How to Establish a Company in Vietnam?

Foreign investors may invest in the form of 100% capital to establish a limited liability company, joint stock company, partnership company or other forms in investment in Vietnam.

Foreign investors that invest in Vietnam for the first time must have investment projects and fill in investment registration or examination procedures at state agencies in charge of investment in order to be granted investment registration certificates. Investment certificates shall concurrently be business registration certificates.  Company with 100% foreign capital has founded and operated from the date of issuance of the investment certificate.

A project dossier for establishing a company in Vietnam shall comprise:

-Registration/Request for issuance of Investment Certificate;

-A report on financial capability of the investor;

-Draft of the company’s charter;

-List of members of company;

-Copy of the people’s identity card, passport or other lawful personal certification, for individual members;

-Copy of the establishment decision, business registration certificate or other equivalent document, for member organizations;

-Copies of the authorization document, the people’s identity card, passport or other lawful personal certification, for authorized representatives.

-Copies of the business registration certificates of the foreign member organizations must be authenticated within three months before the date of submission of the business registration dossier by agencies where such organizations are registered;

-Written authorization of the investor in case investor is organization and valid copy of the lawful personal certification of the authorized representative. Documents in foreign languages must be translated into Vietnamese, notarized and legalized;

-The joint-venture contract or Business Cooperation Contract (BCC);

-Other documents required by Vietnam law.

The establishment of a company in Vietnam would take from 30 days.  The extra time might be needed in case the investment area is conditional or the State government needs to examine the investment project.  Minimum capital, special licenses or other conditions might be required in certain investment projects.

ANT Lawyers – A Law firm in Vietnam has law offices in Hanoi, Ho Chi Minh City and Da Nang.  The lawyers at each law offices in Vietnam have consistently made valuable and important contributions to our profession through the cases we handled on daily basis to facilitate business transaction or represented our clients to access justice.

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If I bought an original work from an artist can I copyright it since the original work and character now belongs to me?

First off, you can’t copyright it because it’s already copyrighted. Under modern law, copyright exists the moment a work is set down in a permanent form. It is possible for the owner of the copyright to then register that copyright, but that is not what creates the copyright.

Copyright in Vietnam 

Second, buying a physical version of a work does not give you the copyright. It doesn’t matter whether that version is the original, or even if it’s the only version. You still don’t get the copyright. The only way you can get the copyright is to buy the copyright. In order to transfer the copyright to you, the owner must do so explicitly in writing, and it must be signed. The only thing you get by buying a physical version of a work is that particular physical version.

Source: Quora

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Authorized Representative of the Company Under New Law on Enterprises

In order to raise the standard of business environment in Vietnam, Law on Enterprises 2015 reduced many administrative procedures of establishing and running a business, including the representative authorization of the member or shareholder of the company.

One of the distinguished amendments: authorized representative of the member or shareholder which is legal entity is not required to inform the licensing authority (i.e. Department of Planning and Investment).

Law on Enterprises 2015 provides that the appointment of an authorized representative must be made in written, notified to the Company and take valid from the receipt date of the Company while under Law on Enterprises 2005, the same must be registered at the licensing office.

In addition, any restrictions by the authorizing member on his/her authorized representative in the performance as member in the Members’ Council or shareholder in the Shareholders’ Meeting shall not enforce against the third party.

ANT Lawyers is a law firm in Vietnam with international standards, recognized by IFLR1000 on Financial and Corporate practice. The firm provides a wide range of legal services, including M&A, corporate establishment, business advisory, tax advisory, dispute resolution for multinational and domestic clients.

This publication is designed to provide updated information of legal matters, and does not constitute professional advice.

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When and How to Register Trademark to Protect IP Rights

Considering trademark registration activities, the subject holder must comply with certain conditions to fulfill its trademark registration rights.

According to Article 13.1 Law on Intellectual Property amended in 2009:

-Organizations and individuals may register marks to be used for goods they produce or services they provide.

Register trademark in Vietnam

-Organizations and individuals that conduct lawful commercial activities may register marks for products they are marketing but produced by others, provided that the producers neither use such marks for their products nor object to such registration.

