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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.
Currently, it is very common for Vietnamese citizens to marry a husband/wife with foreign nationality. One of the top concerns for couples whose spouse is a foreigner is co-ownership of a house in Vietnam.
1. Foreign ownership of houses in Vietnam
Article 159 of the Law on housing stipulates entities, and foreign individuals that are allowed to own houses in Vietnam, including:
- Foreign entities who invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law;
- Foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign-invested funds and branches of foreign banks operating in Vietnam (hereinafter referred to as foreign organization);
- Foreign individuals who are allowed to enter Vietnam.
Accordingly, foreign individuals may own houses in Vietnam in the following forms:
- Invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law;
- Buy, rent and purchase, receive, or inherit commercial housing including apartments and separate houses in the project for housing construction, except for areas under management relating to national defense and security as prescribed in regulations of the Government.
Specifically, the areas where foreign organizations and individuals that are allowed to own houses are guided by Article 75 of Decree No. 99/2015/ND-CP as follows:
- Foreign entities may only own houses (including apartments and detached houses) of commercial housing construction projects, except for those in areas having national defense and security requirements prescribed by Vietnam’s regulations of law.
- The Ministry of National Defense and the Ministry of Public Security have the responsibility to specify the areas having national defense and security requirements in each province and send a written notification to the People’s Committee of the province as the basis for directing the provincial Department of Construction to compile a list of commercial housing construction projects whose houses must not be owned by foreign entities.
Thus, foreigners are only allowed to own houses (including apartments and separate houses) in the project on investment and construction of commercial housing, except for defense and security areas according to Vietnamese law and cannot buy a house in Vietnam in their name.
2. Foreigners named on the Certificate of Land Use Rights, ownership of houses and assets attached to land, with Vietnamese spouses
A husband is a foreigner who marries a Vietnamese citizen, according to the law on marriage and family, property formed during period of marriage is considered common property. Therefore, in order to buy a house in Vietnam, in addition to meeting the conditions of Vietnamese people buying houses in Vietnam, they must also meet the conditions that foreigners are allowed to buy and own houses in Vietnam. However, a foreign husband who is not eligible to own a separate house (except for separate houses in the project on investment and construction of commercial housing), is not allowed to have his name on the certificate of land use rights, ownership of houses and properties attached to land.
Article 33 of the Law on Marriage and Family stipulates the common property of husband and wife as follows:
“1. Common property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property and other lawful incomes in the marriage period; except the case prescribed in Clause 1, Article 40 of this Law; property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property.
The land-use rights obtained by a spouse after marriage shall be common property of husband and wife, unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property.
2. Common property of husband and wife shall be under integrated common ownership and used to meet family needs and perform common obligations of husband and wife.
3. When exists no ground to prove that property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property”.
From the above-mentioned legal bases, it can be concluded that a couple in which one is a foreigner are jointly owned and named on the Certificate of Land Use Rights, ownership of houses and properties attached to land when the following conditions are fully satisfied:
- A wife/husband is a foreigner who is eligible to own a house specified in Clause 1, Article 159 of the Law on Housing 2014;
- Houses in areas where foreign organizations and individuals are entitled to own ownership according to the provisions of Article 75 of Decree No. 99/2015/ND-CP;
- Houses are property formed during marriage period, generated by husband and wife from income arising from labor, production and business activities, yields, separate property and other lawful income during the marriage period.
In addition to the above conditions, the joint acceptance of houses transfer by husband and wife, including one being a foreigner, must satisfy the form specified in Clause 2, Article 76 of Decree 99/2015/ND-CP:
- Buying, renting to buy houses from (i) investors in housing construction projects, (ii) foreign organizations and individuals; or
- Accepting inheritance or donation of houses from households, individuals and organizations.
Although the state has provided a legal frame for foreigners to be able to name on the land use right certificate together with Vietnamese spouses. But in practice, the transfer of houses of the above subjects is not simple during the registration process. The reason is that the competent authorities have not yet determined which areas and areas do not allow foreign organizations and individuals to own houses. Therefore, foreign individuals receiving a house transfer in the above case should consider it before proceeding with the transfer procedures.
One of the issues most concerned by the seller when transferring their real property is the declaration and payment of personal income tax. However, the transfer of real property does not always generate the obligation to pay personal income tax. So, in which cases will the transfer of real property be exempted from tax and what is the order and procedures for tax exemption application? Within the scope of this article, the author will focus on answering the above questions.
1. Two cases are exempted from tax when transferring real property
a. Transfer transactions are made between people who are related by marriage, blood and nurturing
The transfer of real property (including future houses, future construction works in accordance with the law on real estate business) is exempt from personal income tax if the transactions are made between.
- Marriage relation: as between husband and wife; fathers-in-law or mothers-in-law and daughters-in-law or sons-in-law;
- Blood relation: as between biological father, biological mother and their biological child; grandparents and grandchildren, and as between biological siblings;
- Nurturing relation: adoptive father, adoptive mother and their adopted child.
