Dialogue With Theme “Administrative Reform: A Key Role in EVFTA Implementation”

On June 30^th, in Hanoi, European Chamber of Commerce in Vietnam (“EuroCham”) and Prime Minister’s Advisory Council for Administrative Procedure Reform held the Dialogue.  With theme “Administrative Reform: A Key Rolein EVFTA Implementation”, the Dialogue is to discuss administrative reform ahead of the implementation of the EU-Vietnam Free Trade Agreement (“EVFTA”) which  enters into force on August 1^st. The Dialogue brought together many ministries and sectors; EuroCham; diplomatic missions; journalists; numerous representatives of the business community, … to discuss how administrative reform can help to unlock the full potential of the EVFTA. Specially, the event also featured the launch of EuroCham’s 12^th Whitebook publication.

The successful implementation of EVFTA in 2020 is very important.  In order for EVFTA to come into effect, Vietnamese competent authorities, Europe and enterprises needed to continue implementing solutions to ensure the effectiveness of implementation, including the establishment of EVFTA Business Council for reviewing the challenges in the implementation process and coordinating. The more important thing is Vietnam’s efforts to implement administrative reforms, creating an open investment environment for enterprises.

At the event, 17 difficulty groups of European enterprises have been stated (pharmaceutical, medical equipment, intellectual property, labor, law enforcement, food, agriculture, automotive industry, motorbike, digital technology, tax and transfer pricing, tourism-hotel …) related to field of state management and settlement of Ministries, sectors and authorities … Most of the reflections and recommendations of the enterprises are from the practice of production and business activities.

In fact, Vietnam has made many administrative procedure reforms, from processing dossiers and  documents, handling manual works to processing dossier and documents, solving works on electronic, non-paper environment; continue to cut administrative procedures, business conditions, products and goods subject to specialized inspection. The resolution of administrative procedures under the “One-door” and “One-stop-shop” mechanism has received many positive feedbacks.

EuroCham has developed clear recommendations, orientations and analysis to complete the legal framework in the context of EVFTA implementation in a very wide range. They are issues related to case law, competition, commercial mediation activities, dialogues at the Court, the right to appeal, the validity of arbitral awards, commercial mediation, antitrust, public-private partnership (PPP), real estate, “conditional” business.

One of the remarkable proposals given is the proposal to reduce many taxes this year. Specifically, EuroCham proposed reducing by 50% for corporate income tax, reducing by 50% of personal income tax, reducing by 50% for VAT and reducing by 50% compulsory social security contributions. Remarkably, relating to reducing by 50% of registration tax-fee of domestic assembled cars, Whitebook requests “the removal of a discriminatory taxation reduction applying only to locally assembled vehicles, and recommend applying it to all automotive assemblers, importers and dealers of new vehicles”. In addition to above proposals, EuroCham also requests more stimulus packages that could bolster the economy after Covid-19.

Regarding to Business Confidence Index BCI, inspite of reduction, EuroCham representative predicted this index will recover soon. Regarding mergers and acquisitions, M&A is also expected to continue to grow more quickly in 2020, especially in the context of the EVFTA Agreement ratified.

The EuroCham’s Whitebook publication, the annual report of EuroCham, is also launched which summarises the important issues for the business activities of 17 sector committees under EuroCham, together with recommendations that the Vietnamese Government can implement to improve the domestic business environment and enhance trade and investment with the EU.

Whitebook 2020 of Trade & Investment issues implemented by EuroCham, developed recommendations to complete the legal framework and policies to implement the EVFTA Agreement.

The publication of the Whitebook is to continue promoting positive progress in administrative reform, streamlining business conditions, strengthening the business and investment enviroment, sharing the goal of attracting Foreign Direct Investment (FDI) with Vietnam Government. If the recommendations of EuroCham are thoroughly considered by the Government, more and more European businesses will invest in the country in the future.  This important publication reflects the sincere wishes of the European business community in supporting the Government’s reform program and helping Vietnam more attractive, more competitive and more friendly towards enterprises.

Vietnam acknowledged EuroCham’s efforts in the launch of the publication and appreciated the focus of this year’s Whitepaper on administrative reform – an essential process for the smooth implementation of the EVFTA. This publication has reflected the desires of the European business community to promote the improvement of the business environment in Vietnam.

The dispute resolution lawyers at ANT Lawyers contributed to write chapter 5, Commercial Mediation chapter of the Whitebook.

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What is a Trademark?

A trademark is a type of intellectual property. A trademark also commonly known as a trademark, trade-mark or a mark. A trademark consists of a recognizable sign, design, or expression which identifies products or services of a particular company and helps in distinguishing the products from those of others. The symbols ® ‘the registered trademark symbol’ and ™ ‘the trademark symbol’ are generally used to indicate trademarks; the former is only for use by the owner of a trademark which is registered.

