such cases, a party may only require obliged parties to, within the best endeavours, seek solutions for their responsibilities. 

In practice, it is common to see a contract with provisions under which parties make a promise to perform their obligations within the best efforts. To a majority of people, this kind of term has nothing to be considered and negotiated. Perhaps, they do not feel it is necessary to be concerned, or it is just simply that the trust on their partners is strong enough to not be bothered about how best efforts should be assessed. In contrast, some people do take the words “best endeavors” or “best efforts” into serious consideration, especially to those who involve in a considerable value deal as well as highly risky. Even being aware of these words are qualitative, they still want to clarify criteria or scope to deem the performance of other parties under a contract truly reaches to the best efforts in reality.

From the linguistic perspective, the best effort can be understood in the way thatrequires a promisor to do everything in its power to accomplish the obligation, including spending unlimited amounts of money, time, and effort, all to the promisor’s detriment[1]. Yet, applying this way of understanding into legal practice is alike making a death wish. In terms of legal terminology, there is no specific definition or the most exact interpretation of  “best efforts” or “best endeavors”. In fact, it is impractical, if not to say impossible, to frame a defined benchmark to assess the best effort of contractual performance of parties.

It may be agreeable that measuring the best endeavors in contractual performance should be conducted on the ground of objective facts of, for instance, a company at the time its obligations which demand best endeavors occur. Specifically, to accurately measure the level of obligation performance, factors such as finance, human resource, experience and outstanding obligations to other entities are highly suggested to be taken into account. Of note, a company is usually obligated by numerous duties and responsibilities to many parties like State’s authorities (mostly tax agencies), employees, clients and commercial partners. Furthermore, under some circumstances, a company must fulfil its obligations in a priority arrangement prescribed by laws or custom which are widely recognized and implemented.

“Reasonable efforts” or “Best efforts”? 

In addition to the “best efforts”, the term “reasonable efforts” can usually be found in contracts. Linguistically speaking, the word “best” and “reasonable” are apparently different in meaning. As quoted above, the best-effort standard may bear the meaning of doing “everything in its power” and to the extent of allthe promisor’s detriment; while that of reasonable efforts may be interpreted as doing things with rational consideration of acceptable damages. So, basically, those words cannot be changeable in daily using.

In terms of a contract, the implementation of “best efforts” and “reasonable efforts”, however, remains controversial in some different jurisdictions. For years U.S. courts have used the phrases “reasonable efforts” and “best efforts” interchangeably within and between opinions. Where only one of the terms is used, the best-efforts obligation frequently appears indistinguishable from a reasonable-efforts obligation.[2]. In the U.K, approach to the expressions of “best efforts” and “reasonable efforts” has been considerably adapted after years of argument. The standards of best endeavours have been commonly assumed as a far more stringent obligation than that of reasonable endeavours, as the reasonable efforts has been widely considered to require contractual parties to fulfil their obligations with commercial factors taken into account of consideration. Though, it is now accepted that there seems to be very little to distinguish between the best- and reasonable-endeavours standards in the U.K.[3]. Canadian legal practitioners, in contrast, hold a significant differentiation between best efforts and reasonable efforts in their mindset. Justice Dorgan determined that the standard of “best efforts” was an onerous standard exemplified by the phrase “no stone unturned”, albeit within the overall context and purpose of the contract itself, and is more onerous than “reasonable efforts”.[4] Meanwhile, the standard of “reasonable endeavors” is normally viewed to obligate a party to perform its duties in a less burdensome manner. For instance, in Armstrong v. Langley (Township) case, the court’s finding states that Reasonable effort’ do not require … all possible steps … [but rather] reasonable steps. Reasonable efforts does not mean best efforts which import a higher obligation on persons to accomplish the required task.[5]

Conclusion: Considering the issue from the perspective of legal practice in Vietnam 

Generally, in Vietnam, terms which have promises to make the “best efforts” do not usually draw the attention of relevant parties in a contract. In fact, the parties do not commonly negotiate how efforts of a party shall be viewed as the best and, accordingly, obligations required to be done in best endeavors are measured by good faith. 

In Vietnam is there has not been any precedent established to be referred to in case of a contractual dispute regarding the implementation of the “best efforts”. Yet, the parties may constrain the possibility of disputes which may occur in regard to this matter by discussing specific standards of best efforts, or about a course of action which is expected to be performed. Otherwise, if there is no benchmark agreed by parties before the execution of a contract, best- or reasonable-effort standards should be considered on the ground of factual objective events for the sake of rationality and fairness.  

