Tax Obligations of Representative Offices in Vietnam

Foreign entities have found Vietnam as an increasing attractive destination for investment.  They could consider entering Vietnam in various forms, including setting up representative offices.

“A representative office is a dependent unit of the enterprise, having the task of representing under authorization the interests of the enterprise and protecting such interests” (Clause 2 of article 45, Law on Enterprises 2014). “Representative office shall perform the functions of liaison offices, market surveys, promotion of business opportunities for traders they represent, excluding those in which the establishment of representative offices in that field, it is stipulated in specialized legal documents” (Article 30 – Decree No.07/2016/ND-CP decree detailed regulations on establishment of representative offices or branches of foreign traders in Vietnam under Laws on Commerce).

A representative office is a dependent unit of a foreign enterprise in Vietnam, and it acts under the authorization of foreign enterprises. Representative office shall not conduct business activities therefore, the tax obligations of the representative office are limited, such as:

Firstly, as representative office does not involve profit making activity, hence there are no Value Added Tax, Corporate Income Tax, Annual Due incurred.

Secondly, representative office has to register its tax code, to deduct and pay Personal Income Tax on behalf of its employees working in the representative office or deduct and pay contractor taxes for foreign sub-contractors (if any).

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What is plagiarism?

Plagiarism means claiming other's ideas as one's own. It means taking information or ideas from other writers and using them in one's own work without acknowledging the source appropriately.

Mostly the University students seem to have faced the issue of plagiarism as they use other's works without citing or acknowledging them either by intention or due to lack of knowledge on the importance of quoting or citing.

Since it is a serious academic offence/sin, each writer should attempt his/her best to avoid plagiarism. It is a form of intellectual dishonesty or theft.

The following ways of taking information from others would be considered plagiarism:

1.      Not providing reference when we have used other's ideas in our work.

2.      No use of quotation marks even if we provide the reference.

3.      Taking a few sentences or paragraphs from other's work without referencing.

The following ways would not be considered plagiarism:

1.      Use of commonly accepted ideas even without referencing.

2.      Presenting the results of our own work.

3.      Use of some vocabulary from the original or use of some new sentence structures different from the ones in the original texts.

4.      Using the summary substantially different from the original.

Source: Exposureacademy.blogspot.com

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Forms of Disputes and Approaches to Settlement

Dispute in Vietnam could be between parties in business transaction, foreign investors and Vietnam government, or between countries in implementing international treaties.

The formation of market economy in Vietnam took place in the context of the development in the width and depth of the economic ties at a significant fast pace that make Vietnam an important part of the world supply chain.  Vietnam suppliers could sell the goods and services to the world and the foreign supplier could also export their goods and services to Vietnam market.  Further, as the Vietnam market opens up, foreign investors could invest through various forms of investments in Vietnam i.e. acquire equities in Vietnam companies, establish business in Vietnam.  During this process, disputes are an inevitable result which has been growing in scale and complexity.

Most should agree that disputes shall be construed as the dissent, inconsistencies or conflicts of interests, rights and obligations between the parties in the economic relations at different levels. Accordingly, economic disputes can have the following basic forms:

– Disputes in business are between the participants in a business transaction including investments, production to consumption of products or performance of services on the market for profit purposes i.e. professional and product liability, debt disputes over a business transaction, franchise disputes, intellectual property disputes, and disputes over contract for supply of goods or services…

– Disputes between foreign investors with Vietnam government agencies, arising in the implementation of the BTO, BT, BOT, and the implementation of international agreements on promotion and protection bilateral and multilateral investment i.e. government policy and policy measures, concession to water and sewerage, power or energy supply, project or contract payment…

– Disputes between countries in the implementation of the international bilateral and multilateral agreements.

In Vietnam, as the disputes arise, parties involved could consider resolving the matters through negotiation, mediation, arbitration, or taking court actions after taking consideration of various factors including cost, time, and the complexity of the disputes.  Litigation law firm in Vietnam with skillful dispute lawyers should be consulted to provide the suitable advice for dispute resolution.

