Incorporation of CPTPP Agreement Relating to Origin Rules into Vietnam Laws

The CPTPP Agreement took effect in Vietnam as of January 14^th, 2019 including 11 founding countries including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, Singapore, New Zealand, Peru and Vietnam. On January 22^nd, 2019, the Vietnam Ministry of Industry and Trade issued Circular No. 03/2019/TT-BCT (Circular 03) regulating rules of origin of goods in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) to incorporate and implement the commitments of CPTPP.  These rules are important for investors whom are transitioning their factories and manufacturing sites from neighboring counties to Vietnam and set up company to obtain the certificate of origin from Vietnam.  However, the understanding of regulations of the circular and relating laws requires the consultation of international trade lawyers in Vietnam for application in particular cases.

Certificate of Origin Lawyer in Vietnam

Goods are treated as an originating goods if meeting the following requirements:

-Wholly obtained or produced entirely in the territory of one or more of the Member States;

-Produced entirely from materials originating in the territory of one or more of the Member States; or

-Produced entirely in the territory of one or more of the Member States using non-originating materials provided that the goods satisfy all applicable requirements of Annex I attached to the Circular 03.

Moreover, CPTPP Agreement stipulates the origin rule for the Remanufactured Good and Sets of Goods, regulated in Article 7 and Article 20 of Circular 03 respectively.

-Regarding the Sets of Goods, the set is treated as originating if the value of all the non-originating goods in the set does not exceed 10% of the value of the set.

-Regarding the Remanufactured Good, Remanufactured Good are committed to treat as new goods at the same type. CPTPP also has very flexible rules regarding rules of origin for these Good: a recovered material derived in the territory of one or more of the Member States is treated as originating when it is used in the production of, and incorporated into, a Remanufactured Good.

Both CPTPP Agreement and Circular 03 (Article 14) also provide De Minimis regulations, which means that a goods that contains non-originating materials that do not satisfy the applicable change in tariff classification requirement for the good is nonetheless an originating good if the value of all those materials does not exceed 10% of the value of the goods.

In addition to Build-up Method and Build-down Method for calculating Regional Value Content (RVC) based on the value of originating and non-originating materials respectively, CPTPP also stipules Focused Value Method based on the value of specified non- originating materials and Net Cost Method for automotive goods only.

Relating to C/O granting, Vietnam shall use the mechanism of certification by competent authority for goods exported to other Member States. The time for implement the mechanism of self-certification of goods origin by exporters is carried out from 5 to 10 years under the guidance of the Ministry of Industry and Trade. The mechanism of Vietnamese importers self-certifying their origin is implemented after 5 years from the effective date of CPTPP. The procedures of certification and inspection of goods origin shall comply with the provisions of Decree No. 31/2018/ND-CP dated on March 8^th, 2018 of the Government detailing the Law on Foreign Trade Management on goods origin and other related documents.

Lawyers at International Trade and Taxes practice of ANT Lawyers always follow the changes in law to update client for decision making process in investing and optimizing operations in Vietnam.

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What are the steps to get a patent?

The best way to file a patent application is to be well prepared for your meeting with a patent attorney or agent who will prepare and file the patent application. Here are the steps that a savvy inventor takes prior to meeting with their patent attorney or agent:

 Register patent in Vietnam

1.Pull together a list of names, residence addresses and citizenships for everyone who contributed to the technology being protected. If you are incorporated, or other business entity filing your first application, gather the legal company name, state of incorporation and official address.

2.Pull together a list of any disclosures of the invention made to others. These can include offers to sell, license or commercialize the invention, papers that you and/or your colleagues published, web site or social media postings, and so forth. This will enable your patent attorney or agent to determine a date by which he/she must file your patent application.

3.Prepare a description of your invention, including a breakdown of the device or code module into functional pieces. Describe each piece and how it relates to the whole. This will enable your patent attorney or agent to prepare a specification portion of your patent application. The legal standard provided under the US patent law is that the specification must be complete enough to enable a person skilled in the relevant art, but not familiar with your invention, to build a working unit. So, the more detail you include, the better the final product will be and the quicker the turn around time by your patent attorney or agent, saving them time and you money.

4.Supplement the description above with figures. Flow charts, block diagrams, system diagrams, data flow diagrams, and so forth are all welcome. Hand drawn will work, but drawing files made using a CAD program, Microsoft Visio, Corel Draw or other drawing program usually can be used by the attorney or agent, saving them time of re-drawing the figures with one of these programs, which will save you money.