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] https://www.jonesday.com/en/insights/2007/07/best-efforts-and-endeavourscase-analysis-and-practical-guidance-under-us-and-uk-law

[2] See the first footnote

[3] See the first footnote

[4] https://www.lexology.com/library/detail.aspx?g=6a4c20dc-594d-4756-b710-7a2dc213e8c0

[5] See the fourth footnote.

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Cross ownership between parent-subsidiary companies in Vietnam

How to determine the relationship of parent-subsidiary companies

According to the current provisions of the Law on Enterprises No. 68/2014/QH13 (“Law on Enterprises 2014”),[1] a company is considered as the parent company of another company if it falls into one of the following cases:

  • It owns more than fifty (50) per cent of the charter capital or the total number of ordinary shares of such [another] company;
  • It has the right to directly or indirectly make decisions on appointment of the majority or all members of the Board of Management, the director or general director of such [another] company;
  • It has the right to make decisions on amendment of and addition to the charter of such [another] company. 

Cross ownership concept and requirements of the law of Vietnam

The concept of cross ownership between two enterprises is specified in Decree No. 96/2015/ND-CP guiding the implementation of the Law on Enterprises 2014,[2] namely: “Cross ownership is the simultaneous situation of two enterprises owning each other’s contributed capital or shares.”

It is worth noting that the Law on Enterprises 2014[3] requires that: “Subsidiary companies are not permitted to invest in contribution of capital to or purchase of shares of the parent company. Subsidiary companies of the same parent company are not permitted to jointly contribute capital or purchase shares in order to have mutual cross ownership.” 

Penalties for the occurrence of cross ownership between the parent company and its subsidiaries[4]

In the case of (i) a subsidiary investing, contributing capital, or buying shares of the parent company; and/or (ii) subsidiaries of the same parent company contribute capital or buy shares to cross-own each other, these companies may be subject to administrative penalties of up to VND 20 million and be forced to remedy by divestment or withdrawal of shares from the parent company or other subsidiaries.

In case subsidiaries of the same parent company having at least 65% state capital contributed capital to establish a company, these companies may be subject to administrative sanctions of up to VND 20 million and be forced to remedy by divestment from established companies.

Options to eliminate cross ownership

Option 1: The parent company will transfer its shares/capital contribution in the subsidiary to a third party (the “Buyer”), so that the parent company is no longer considered as the parent company of the subsidiary. In addition, this option is similar to the option for subsidiaries to restructure their charter capital so that the ownership ratio of the parent company will be diluted under the level that the parent company is considered to be the parent company of subsidiaries; or

Option 2: The subsidiaries will transfer the shares issued by the parent company that these subsidiaries hold to the Buyer so that the subsidiaries will no longer own the shares of the parent company (the procedure is similar with the below procedures which the parent company should do).

The capital transfer process consists of three following steps:           

Step 1: Approving the transfer of capital contribution and disclosure of information 

> For the parent company

Accordingly, depending on the provisions of the Charter of the parent company and depending on the value of the capital transfer transaction in relation to the total value of assets according to the latest financial statements of the parent company, such proposed capital transfer transaction must be approved by the General Meeting of Shareholders or the Board of Management of the parent company.

> For the Buyer

If the Buyer is an enterprise, depending on the type of business, the Buyer’s charter and the value of capital transfer transaction in relation to the Buyer’s total asset value in the latest financial statement, there must be a resolution of the General Meeting of Shareholders or the Board of Management or Members’ Council or a decision of the Chairman of the company to approve the transfer of contributed capital in the subsidiary company from the parent company.

Step 2: Signing the capital transfer contract 

  • The capital transfer contract between the parent company and the Buyer must be signed by the legal representative of the parent company and the Buyer.[5] In case the person who signs the capital transfer contract is not the legal representative of the parent company and the Buyer, a power of attorney of the legal representative for the signatory is required.
  • The capital transfer contract between the parent company and the Buyer must contain at least the following basic contents: information of the parent company and the Buyer, the number and value of contributed capital in the transferred subsidiary company; method and time of payment, rights and obligations of the parties, contract termination, dispute resolution, etc.
  • The parent company is responsible for determining and declaring corporate income tax from the transfer of capital in the subsidiary to the tax authority.

Step 3: Registration of capital transfer and post-licensing procedures

  • After the parent company transfers its contributed capital in the subsidiary company to the Buyer, the subsidiary must carry out the procedures for registration of amendment of the Enterprise Registration Certificate (“ERC”)/notice of changing enterprise information with the local Department of Planning and Investment.
  • Post-licensing procedures:

After the subsidiary is issued an amended ERC recording the transfer of capital contribution, the subsidiary company must carry out the following licensing procedures:

– Making a register of members/shareholders; issue the certificate of capital contribution to the Buyer; and

– Report the change on the National Business Registration Portal within 30 days from the date of issuance of the amended ERC.