How ANT Lawyers Could Help Your Business?

Contact Us for ADR & Mediation Services provided by qualified mediators and lawyers, supported by field experts. Via email ant@antlawyers.vn, office tel (+84) 24 32 23 27 71 or talk to our partner directly at + 84 912 817 823.

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Dispute Settlement in International Trade

In international trade, when drafting international contracts, the parties usually focus on the terms of payment and expense but little attention to terms of dispute settlement. Thus, the parties should be aware that the disagreements and disputes can arise at any time. Therefore, in the process of concluding an international economic agreement, the parties should note the provisions on the selection methods of dispute settlement if a dispute occurs. Currently, there are 4 dispute resolution methods in international trade as follows: negotiation, mediation, commercial arbitration and court.

• Negotiation

Negotiation is a settlement method which is usually applied in international dispute settlement. In particular, the parties discuss together, struggle, compromise and agree to settle the dispute. The result of the negotiation is that the dispute could be resolve or not. Negotiation is conducted in two ways: The two parties directly meet each other to discuss and deal or one party submit complaint to the other party and the other party answers the complaint.

• Mediation

Mediation is the method of resolving dispute between the parties through the role of a third party. Mediation can be accomplished by two ways: One is that the parties agree with each other about mediation, the mediator will be designated and conduct the mediation without following any rules of mediation. The second way is that the parties agree to conduct the mediation under rules of a professional organization or one specific arbitration institution, such as mediation rules of the International Chamber of Commerce (ICC).

• Commercial arbitration

Arbitration is a method of dispute settlement arising in trade activities that are agreed between the parties and carried out according to the order and proceedings. Presently, there are kinds of arbitration such as: ad hoc arbitration and permanent arbitration.

• Court

The 3 dispute settlement methods above are voluntary in nature. They are different from the dispute settlement in accordance with judicial procedures at court. The settlement of dispute by court is to resolve dispute through the activities of the State tribunals. Therefore, litigants in the dispute are often considered as a final solution to protect their legitimate interests. Especially, when there is a conflict, the parties will choose the form of trade negotiation or mediation rather than commercial arbitration or court.

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What is intellectual property protection?

In short an intellectual property protection is a protection which prevents someone from stealing your creation.

There are many types of intellectual property protections, so you can be lost in choosing the protection which fits the best your creation. Indeed, depending on your type of creation, you can have:

-An automatic protection;

-A protection you have to apply for;

-An non-disclosure agreement.

-Automatic protections :

Copyright and Design right

The good news about these both protections is that you don’t need to do any application. They are also completely free. Copyright and Design right prevent people from using your work without your permission.

Design right                                                      

Design right protects only the configuration and the shape of your creation. This protection lasts 10 years once it is sold and 15 years from its creation. If you want to benefit from this right you have just to prove the date of creation and that is all.

Copyright

Copyright protects a lot of creations such as photography, web content, films, music…This protection is automatic, however, I advise you to inform the users that your creation is protected.

For that, you just need to add on your creation the following information: the copyright symbol ©, the year of creation and your name. This protection can be applied abroad if your country has signed international agreements. Usually the protection lasts around 25 years for photographs and 50 years for the other types of work.

NOT Automatic Protections

Registereddesigns, trademarks and patents

These protections are not automatic. You have to follow a process to benefit from these protections. Thanks to these rights, you have a legal action against someone who uses your creation or invention without your permission.

Registered designs

By registering your design, you protect its appearance, its shape or its decoration. The protection lasts up to 25 years however you have to renew it every 5 years.

Trademarks

Trademarks protect jingles, logos and product names. The application is a little bit more expensive. It costs around £250 and takes 4 months. The protection lasts 10 years. However it is renewable.