-Lawfully established collective organizations may register collective marks to be used by their members under regulations on use of collective marks. For signs indicating geographical origins of goods or services, organizations that may register them are collective organizations of organizations or individuals engaged in production or trading in relevant localities. For other geographical names or marks indicating geographical origins of local specialties of Vietnam, the registration must be permitted by competent state agencies.

-Organizations with the function of controlling and certifying the quality, properties, origin or other relevant criteria of goods or services may register certification marks, provided that they are not engaged in the production or trading of these goods or services. For other geographical names or marks indicating geographical origins of local specialties of Vietnam, the registration thereof must be permitted by a competent state agency.

-Two or more organizations or individuals may jointly register a mark in order to become its co-owners on the following conditions: i) This 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; ii) The use of this mark causes no confusion to consumers as to the origin of goods or services.

If the subject falls into one of the cases mentioned above, they will have the right to register the mark at the National Office of Intellectual Property. After the subject condition has been met, consideration should be given to the condition that a mark can be protected as a trademark. In particular (i) It is a visible mark in the form of letters, words, drawings or images including holograms, or a combination thereof, represented in one or more colors; (ii) It is capable of distinctive goods or services of the mark owner from those of other subjects.

However, there are some exceptions even when the mark satisfies those two conditions. For example, marks identical with or confusingly similar to national flags or national emblems; or marks 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 shall not be protected as a trademark.

In order to register for protection of a trademark, the registrant should pay attention to the subject matter and the conditions for the trademark to be protected in order to avoid being refused at the registration authority because of the failure to meet the conditions for the subject or the conditions for protection.

IP Attorney at ANT Lawyers – a Law Firm in Vietnam, a licensed IP agent in Vietnam shall be providing the advice to client to help the clients evaluate and file registration for trademark, patent, copyright and other IP related services

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Benefits of Representative Offices in Vietnam

Following the trend of international economic integration, foreigners have been attracted by the benefits of doing business in Vietnam through setting up representative office, setting up company, acquiring shares in Vietnam enterprise through M&A activity.

At the initial stage, foreign entity would try to research market, undertake due diligence on its clients, buyers, clients, or other business partners therefore many will be interested in establishing a representative office in Vietnam.

The foundation of representative office of foreign entity in Vietnam is governed under Vietnam Commercial Law 2005 and Decree 07/2016 / ND-CP dated 25 May, 2016.

Advantages of establishment of a representative office:

Establishing a representative office is a tool to research the market. For the first time, foreign enterprises entering the Vietnam market, the primary purpose is understanding the market, undertaking research on clients, or due diligence on their business partners, distributors, monitoring the performance of buyers and being familiar with the Vietnam market. The establishment of representative office in Vietnam turns out to be the most effective option both of cost and time.

The representative office in Vietnam is an effective tool to promote commercial activity, seeking partners, and increasing opportunities to expand business market in Vietnam.

Representative office form in Vietnam has allowed foreign entity to receive benefits such as recruiting Vietnamese employees, foreign employees working in offices whom could apply for work permit in Vietnam, then temporary residence card in Vietnam, opening bank accounts in foreign currencies or Vietnam dong at commercial banks, and to be allowed to use those accounts solely for their operations.

According to the laws of Vietnam, the establishment of representative offices does not require the investor’s capital. Instead, setting up a company in Vietnam, an economic organization requires capital contribution as per business plan, ranging from USD 50 k to million USD. Sometime, if the investment fall under conditional areas, setting up company seems more challenging.  This relieves the foreign trader from advancing too much to achieve the purpose of expanding the market before the business plan has been proved to materialize.

Further, the establishment of representative office follows more simple procedures for licensing in Vietnam than establishing entity in Vietnam. Accordingly, the process has been taken less time which is more favorable for foreign traders.

Challenges of the establishment of representative office in Vietnam?

Vietnam law provides that, in order to establish a representative office in Vietnam, foreign traders have to prove the fulfillment of the financial responsibility in their country. In practice, the foreign entity is expected to provide audited financial statements. In some countries, the financial audited report is not available according to laws. The Vietnam Department of Trade and Commerce, which state authority would grand representative office operation certificate would require documents showing the fulfillment of tax liabilities or financial obligations of the last fiscal year, or equivalent documents as proof of existence and operation of the foreign trader issued or certified by competent authorities where such foreign trader is established. This provision may initially be difficult. However, if the foreign trader has been established and operated legally in their country, the implementation of this provision is not a major obstacle.