In addition, in case of division of real property (including future houses, future construction works in accordance with the law on real estate business) being the common property of husband and wife as agreed or declared by the court upon divorce, is also exempt from tax.
b. Transfer transactions of the sole real property
Income obtained from the transfer of houses, residential land use rights and properties attached to residential land in case the transferred real estate is the sole property of the individual is eligible for personal income tax exemption when satisfying the following conditions:
- Owning only one residential house or the right to use a residential land lot (including the case of having houses or construction works attached to that land parcel) at the time of transfer.
In case of transferring houses with common ownership, residential land with common use rights, only individuals who do not have the right to own houses or land use rights in other places are exempt from tax; individuals who jointly own house, residential land use rights but also have other house, and land use rights are not exempt from tax.
In case the husband and wife jointly own houses, residential land use rights, which are also the sole property of them, but wife or husband still has separate houses and residential land. For this caser, when transferring the houses or residential land under the common use right, wife or husband who does not have houses or separate residential land are exempt from tax and the husband or wife owning their own house or residential land is not exempt from tax.
- Having the right to own house, right to use residential land up to the time of transfer for at least 183 days.
The time for determining the ownership of residential house, and land use right shall be the issuance date of the Certificate of Land Use Right and Ownership of House and Other Assets on The Land. Except for the case of replacement or reissuance, the time for determination of land use right and house ownership shall be calculated according to the issuance time of the Certificate of Land Use Right and Ownership of House and Other Assets on The Land before the replacement or reissuance.
- Transfer of entire houses and residential land.
In case an individual has the right or share ownership of houses, land use rights , and only transfers part of it, he/she will not be subject to tax exemption on such transaction.
2. Dossier and procedures for tax exemption declaration
a. Components of the dossier:
- Personal income tax declaration form No. 03/BĐS-TNCN No. 03/BĐS-TNCN enclosed with Circular No. 92/2015/TT-BTC.
- A photocopy of the Certificate of Land Use Right, proof of Ownership of House and Other Assets on The Land and the individual signing is committed to taking responsibility for such copies. When transferring the sale and purchase agreement of houses or construction works to be formed in the future, a photocopy of the sale and purchase agreement of houses and construction works to be formed in the future signed with the level I and level II project owner or the project owner’s real estate exchange, or a photocopy of the capital contribution contract for the right to buy the house, apartment signed before 08/08/2010 shall be submitted.
- Real estate transfer contract. When transferring the sale and purchase agreement of houses or construction works to be formed in the future , a notarized contract for transferring the sale and purchase agreement of houses or construction works to be formed in the future; or the notarized contract for transferring the capital contribution contract for the right to buy the house, apartment shall be submitted. When transferring the sale and purchase agreement of houses or construction works to be formed in the future from the second time onwards, the previous sale and purchase contract shall be presented. In case of real estate authorization, the real estate authorization contract shall be submitted.
- Documents being the basis for determination of being the subject to tax exemption.
For transfer transactions that are made between people being related by marriage, blood and nurturing, the tax exemption dossiers for each specific case are as follows:
|For the case of real estate transfer between husband and wife||A copy of the household registration book or a copy of the marriage certificate or the court’s decision on divorce or remarriage (in case of division of house due to divorce or consolidation of ownership rights due to remarriage).|
|For the case of real estate transfer between biological father, biological mother and their biological child.||Copy of household registration book (if having the same household registration book) or copy of the birth certificate.
In case the child was born out of wedlock, a copy of the competent agency’s decision on recognition of father, mother and child is required.
|For the case of real estate transfer between adoptive father, adoptive mother and adopted child||A copy of the household registration book (if having the same household registration book) or a copy of the decision on recognition of child adoption issued by a competent agency.|
|For the case of real estate transfer between paternal grandfather, paternal grandmother and paternal grandson.||A copy of the paternal grandson’s birth certificate and a copy of the grandson’s father’s birth certificate; or a copy of the household registration book showing the relationship between paternal grandfather, paternal grandmother and paternal grandchild.|
|For the case of real estate transfer between maternal grandfather, maternal grandmother, and maternal grandchild.||A copy of the maternal grandchild’s birth certificate and a copy of the grandchild’s mother’s birth certificate; or a copy of the household registration book showing the relationship between maternal grandfather, maternal grandmother, and maternal grandchild.|
|For the case of real estate transfer between biological siblings.||A copy of the household registration book or a copy of the birth certificate of the transferor and the transferee showing the relationship with the same parents, or the same father or mother, or other papers proving the blood relationship.|
|For the case of real estate transfer between fathers-in-law or mothers-in-law and daughters-in-law or sons-in-law.||Copy of household registration book clearly stating the relationship between father-in-law, mother-in-law and daughter-in-law; between father-in-law, mother-in-law and son-in-law; or a copy of the marriage certificate and birth certificate of the husband or wife as a basis for determining the relationship between the transferor being father-in-law, mother-in-law and daughter-in-law, or father-in-law, mother-in-law and son-in-law.|
Note: In case the transferor does not have a birth certificate or household registration book, it is required to have a confirmation of the commune-level People’s Committee about the relationship between the transferor and the transferee as a basis for determining income being tax exemption.