Register trademark in Vietnam

The trademark can be owned by:

-An individual,

-Business organization,

-Or any legal entity

When a trademark is registered, it confers an exclusive right to the owner to use the registered trademark. Thus it can be said that the trademark can be used by his owner exclusively, or it can be used by a person licensed for use in return of valid consideration.

Complete assignment

In this type of assignment, all the rights are completely transferred by the owner to the assignee.

The assignee has got all the rights including rights such right to further transfer and right to earn royalties.

Partial assignment

In this type, the assignment of the trademark is made to the assignee, but with respect to only some of the goods/ services, the transfer of ownership of the trademark is restricted to specific goods or services only. The rights are not transferred completely.

Assignment with goodwill

In this type of assignment, there is also a transfer of goodwill of the product with the trademark. In this, the valuation of goodwill is calculated differently in the agreement.

Assignment without goodwill

 In this type of assignment, goodwill of the product is not transferred along with the assignment of the trademark; in this, the owner of the brand restricts the rights of the assignee and does not allow him to use such trademark of the brand for the products being used by the assignor. Such an assignment is also referred to as a gross assignment.

When can a Trademark be assignerd?

A trademark can be assigned in the following situations

The Death of the Trademark Owner

Whenever the owner of the trademark i.e. the assignor dies, its ownership is passed on to the successors of the previous owners in a will or intestate. The condition is that the Trademark must be valid and should not have been abandoned by the previous owner.

Sale of Business

 Intellectual properties are assets for the company, just like all properties, even the trademark can be sold with the company. Provided it is registered under the company’s name. If a party acquires trademark rights of a company by acquiring a business with regard to the sale of assets of the company, the intellectual properties are also said to be transferred.

Change of the owner of businesses

When two companies decide on having a merger or an amalgamation of the company, a notification is sent to the registry. All the intellectual property of the acquired company are transferred to the new owner through the trademark assignment agreement between the parties.

Change in Form of Business

Whenever a business plan on changing its form of business or its business structure an assignment is a boon for those businesses.

If you are looking for an experienced trademark attorneys in Vietnam to help you with your trademark application, you should visit ANT Lawyers.vn. Our attorneys have experience with the trademark process and will work closely with you as you apply for your trademark.

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What constitutes as an intellectual property?

Intellectual Property is the Property, which has been created by exercise of Intellectual Faculty. It is the result of persons Intellectual Activities. Thus Intellectual Property refers to creation of mind such as inventions, designs for industrial articles, literary, artistic work, symbols which are ultimately used in commerce.

Intellectual Property rights allow the creators or owners to have the benefits from their works when these are exploited commercially. These rights are statutory rights governed in accordance with the provisions of corresponding legislations. Intellectual Property rights reward creativity & human endeavor which fuel the progress of humankind.

The intellectual property is classified into seven categories i.e

-Patent

-Industrial Design

-Trademarks

-Copyright

-Geographical Indications

-Lay out designs of integrated circuits

-Protection of undisclosed information/Trade Secret according to TRIPs agreements.

Source: Quora

If you are looking for an experienced IP attorneys in Vietnam to help you with your IP application, you should visit ANT Lawyers.vn. Our attorneys have experience with the IP process and will work closely with you as you apply for your IP. Hope this helps!

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What Are Obligations of Using Patent and Trademark?

When applicants of invention or mark are granted patent or trademark certificate, they are obliged to use these subjects. The reason for this provision which is, the owner may not use patents or trademarks in practical causing difficulties for the person who would like to use the patent and trademark in reality but cannot register as others has already registered.

According to Article 136 Vietnam Law on intellectual property clearly regulated on obligations of ownerin using patent and trademark.

Firstly, to patent, the owner is be obliged to manufacture protected products or apply protected processes to satisfy the requirements of national defence and security, disease prevention, and treatment and nutrition of the people or to meet other social urgent needs. When the needs stipulated in this clause arise but an invention owner fails to perform such obligation, the competent State body may license such invention to others without permission from the invention owner in accordance with the law.

Secondly, to trademark, trademark holder is obliged to use trademark continuously. Trademark used under a trademark use agreement by a transferee is also considered as an act of using the holder’s trademark. In case the trademark is not used continuously for five years or more, the Trademark Certificate of Registration shall be invalid.

Specifically, if the trademark holder or the person who is allowed to use the trademark do not use the trademark within continuous five years before the date of request to terminate the validity without reasonable reason, except the using starts or restarts at least 03 months up to date of having the termination of validity request.

If the client needs help with handling such complaint, our Intellectual property attorneys in Vietnam at ANT Lawyers will be of help.