As a large potential market such a Vietnam, as well as the current rapid reform in administrative procedures, Vietnam Government has been more flexible to encourage foreign traders doing business in Vietnam, hence the establishment of representative offices is an optimal method to consider for market research, trade promotion and a stepping stone to penetrate the Vietnam market successfully.

The commercial law and other business laws in Vietnam are frequently changing toward attracting more quality investment projects into Vietnam.  ANT Lawyers – A Law firm in Vietnam has law offices in Hanoi, Ho Chi Minh City and Da Nang.  The lawyers at each law offices in Vietnam have consistently made valuable and important contributions to our profession through the cases we handled on daily basis to facilitate business transaction or represented our clients to access justice.

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What is the complete procedure to apply for a trademark opposition?

You can file a Trademark opposition against any Trademark application published in the Trademark Journal during the 3 months period when it is kept open for opposition from the general public.

 Trademark Opposition in Vietnam 

You can file a Trademark opposition on your own if you have the knowledge of applicable laws, know under what provisions the Trademark needs to be opposed, can draft the opposition petition on your own and know what legal documents are required for the same.

Coming to the procedure of filing a Trademark opposition, a trademark opposition is filed by a third party to prevent the proprietor from getting the Trademark registered if it is similar to his/her own or is identical to the one already used by the party.

A person may file an opposition to a Trademark to prevent the brand from illicitly gaining from his/her established brand name and avoid confusion among the consumers.

A trademark opposition is filed in the form of a Notice of Opposition that lays down the grounds on which the application is challenged. It is attached with the evidence that proves why the Trademark application flouts any legal norms or violates an existing Trademark.

Documents Required To File A Trademark Opposition

The copy of Trademark to be opposed.

The reason for opposition.

The Notice of Opposition i.e. the application opposing the mark published in the journal is drafted (it is suggested that you hire a lawyer for the same to avoid any omissions or errors). The Notice of Opposition is sent to the Registrar first, who will examine it and then send it to the applicant.

The Trademark applicant gets 2 months(1+1) to file a counter-statement against the opposition received.

ANT Lawyers -  A Law firm in Vietnam is supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property rights in Vietnam.  We have specialized in the preparation and registration of patents, trademarks and designs for our clients.

We assist our clients in all steps of the prosecution phase of IP management.

Source; Quora

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The Note of New Provisions of Law on Planning Decree No.37/2019/ND-CP

The Law on Planning 2017 has been effective from January 01^st, 2019. On May 07^th, 2019, the Decree no. 37/2019/ND-CP details some articles of Law on planning is effective. This Decree details some articles of Law on Planning including the Article 15,17,19,24,25,26,27,30,40,41 and 49 of Law on Planning.

This Decree applies to organizations and individuals involved in the formulation, appraisal, decision or approval, announcement, implementation, assessment and adjustment of the planning under the national planning system and other relevant organizations and individuals.

Therefore, the time duration for formulation of the national comprehensive planning, national marine spatial planning and national land use planning is not over 30 months, since the day approving the planning task. In the case the national planning system and province planning system, the time duration is 24 months.

This Decree details the contents of planning need to be published on the mass media: A summary of the planning contents must be published at least 01 time on the first page of a printed newspaper or on the homepage of the online newspaper for at least 30 days; The planning contents must be announced on news programs and television channels of national radio and television stations or provincial television stations.

The announcement of planning contents is also carried out through the following forms: model display, planning maps; conferences and workshops to disseminate planning contents and plan implementation plans; publications such as books, atlas, introductory videos…

The Decree specifies the professional capacity of this planning consultancy organization not belonging to state agencies. Pursuant to the Law on Planning 2017, the power to organize planning formulation includes: The Government shall organize formulation of the national comprehensive planning, national marine spatial planning and national land use planning; The Prime Minister shall organize formulation of regional planning; Ministry and ministerial authorities shall organize formulation of national sector planning; The People’s Committees of provinces shall organize formulation of provincial planning. However, the planning organization, the Ministries and Ministerial authorities and local governments shall select a planning consultancy in accordance with regulations of the Law on Bidding. The planning consultancy shall have a legal status and satisfy qualification requirements applied to its assigned tasks in accordance with regulations of the Government is regulated at Article 4 Decree 37/2019/ND-CP includes the conditions as follow:

·         Planning consultancy organizations must have at least 01 consultant, who is the planning project manager and must have a university degree or higher in the discipline related to the planning to be established to meet the prescribed conditions and at least 05 consultants presided over the planning component or planning contents for the national sector planning and provincial planning to meet the prescribed conditions. Consultancy organizations that formulate planning components or planning contents for national and provincial planning must have at least one consultant meeting the prescribed conditions.

·         The Consultants who are managers of planning projects must have a university degree or higher in the discipline related to the planning, and have established at least 01 planning of the same planning level that needs to be elaborated or directly participated in set up at least 02 plans of the same planning level.

·         In case the national master plan is first established in Vietnam, the consultant who is the planning project manager must have a university degree or higher in the discipline related to the planning needed to be established and the owner has established at least 02 regional plans or planning for the inter-provincial river basin.

·         Consultants who lead the formulation of planning components or planning contents for national and provincial planning sectors must have a university degree or higher in a discipline related to the planning component or planning contents. It is necessary to set up and directly participate in setting up at least 01 planning of the same planning level.

·         If the national master plan is first established in Vietnam, the consultant who presides over the planning component or the planning content for the national sector planning must have a university degree or higher in the specialized field. relating to the planning component or the planning content to be prepared and presided over at least 01 planning or directly involved in setting up at least 02 regional or planning for the scope of the inter-river basin the provincial.

Organizations that meet the above requirements may conduct planning consultancy for competent state agencies for planning. In Chapter II of Decree 37/2019/ND-CP stipulating the issue of planning, in this chapter, the responsibilities of planning agencies, for each planning, will specify the responsibilities Specific agencies such as: Responsibilities of agencies that formulate national master plans, national maritime space planning, regional planning; Responsibilities of agencies organizing the formulation of planning components and agencies making planning components… prescribe the time limits, tasks and contents of planning, but the planning contents must comply with orientations and points and development objectives of socio-economic space, regional space, social and technical infrastructure… according to regulations, create uniform consistency and ensure sustainable development objectives.

The Decree details about the information system and the national database about planning at Chapter V of this Decree, includes the contents about information and database as follow:

The information, database of the information system and national database about planning and information, the database is digitized, linked, integrated with each other, linked to the national geographic database and appraised in accordance with the law.

The scale of implementing the construction of national geographic database is determined by district administrative units; use VN-2000 reference frame and coordinate system for all types of information, map database.

Information and database collected to build a national planning information and database system include:

·         Database of national planning documents, regional planning, provincial planning, specialized technical planning, special administrative – economic unit planning, urban planning and planning rural areas have been approved and stored according to Article 44 of the Law on Planning;

·         Specialized database managed by Ministries, Ministerial authorities, People’s Committees of provinces and cities under the central government, including national statistical database and national statistical indicators system, provincial, district and commune levels; database on water resources; database on geology and minerals; environmental database; database on meteorology and hydrology; database of marine and island environmental resources; database on climate change; land statistics and inventory database; database of land use planning and plans; information and databases related to basic land surveys; database on technical infrastructure systems; database on social infrastructure systems; database on construction; database on urban systems and rural population points; database on housing and real estate market; database on national defense and security; relevant measurement and mapping databases;

·         National geographic database is standardized and updated regularly;

·         Information and databases on other planning.

The Decree stipulating the planning contents must be announced on the mass media: notices on national radio and television news programs for national planning and regional planning or provincial radio and television stations for provincial plans on summarizing the contents of decisions or approving planning and lists of projects prioritized for investment in the planning period.

Planning law and construction law have a close relationship. An important principle of planning activities is to ensure stability, avoid disturbance to business and production activities of enterprises and people’s lives. Decree 37 is expected to help clarifying issues, reducing overlapping in relevant legal provisions.

ANT Lawyers attorneys, a law firm in Vietnam with offices in Hanoi, Ho Chi Minh City and Da Nang regularly monitor legal changes to update customers regularly.

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