Patents

A patent is a veryeffective protection for your creation. However the procedure is time-consuming and very expensive. The application lasts around 5 years and costs around £4.000 because you need to hire a professional to do the application. A patent protects an artistic work, a playing game or a diagnosis.

Non-disclosure agreement:

An non-disclosure agreement is a contract signed by your partner and you. You can include the confidential information you want to share. Your partner is not allowed to disclose this information.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers IP Practice or contact our IP lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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How to Prepare and File a Lawsuit in Vietnam?

If two parties have a dispute over a commercial matter in Vietnam, they should try to resolve disputes through negotiation, or mediation before considering to file a lawsuit against the other at a court in Vietnam.

To implement their right to sue, the plaintiff must prepare and submit the claim at the competent court in Vietnam.  The dispute lawyers in Vietnam with experience and understanding the litigation process should be invited at the early stage to advise, represent and prepare to defend the client.  The claim filing should include the petition and the supporting documents.  The petition is the most important legal document for the court to review and resolve the claim of the plaintiff, as such it should be carefully prepared to meet the requirements of the form, authority, and further contain information about the plaintiff, defendant, summary of the case and the request of the plaintiff.

The contents of the petition must be presented in full, brief, clear, and in logic.  The plaintiff should provide all documents, and evidence to prove the merit of the claim including contract, purchase order, separate terms and conditions, appendixes (if any), minutes of meetings of negotiations, invoices, delivery proof, legal status of plaintiff and defendant, documents to determine the legal status of the representative of the plaintiff such as appointment decision, power of attorney.  In order for the document issued in foreign country to be valid in Vietnam, the documents presented have to be original or notarized, legalized and authenticated copy and translated into Vietnamese in accordance with Vietnam laws.

When the claim has been filed at the competent court in Vietnam provided all conditions of acceptance are met, the court will notify the plaintiff or its representative know the court fees. When the applicant advance the court fee, the case will be recorded and brought into the process for settlement.

At the trial preparation process, the case will be assigned to a judge whom after studying would request parties to present additional necessary papers and documents relating to the case.  Parties or their representative would then be requested to meet the judge to provide further information or testimony or attend reconciliation.  If the disputing parties resolve disputes with each other, the court will make a record to acknowledge the successful reconciliation and issue the decision to recognize the agreement of the parties. Where reconciliation fails, the court records that and shall issue the decision to bring the case to trial.

Disagreements or disputes arise when parties can not agree on issues related to contract provisions, expected outcome or performance starndards...There are cases when the dispute is over a debt obligations matters which a debt recovery law firm could assist at an early stage to manage the collection process pre litigations including negotitions and managing expectations of both sides.    

ANT Lawyers, a law firm in Vietnam will be available to assist the clients when required to handle dispute matters out of court, at court or through arbitration in Vietnam.  

How ANT Lawyers Could Help Your Business?

Contact Us for ADR & Mediation Services provided by qualified mediators and lawyers, supported by field experts. Via email ant@antlawyers.vn, office tel (+84) 24 32 23 27 71 or talk to our partner directly at + 84 912 817 823.

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How do intellectual property rights work?

The phrase intellectual property (IP) refers to the bundle of legal rights that arise from the creative genius of the human mind. IP rights play an important role in the economic prosperity of a country and serve as a motivating force for creative individuals to share their genius with society.

When most people think of intellectual property rights, patents, trademarks and copyrights come to mind. This core set of IP rights reward and protect the creative works of inventors, authors, owners and sellers of goods and services in the marketplace.

Intellectual propertyrights also foster a competitive marketplace. They do so by encouraging disclosure of innovation through protecting the fruits of that innovation for a period of time. Intellectual property rights are regional in nature and the conditions of their grant and enforceability are governed by the laws of each jurisdiction.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers IP Practice or contact our IP lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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ANT Lawyers Participating in GMS Rail Expansion Summit in Hanoi

Railway infrastructure project will be a huge opportunity for Vietnam to connect with neighboring countries, promote trade growth. Huge financial sources will be needed. For government’s perspective, support from private sector will be encouraged through policy, and laws on Public Private Partnership which will be drafted to replace Decree 15/2015/ND-CP promulgated since 2015. From private sector’s perspectives, investment into infrastructure will be opportunities, for investor, bank, EPC main contractor, sub-contractor, consultants to participate.