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What is Agreed Matrimonial Property Regime of Spouses Under Vietnam Laws?

Husband and wife have the right to choose to apply the statutory or agreed property regime. Basic contents of an agreement on the matrimonial property regime (prenuptial agreement) includes: (i) Property determined as common property and separate property of the husband and wife;(ii) Rights and obligations of the husband and wife toward common property, separate property and related transactions; property to meet the family’s essential needs;(iii) Conditions, procedures and principles of property division upon termination of the property regime;(iv) Other related contents.

When choosing to apply the agreed matrimonial property regime, husband and wife may reach agreement on determination of property as follows:(i) Matrimonial property includes common property and separate property of husband and wife;(ii) Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is common property;(iii) Husband and wife have no common property and all property a spouse has before marriage and during the marriage period is separate property of that spouse;(iv) Property is determined as otherwise agreed by husband and wife.

Although property regime is based on the wills of the parties, it still must comply with regulation of law. Agreed property regime shall be made in writing before their marriage and be notarized or certified. The agreed matrimonial property regime shall be established on the date of marriage registration. It should be noted that in case of applying the agreed matrimonial property regime, when establishing and making a transaction, a spouse shall provide a third party with relevant information. If a spouse fails to perform this obligation, the third party shall be regarded as acting in good faith and have his/her/its interests protected.

An agreement on the matrimonial property regime shall be declared to be invalid by a court when: (i) It fails to meet the conditions on effect of transactions;(ii) It violates one of the provisions in Article 29, 30, 31 or 32 of Law on marriage and family 2014;(iii) Its contents seriously infringe upon the rights of being supported and inherit and other lawful rights and interests of parents, children and other family members.

Specifically, both parties must still comply with the regulations on:

·        General principles of the matrimonial property regime: (i) Husband and wife have equal rights and obligations in the creation, possession, use and disposition of their common property without discrimination between housework labor and income-generating labor; (ii) Husband and wife have the obligation to ensure conditions for meeting their family’s essential needs.; (iii) When the performance of property rights and obligations of husband and wife infringes upon lawful rights and interests of the wife, husband, their family or other persons, compensation shall be paid.

·        Rights and obligations of husband and wife to meet their family’s essential needs: (i) Husband and wife have the right and obligation to conduct transactions to meet their family’s essential needs; (ii) In case husband and wife have no common property or their common property is not enough to meet their family’s essential needs, they shall contribute their separate property according to their financial capacity.

·        Transactions related to the home being the sole domicile of husband and wife and transactions with third parties in good faith related to bank accounts, securities accounts and other movable assets which registration for ownership and use is not required according to regulation of law.

In summary, although property regime is based on agreement of both parties, this written agreement still must comply with regulation of law and is not allowed to violate rights of other party or any other individual, organization. If such agreement violates above provisions, persons with related rights and interests may request a court to declare it invalid. According to regulation of law, following agencies, organizations and individuals are entitled to require the Court to declare matrimonial property regime of spouse invalid: (i) Spouses have agreed on property regimes; (ii) Person whose right and legal interest violated due to matrimonial property regime of spouse and his/her guardian.

Once property regime agreement is mad, are both parties entitled to edit?

In case of applying the agreed matrimonial property regime during the marriage period, husband and wife may reach agreement to modify and supplement some or all contents of that property regime or apply the statutory matrimonial property regime. The agreement modifying and supplementing the matrimonial property regime shall be notarized or certified in accordance with law. The agreement modifying and supplementing contents of the matrimonial property regime shall take effect on the date it is notarized or certified. A spouse shall provide a third party with relevant information. Property rights and obligations arising before the time of modifying and supplementing the matrimonial property regime must remain legally valid, unless otherwise agreed by involved parties.

Upon divorce, the following case will apply statutory matrimonial property regime, it means that parties will reach agreement, if they fail to reach agreement, at the request of a spouse or both, a court shall settle it according to Law on marriage and family: (i) There is no written agreement of matrimonial property regime of spouse;(ii) Written agreement of matrimonial property regime of spouse is declared completely invalid by the court.

Case will apply agreed matrimonial property regime: There is a written agreement of matrimonial property regime and this written agreement is not declared completely invalid by the Court. The following cases will apply provisions of Law on marriage and family:(i) The agreement is insufficient or unclear;(ii) The matters are not agreed by both husband and wife.

It is important that spouses consult with family lawyers if potential disputes would lead to divorce for proper preparation before filing a lawsuit.

ANT Lawyers is a Vietnamese law firm in Vietnam with English speaking lawyers whom understand the laws of Vietnam within the business and the local culture context. We provide convenient access to our clients. Please contact our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

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