5.Make a list of at least three features or elements that your invention has or is able to do that are not provided by any known competitors. Also, include an advantage for each feature or element. This will enable your patent attorney or agent to prepare a claim set for your patent application. Good claims include enough detail about features and elements not found elsewhere to pass examination at the patent office.

6.You don’t need to search competitors’ systems, but to the extent you know of them, make a list of these as well. If there are published papers, articles, etc. in the technology area that describe approaches taken prior to your invention, bring these as well. This will enable your patent attorney or agent to prepare an Information Disclosure Statement for your patent application, which will satisfy his and your duty to disclose any known information relevant to patentability to the patent office.

What did you leanr from applying for a patent?

Now you are ready to meet with your patent attorney or agent. Bring items 1 - 6 above with you to the meeting. Schedule at least an hour and perhaps as much as two to go over the details with the patent attorney or agent. At the end of the meeting you and the patent attorney or agent should be able to arrive at an agreed protection strategy, a prototype claim, an estimated budget for the project and an anticipated date for completion.

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How can I report a trademark infringement to the US Patent and Trademark Office?

Trademark law is a civil matter. So, if you see someone is infringing your trademark rights, your best option is to initially send them a cease and deist letter. If they don't respond or they refuse, your next course of action would usually be to initiate a lawsuit against them, to get them to stop the infringing activity.

Trademark Infringement in Vietnam

The USPTO does not directly deal with this matters. If, however, someone is trying to register a mark that you think is too similar to your trademark, then you can submit an opposition or file a cancelation with the USPTO. Again, these options only apply if the third party is trying to obtain federal trademark protection through an application.

Source: Quora

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Is intellectual property really that important?

Intellectual property protection is extremely important. When it comes to protecting IP two areas of protection should be taken in account: 1) protecting your liability and 2) protecting your intellectual property (IP).

Liabilities like the terms and conditions prevent claims initiated by people who use your website. The other liability known as privacy policy is legally required for websites that collect user data. Protecting your IP requires confidentiality agreement. Every employee, developers and programmers should sign a non-disclosure agreement in order to avoid disclosure of trade secrets, in case they are involved in your website development. IP assignment agreement is also essential for the protection of IP when you hire people to work on your website.

Intellectual Properties Rights in Vietnam

Among the assets of IP protection a patent is the most expensive and complex form of protection. A patent helps to prevent others from exploiting the owner’s invention. It is a territorial right exclusively applicable in the area or geographical region where a patent has been granted. It is highly recommended that you consult a patent attorney if you’re going to head in this direction.

IP protection asset like a trademark is a sign that can distinguish a good or a service of an enterprise from the other. It is protected by IP rights registered with a national or regional office of emblem, in order to confer an exclusive right to use the registered logo.

Copyright is the legal term that describes the rights of the creators on their creative inventions that could be a design, a painting; literary work etc. in simple words copyright protects the work of a creator.

Source: Quora.com

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Multimodal Transport Business Regulations in Vietnam

On October 16th, 2018, Vietnam Government issued Decree No. 144/2018/ND-CP amending, supplementing the decrees on multimodal transport. Under the law of Vietnam, multimodal transport (“MT”) is the transportation of goods performed with at least two different modes of transport under the multimodal transport contract from an original place to a place designated for delivery, the carrier is liable for the entire carriage. MT business includes: International multimodal transport (“IMT”) and Domestic multimodal transport (“DMT”).

The new decree eliminates and simplifies regulations on IMT business conditions and abolishes DMT business as a conditional business line. In fact, DMT including many transportations such as transport by sea, air,… is governed by specialized laws on each transport, hence it is not necessary to stipulate additional business conditions when conducting the combined transport.

Regarding the conditions of IMT business, the new Decree no longer differentiates between domestic and foreign enterprises as in the past, all enterprises therefore must meet the followings:

(1) Maintaining a minimum amount of assets equivalent to SDR 80,000 or provide an equivalent guarantee or an alternative of financial character as regulated by laws;

(2) Having a liability insurance policy for multimodal transport operator or an equivalent guarantee.

In addition, in order to facilitate member state of the ASEAN Framework Agreement on Multimodal Transport or another international treaty on multimodal transport to which Vietnam is a signatory, new regulations are stipulated as follows:

(1) Having a registration certificate of international multimodal transport or another document of equivalent validity issued by the competent national body of its country;

(2) Having a liability insurance policy for multimodal transport operator or an equivalent guarantee.

The licenses to provide international multimodal transport service issued by competent authorities of Vietnam before the date of entry into force of this Decree are still valid until their expiration dates.