On Nov. 30 – Dec. 1, 2017, in Hanoi, Vietnam, GMS Rail Expansion Summit http://gmsrail.org has been held.  The countries of the Greater Mekong Subregion (GMS) – Cambodia, the People’s Republic of China (PRC), the Lao People’s Democratic Republic (Lao PDR), Myanmar, Thailand, and Vietnam – have expressed their desire, through the GMS Economic Cooperation Program, for better transport connectivity to improve the environment for trade.

The railways in the GMS countries have developed independently over the course of a century and are today, with the exception of a connection between the PRC and Vietnam, a collection of national railway networks that do not interconnect. Each national railway has developed into a unique system with its own standards and procedures. In view of escalating subregional trade, growing concerns over climate change and, more recently, sharply fluctuating fuel costs, the GMS countries have accelerated their plans for upgrading their national railway networks and for interconnecting these by constructing new railway connections.

It appears that, during the different phases of development of rail infrastructure projects, it is important to identify potential areas for issues to be arisen and therefore put in place a mechanism to minimize risks. The risks will need to be allocated to entity which is best positioned to manage such risks, which has to be shown in the form of contracts, agreement, to clearly determine roles of parties.

Mr. Tuan Nguyen and Mr. Thomas Giglione of ANT Lawyers, a law firm in Vietnam acted as chairmen of the conference and shared to the audience being government officials, investors, EPC contractors, consultants about potential risks arisen during different phases of executing rail infrastructure project and offer solutions to manage such.It has been highlighted for stakeholders to consider designing a dispute resolution system that resolve potential disputes in relation to the multi billion-dollar project.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Infrastructure or contact our Infrastructure lawyers in Vietnam for advice via email ant@antlawyers.vnor call our office at (+84) 24 32 23 27 71

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Which IP Matters of Concern Engaged into Outsourcing Marketing Campaign?

It is undoubted that time is a “precious commodity” when you are running business, however marketing your brand can take up plenty of your time. Earning the awareness, respect and trust of your Client at the beginning of your business by a marketing agency is quite effective. However, which Intellectual Property issues should be paid attention to? Are you owner of the marketing content or designs of logo?

Which IP rights should be aware?

Copyright: Marketing content including articles on your website, website design, posts on your social network platforms, music and video, slogans, architecture of your business location.

Trademark: logo, banner, images.

Industrial design: Distinctive packages, such as the shape of the containers, bottles.

Trade Secret: Some advertising techniques or means of doing business.

Who owns the rights?

According to Article 39 of IP Law of Vietnam, if you enter into a contract with an author for the creation of a work, you shall be the holder of the rights, unless otherwise agreed.  Therefore, for avoiding risks, it should be clearly stated in the marketing contract that “The hirer shall be the owner/holder of all designs, articles or other works created by employees or partners according to Intellectual Property Law of Vietnam”.

Once a slogan, logo or creative idea are shown in public, they could be copied and used by third parties.  Therefore, you could consider to:

-Register the advertisement and other copyright protected material (including a website design) and at the same time alerting the public that advertising material is legally protected by copyright law by a copyright notice in text on the video or images. For registering copyright in Vietnam, it takes about 15 working days.

-Register trademarks right after your marketing agency has finished the design. Also, you should state in the contract that “the marketing agency shall be responsible for all damages if the trademark is refused by the competent authority of IP because it is identical with or confusingly similar to trademark of others”

-Relating to trade secret which could not be registered, you should sign a non-disclosure agreement with the marketing agency.