For the transfer of sole real estate:
On the declaration form No. 03/BĐS -TNCN, the individual self-declares tax-exempt income and clearly states that he or she is exempt from personal income tax in accordance with the regulations on sole houses, the right to use sole residential land and is responsible before the Law on the declaration of having only one house, residential land use right in Vietnam.
b. Place for submission of tax declaration dossiers
The taxpayer shall submit tax declaration documents and real estate transfer documents to the single-window system or district-level tax department where the real estate is located. The documents may be submitted to the land registration office where the real estate is located if the single-window system is not adopted in the localities.
If the individual transfers houses formed in the future, construction works formed in the future, tax shall be declared and paid to the district-level tax department where such construction is located, or a collector authorized by tax authorities.
Over the last few years, it can be seen that even the pandemic, the online game industry is one of the sectors that has been growing in leaps and bounds. A successful online game does not only mean that it attracts a large number of users purchasing or paying for the game, but it also means that the game’s owner will have numerous ways to monetize the game in all aspects, such as selling toys, accessories, garment or clothing, and many other items using the character from the game.
Additionally, a game company owning a successful game can also be profitable from licensing the rights to produce game-inspired TV series, advertising campaigns or other online content in social media networks. Thus, protecting author rights, or intellectual property in general, of an online game, is key and crucial for the game’s owner to benefit from its investment put into the development of a game. Obtaining author right protection becomes even more important because of the borderless nature of online game distribution and development.
Which elements of the game can be protected?
Simply speaking, author’s right regime protects the original expression of the creative works. In Viet Nam, like most countries, creative work can be automatically protected by author’s right regime once the work has been created in a certain form and met the standard of originality. With respect to the gaming industry, elements that can be protected copyrighted by the author rights regime may include:
- Game characters;
- Gameplay or stories of the game;
- Sounds and Music;
- Artwork and Visual Design;
- Code or computer program.
Each above element shall require different specific standards to be protected under author right regime. When the said elements meet the condition to be author right protected, the right holder has the exclusive right to, amongst other things, prevent others from reproducing the game, derivative works of the game, distributing copies of the game, displaying the copyrighted protected elements of the game publicly, …
Who is the real owner of the author right to the game?
Concerning the monetization of the online games, the most important thing is that who is the legal owner of the author rights of the game, whether this is the original creator of the game or the game company investing money in the game production (in the simple scenario). In the world of intellectual property laws, there is a quite simple principle so-called “work for hire” that assumes the game company (generally, the organizations or employers) will hold the author rights to the game if original creator (i.e. coder, designer, …) is the employee of the game company or the game production is funded by the game company. This principle is a famous principle from the US copyright law.
However, applying the above principle to practical cases is not easy that much under the Vietnamese intellectual property laws. According to the laws of Vietnam, there is no exact principle of “work for hire” as seen under some common law jurisdictions like US. Although intellectual property laws of Vietnam still have the rule that has the similar approach, this does not apply to the moral rights of the authors or creators under Article 19 of the Vietnam Law on intellectual property.
In practice, it is common that many coders, designers are working for different game studios as independent contractors or freelancers without a detailed contract. In these cases, the party claiming ownership of the game must incur the burden of proof. This process has never been an easy path, in particular to digital products as online games.
Author right protection by voluntary registration
Like many countries, under Vietnam intellectual property laws, the author rights protection applies as soon as the work is fixed under a certain form without the need for registration. However, in consideration of the potential disputes on ownership to the game and burden of proof of claimant that is usually complicated and subjective, the common advice is that the owner of the game should voluntarily register the author’s right protection for its right to the game. The registration will provide the presumption that the party whose name is on the certificate is the holder of author rights of the game. This thus makes it easier to prove the ownership of the author’s rights and handle the intellectual property rights infringement.
Furthermore, since Vietnam is a signatory member of the Berne Convention on global protection of author rights of works, when the game (or any of its components) is successfully registered in Vietnam, such registered game will be also protected in 179 members countries of Berne Convention.
Quick steps to strengthen the protection of author right of online games:
- Ensure that you evidence the process of building the game to prove the author right ownership if necessary;
- Identify what intellectual property rights you have and consider to register for protecting (compulsory and voluntary);
- Enter into contracts clearly stating that who has the ownership of author rights with all parties related to the game development process;
- Make sure any trade secrets are protected with NDAs between all parties;
- Monitor the market to early discover the potential intellectual property infringements.