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] Article 189.2 Law on Enterprises 2014

[2] Article 16.2 Decree No. 96/2015/ND-CP

[3] Article 189.(2) Law on Enterprises 2014

[4] Article 39 Decree No. 50/2016/ND-CP

[5] Article 86.3 and Article 144 of the Civil Code

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Management of intellectual property of enterprises (part 2)

Part 2: METHODS OF MANAGEMENT OF INTELLECTUAL PROPERTY OF ENTERPRISES?

Following the content of identifying intellectual properties from the perspective of managing the corporate, in the second part of the “MANAGEMENT OF INTELLECTUAL PROPERTY OF ENTERPRISES” articles, Apolat Legal will provide some methods that should and must be used to manage the intellectual property of the enterprise, both under the law and in the practice of a business, so that you can refer and apply depending on real conditions business.

As mentioned in part one, in the current economic era, intellectual properties account for an enormous proportion in the value structure of an enterprise. However, identifying intellectual property is only the first step in the process of managing intellectual properties, acquiring an intellectual property in the enterprise without managing it is like putting assets in a house without a lock, anyone can take it, use it for their own purpose, cause damage to the business/property owner, and also reduce the value of the intellectual property, reduce investment attraction.

The process of creating an intellectual property, as analyzed, usually goes through the stages: Potential knowledge of individuals -> is shaping tangible intellectual products (documents, machines, regulations) process, products …) -> if the assets meet the conditions prescribed by law will become intellectual property. The management of an enterprise’s intellectual property is a process of identifying and classifying its intellectual products, thereby applying appropriate management/protection measures to ensure ownership for that product before going to market. Depending on the nature of the intellectual product, especially the value of such intellectual products in business activities, businesses may consider applying the following management measures:

1. Application of internal management measures

The source of intellectual properties of a business comes mainly from individuals working at such enterprise, in case the business itself does not have clear internal regulations on the transfer of ownership of the intellectual products, disputes on ownership will easily arise if the employees create products which have high economic value in the course of work that do not stem from the requirements of the enterprise.

Internal management measures of an enterprise include:

  • Signing non-disclosure agreements, transferring intellectual property rights with employees and partners;
  • Paying attention to the terms of confidentiality, transfer of intellectual property rights in contracts related to intellectual products;
  • Promulgating regulations on recognizing innovations, information security and transfers of internal intellectual property rights of enterprises.

2. Registration of protection of industrial property objects

Intellectual property rights, as prescribed by law, are the rights of organizations and individuals to intellectual propertyies, including copyright and rights related to copyright, industrial property rights and rights to the type of tree. In particular, the protection subjects of copyright includes literary, artistic and scientific works; Subjects of rights-related to copyright include performances, phonograms, video recordings, broadcasts, encrypted program-carrying satellite signals. Subjects of industrial property rights include inventions, industrial designs, semiconductor integrated circuit layout designs, trade secrets, trademarks, trade names and geographical indications. Subjects of rights to plant varieties are propagating materials and harvested materials.

In the above types of intellectual property rights:

  • Copyrights and industrial property rights to trade names and trade secrets are rights automatically generated based on satisfying the conditions prescribed by intellectual property law.

Namely: Copyrights arise from when a work is created and fixed in a material form; Industrial property rights to a trade-name are established based on the lawful use of it; Industrial property rights to business secrets are established on the basis of legally obtained business secrets and the confidentiality of those business secrets.

  • Industrial property rights to inventions, industrial designs, layout designs, trademarks and rights to plant varieties are established based on a decision of granting the protection title of a competent state agency according to the registration procedures prescribed in the current Intellectual Property Law.

Therefore, for the above-mentioned subjects, enterprises should pay attention to meeting the lawful conditions, making registration with competent state agencies to generate intellectual property rights according to regulations.

In addition to applying the above-mentioned methods of intellectual property management, enterprises should also consider setting up an intellectual property management system with the following major stages:

  1. Classification of intellectual products;
  2. Establishment of ownership rights to intellectual property.
  3. Exploring the value of intellectual assets.
  4. Handling infringement

Depending on the importance of intellectual property, especially the impact of such intellectual products in the business activities, the enterprise may consider prioritizing to apply for protection to the state agencies, sign confidentiality agreements, transfer rights, as a basis for future exploitation.

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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