Who is responsible for infringement of IP Right of the third party?

In case of outsourcing marketing campaign, you could not manage the process of creating and designing marketing tools. For example, the marketing agency would not report if it bases on ideas, designs, article of other person or organization to make the design for your company. However, in such case all information and images show the name of your brand, customers might think you are imitating others and this negatively affects the reputation and prestige of your company. We suggest that you should request the marketing agency to comply with regulations on the industrial property rights, copyrights and related rights strictly. Also, they shall be responsible for all damages claimed by the third party if there is any infringement when performing the scope of work.

Today, it is impossible for you to carry out a successful advertisement without understanding the IP issues arising when outsourcing marketing campaign. A lack of caution can lead to the loss of a company’s own IP rights or liability for infringing the IP rights of others. Besides, to avoid costly mistakes, you should conduct rigorous research both from IP perspectives and other general legal perspective such as comparing advertising, advertising licenses, promotion regulations before launching a new advertising campaign.

It is also suggested to consult with IP law firm and licensed IP agent for advice to protect your rights, through IP research, registration, drafting agreements, and handling infringement of industrial rights.

 Tuan Nguyen and Thao Hoang @ ANT Lawyers

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers IP Practice or contact our IP lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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Is it an infringement in copyright if you take a picture of a photo of yourself?

Is it an infringement in copyright if you take a picture of a photo of yourself? If so, why?

The fact that it is a photo of you is irrelevant.

If you take a photograph of another photo then there would be certain creative decisions you would make, such as lighting, angle, white balance, contrast, and medium that make the resultant photograph a derivative work, with two copyrights, one for the underlying original work and another for the elements you add.

Making the photo in itself would not be a copyright violation, but what you do with the resultant image if you publish or distribute it might or might not be depending on a number of factors. Is your use fair use? what are the rights granted to you? Is the underlying photo in the public domain? or a Creative Commons image and you publish in accordance with the license? And also what countries’ copyright laware the two images created under?

If the photo were of someone else then there could also be rights of publicity of the subject, or the original photo might have been taken with a model release (contract) specifying allowed uses of the image, which would likely also apply to any derivative works.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers IP Practice or contact our IP lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

Source: Quora.com

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IP Considerations in Technology Transfer to Vietnam and South-East Asia

On November 14^th and 15^th, 2017, European Chamber of Commerce in Vietnam held a seminar for representatives from businesses and law firms “IP considerations inTechnology Transfer to Vietnam and South-East Asia”.

The seminar provides some sound advice relating to IP Considerations & Practical Tips for Successful Technology Transfer in Vietnam. Further, audience could learn some ways to minimize risk of IP issues associated with Technology Transfer in South-East Asia.

According to Law on Technology Transfer 2017, which shall take effect as of July 01^st, 2018, Vietnam government ensures rights as well as legal interests and facilitates both organizations and individuals in carrying out technology transfer to Vietnam. However, to take advantage of such policy when contemplating transferring technology to Vietnam, you should Evaluate IP Value & Risk of IP infringements through the following tips:

·        Check availability of use or protection status of IP objects

·        Perform IP clearance search and market research

·        Check and maintain validity of IPRs

·        Use local IP agents as watchdogs of your IPRs (advice/strategy)

·        Use NDA (Non-Disclosure Agreement)

·        Check registration of IP objects with cautious consideration in the consistence of all material (contract and records by local authorities- NOIP)

·        Sign Transferring technology contract or Assignment of IPRs/ License of IPRs separately toward each IP objects

Besides, there are some contractual issues to pay attention to such as:

·        What are conditions of use?

·        Structure of fees for License,

·        How to terminate?

·        What happens with the goods/ materials/ equipment after termination?

·        How to avoid risk of technology usage after termination.

Multinational and global companies are always facing with challenges in devising creative solutions to minimize the risks to their IPRs associated with technology transfers. Careful evaluation and due diligence at the first stage of the transferring technology project help companies prevent unwilling suffer and unfair competition.