With the role of supporting trading activities, modern transports need to meet the increasingly complex requirements of the domestic and international transport market, which not only deliver goods but also connect the transport process into an uninterrupted transport chain to ensure a faster and safer transport process.

Transport lawyers at ANT Lawyers, the law firm in Vietnam have always following up the legal development on transportation to provide our clients with regular update on the matter

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If two people draw a picture, who owns the copyright?

If two people collaborate and produce a single picture, then as others have noted, they are “joint authors” and they jointly own the associated copyright. Among other things, that means a single author can unilaterally license the work to anyone and on any terms the single author sees fit. (There is, however, a requirement to share licensing revenue, if any, with the other coauthor(s).)

Copyright in Vietnam 

 But you might be asking if two people independently each draw two identical or near-identical pictures. In that case, they each own the copyright in their respective work, even if the works are damn near identical.

This is true even without regard to timing. If you produce something (whether it’s a picture, a poem, a song, etc.) and fifty years later I independently produce the identical work, then (a) I’m not infringing your copyright, and in fact (b) I own the copyright to my work, even though it happens to be identical to your work.

Of course, this is kind of an academic statement. If the first work is popular, it’s damn near impossible to prove the second work was produced independently. If the first work isn’t popular, then in practice it’s unlikely there will ever be a real dispute.

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What's the best way to register an international trademark?

Here are the basic steps you need to register a trademark:

Step 1: Pick a trade mark

Let's say your company makes metronomes and is called "Metro". It's likely that the trademark (or word mark) you want to register will be "Metro".

Trademark attorneys in Vietnam

Step 2: Decide if you want a lawyer or not

You do not need to hire a lawyer, however if you do they will be able to streamline the process and you will not have to deal with the trademark office.

Further, they will be able to answer a lot of the questions related to the steps below.

Step 3: Decide which classes you want to use to register your trademark

Trademarks are an interesting beast.

Some have complained about the fact that "ordinary" words such as Apple can be registered as trademarks. But, does that mean that only the tech company Apple can ever refer to the fruit? Of course not! That would cause a lot of problems and to overcome this barrier, the (WIPO) decided to institute a system called the “ International( NICE)classification of goods and services".

Under this Classification system you must select the goods and/or services you want to use that trademark for. Then, your trademark is protected against only those goods and/or services.

For example, if another tech company started calling themselves Apple, then the real Apple, Inc. could sue them for trademark infringement. However if a shoe company called themselves "Apple" then it's unlikely (but not impossible) that Apple, Inc. would have a claim against them.

So, if your company was selling metronomes, you would probably classify your trademark under Class 9 for metronomes (NICE classification - 9).

Step 4: Select the countries where you want to register the trademark

There is no such thing as an "international registration". You'll have to register the trademark in each individual jurisdiction (e.g. USA, EU, Brazil, India, China, etc.). So, this would be a good time to decide which countries you want to register in.

Step 5: Registering your trademark

Now you need to decide if you want to use the Madrid Protocol to register the trademark or register in each individual country...more below:

Step 5a: Madrid Protocol route

TheMadrid system for registering international trademarks allows you to designate which countries you want to register your trademark in. There are currently 91 countries who are part of the Madrid system, so there's a good chance the country you want to be register in will be among those.

Let's say you want to register your trademark in the five countries mentioned above. Here's what you need to do:

Apply for registration of the mark in one of the countries. Before you can designate the other countries for registration you need to file the trademark in a country that is part of the Madrid system. Let's say you have your office in the US. You can use the United states patent and trademark office (USPTO) to apply for a trademark for the word "Metro" in the US. The requirements to file a registration here can be found on the USPTO website.

International filing. Once you have applied for or obtained a registration in the US, you can then go to the WIPO and find the rules and documents needed to file the application in the other countries you want.

Calculate fees. This is a good time to use the Madrid system fee calculator to find out how much you will have to pay for the registrations. The more countries you register in, the more it will cost you.

Register and wait. Next wait for your registration in the US and in the designated Madrid protocol countries. You might need to deal with "office actions" which will require you to explain why you are registering the trademark and how it will be used.

Step 5b: Non-Madrid Protocol route

Some countries are not a party to the Madrid Protocol and you will have to manually register in these countries. For example, Cambodia is not a party and the only way to register here is to go to its trademark website and fill out the appropriate application forms. This can be very difficult as you may need to be physically present to submit your application.

Source: Quora

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What is the best time for trademark registration?

Trademark is a sign for consumers to identify the goods or services of each company from those of others.

Since trademark registration is not mandatory, many entrepreneurs (especially startups) feel that it is not required and will eat up their funds. Unfortunately this is a very wrong perception and when they realise this it is too late.