ANT Lawyers Co., Ltd is a law firm with IP agent certificate issued by National Office of Intellectual Property.  We are also member of legal committee of EuroCham which help contribute legal opinions to promote the development of investment environment in Vietnam.

Tuan Nguyen and Thao Hoang @ ANT Lawyers

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers IP Practice or contact our IP lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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Challenges in Preparing Documents for Representative Office Application

The representative office (RO) is a popular foreign investment vehicle which investors utilize when wishing to enter the Vietnamese market without committing too much investment.  The representative office could help the foreign entity to hire local employee to carry out market research, business promotion.

A foreign company wishes to establish a representative office in Vietnam must submit an application dossier for a license to the Provincial Department of Industry and Trade (DIT).

However, there are cases which the government agencies receiving the application would be different from department of industry and trade depending on the business lines carried out by the foreign entity.

Firstly, the trade service is bound in Vietnam’s Commitment in trade service in WTO but there are no existing specialized legislative documents:

When the trade service which the foreign entity provides does not fall under areas prescribed by specialized legislative documents in Vietnam, the licensing agency shall submit a written request for directions to the relevant ministries for opinions. The foreign entity shall wait for at least 15 working days for receiving a written notice of whether the license for establishment of the representative office is granted or rejected. This process not only extends duration of establishment of representative office but also rises risk of rejection.

Secondly, the trade service is not yet bound in Vietnam’s Commitment:

Where the scope of operation of the representative office is inconsistent with Vietnam’s commitments or the foreign trader is not located in the country or territory being party to treaties to which Vietnam is a signatory, there is an extra process in registration of representative office. The representative office shall be approved by relevant ministers, heads of ministerial agencies for establishment of the representative office.

Thirdly, trade services are supplied in foreign countries, but such does not exist in Vietnam

The foreign entity has to apply codes as following to Vietnam standard industrial classification system or CPC. If the foreign entity can not define a code, it is merely impossible to register the representative office.

In most of the cases, the foreign entity should consult with law firm in Vietnam whom lawyers have expertise in WTO laws, law on investment and experience in working with Vietnam state authorities, to prepare application right at the start and be ready to challenge the authorities when required to protect best interests of the clients.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Foreign Investment Practice or contact our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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Can you copyright your name?

That does not serve a public interest, so no, copyright law does not support that.

Consider: copyrighting names would mean that people that are charged with ethical violations, crimes, or just dirty play could not be discussed in the news. Exxon, for instance, could just copyright their name and then prohibit any news media from discussing them by name.

Copyright only protects “creative works”, such as books, news articles, TV shows, movies, etc. While it does protect invented elements, such as characters, it is not so granular that names are protected. Thus, I could write a book about a dentist from Colorado Springs whose name was Harry Potter or James Bond. Names are not really considered all that unique, after all, I happen to know that there are 22 other Todd Gardiners in the United States (and I have met seven of them).

Even if I was to write an article about JK Rowlings’ Harry Potter, I could certainly do so as non-fiction, making a scholarly or newsworthy report on the character (but not use this character in my own fiction, obviously).

So, because you would be infringing on the rights of people who share your name, infringing unfairly on free speech rights of press and the public, interfering with the public interest to discuss things by their name, and because a name is not a “creative work” under copyright law, you cannot get copyright protections for use of your name.

Similarly, you might register a Trademark for your name. But the rules for trademark registration require use in commerce (such as a brand name), and the restrictions only prohibit competing use in commerce. I can still say “Microsoft” or “Starbucks”, even though they are trademarked. I just can’t name a business with these names unless it is in a different class of business (e.g. Starbuck’s Plumbing would be legal).

The units of language: symbols, letters, numbers, words, common phrases, and the names of objects/people/places are all very hard to restrict because we are using them to communicate with each other.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers IP Practice or contact our IP lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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