Trademark Lawyers in Vietnam

In my opinion, trademark registration should be done before starting your business. Reason for this are:

1.      Before filing trademark registration application public search is performed. This is done to check whether there is an existing same or similar name already registered. This helps in ensuring that you do not infringe someone else’s trademark as it may lead to expensive law suit.

2.      You can prevent others from using your brand name and reap the profits of your hard work. This will help you in keeping check on duplicate products/services in market to reap the profits from your hard earned goodwill.

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Meeting with Mr. Victor Schachter on Jan 18th, 2019 on Development of Mediation & ADR in Vietnam

On January 18th, 2019, ANT Lawyers’ representatives Mr. Tuan Nguyen, and Ms. Thuy Nguyen received Mr. Victor Schachter - the Founder and the President of The Foundation for Sustainable Rule of Law Initiatives (FSRI) at ANT Office Building, A9 Xuan Phuong Garden, Tran Huu Duc Street, Nam Tu Liem District, Hanoi. FSRI is a non-governmental organization which provides training, education and counseling to a range of legal providers in developing countries, including courts, judges, lawyers and mediators, with the goal of building sustainable mediation programs which achieve timely, fair and peaceful resolution of disputes.

At the meeting, Mr. Schachter emphasized the importance of mediation: "More and more big companies have been using mediation to win-win solution, they don’t want to destroy their relationship to resolve their problems”, which has been seriously taken note by Mr. Nguyen.

On the occasion of Mr Schachter’s visit, he has been informed by Mr Nguyen about the newly set up mediation center in Vietnam, the Vietnam Effective Commercial Mediation Center (VEMC) which license has been granted by Ministry of Justice in 2018.  Mr Schachter spent time to  visit the mediation facility including the training room, mediation rooms for joint meeting and private meeting and suggested some modifications according to his experience from the US’s mediation practice. VEMC will operate under the Decree No. 22/2017/ND-CP dated on February 24th, 2017 of the Government on Trade Mediation. This is the fifth mediation center of Vietnam established and operated since the Decree No. 22/2017/ND-CP officially took effect.

Since 2012, Mr Tuan Nguyen has been made aware of mediation and its benefits.  He has been attending many training since and most recently been accredited by CEDR and Ministry of Justice as mediator.

Recognizing the rise in number and complexity in commercial dispute, the 2015 Civil Procedure Code has a new chapter on recognizing mediation. In February 2017, the Government issued Decree 22/2017/ND-CP officially legalizing commercial mediation. In addition, the Vietnam Government also has been focusing on developing mediation as alternative dispute resolution by piloting court-annexed mediation centers in Hai Phong and expanding to Hanoi, Ho Chi Minh City, Da Nang, Bac Ninh, Khanh Hoa, Long An. The results and experience of the project will be an important basis for developing and promulgating the Law on Mediation and Dialogue at the Court.  A written record of successful mediation results shall be recognized and enforced in accordance with the civil procedure law. This is an advantage of mediation activity in Vietnam to encourage parties to participate in resolving trade disputes by mediation.

End the end of the meeting, both Mr Schachter and Mr Nguyen promised to continue working on initiative to promote mediation and ADR service inVietnam through training, conferences and technical assistance.

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Importance of Intellectual property protection

In today’s competitive and dynamic environment, Intellectual property (IP) can be a unique selling proposition (USP) of the product or service, and it helps create a sustainable and defensible differentiator for the company.

Intellectual Property Lawyers in Vietnam

By owning Intellectual property (IP), a high entry barrier is created, thereby helping you to grow your venture faster with respect to your competitors’ offerings. Note - Intellectual property (IP) is always given high weightage by the investors and creates good value for your venture.

Intellectual property has, in fact, been identified as the key ingredient for startups across the world to get a competitive advantage in the market, according to the Startup Genome Project that aims to map, model and analyse what it takes to make startups tick.

Intellectual property assumes even greater significance for technology startups, where new innovations are being made every day. There is a huge brand value attached to IP, in both the manufacturing and technology sector. It gives investors, clients, and other stakeholders a tremendous sense of confidence in your commitment and passion to not just succeed, but also become a market leader in your area of operation.

There are essentially three ways in which a startup (or any other organisation) can protect its intellectual property (i.e., the idea or concept/ product/ process/ associated symbols, logos etc. that define the brand), namely, through:

-Patents

-Trademarks

-Copyrights

Intellectual property is, in fact, an asset for its owner and has a commercial value attached to it.

For any problems about intellectual property rights in Vietnam, feel free to contact me.

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