How to Obtain Business Registration Certificate in Vietnam?

How to establish a joint stock company or limited liability?

Every organization and individual wishing to set up a foreign owned company in Vietnam shall need to meet some specifics conditions as promulgated under the Law on Investment and Law on Enterprise.  In specific areas being considered as conditional investment, the investor shall also need to consult with the law governing the area of investment. Once the investment registration certificate is completed, the investor has the obligation to apply for enterprise registration.

The procedure to register for a certificate of enterprise registration of a joint stock company or limited liability with two or more members are herein mentioned:

Dossiers:

i) Application form for enterprise registration

ii) The company’s charter.

iii) A list of founding shareholders and shareholders being foreign investors/ a list of capital contribution members.

iv) Valid copies of:

Copies of the ID card or other ID papers of founding shareholders and foreign investors/members being individuals; list of authorized representatives of foreign shareholders being organizations.

Decision on establishment, certificate of business registration, or an equivalent document of the organization and the letter of authorization; the ID card or other ID papers of the authorized representatives of founding shareholders and foreign investors being organizations.

If shareholders are foreign organizations, the copy of the certificate of business registration or an equivalent document must be notarized, legalized and authenticated.

The Certificate of Investment registration of the foreign investors as prescribed by the Law on Investment.

State Authority: Business registration office of the province where the enterprise’s headquarters is situated.

Period: within 03 working days from the full receipt of the dossiers

Result: Business registration office shall issue the certificate of enterprise registration or if the application is not satisfactory, business registration office shall inform the applicant of necessary revisions and supplementation to company.

In general, Vietnam government encourages foreign direct investment.  If the investor faces challenges at state authority, whom do not issue notification or request of supplementation to the application for enterprise registration, the investor cold lodge a complaint as prescribed by regulations of law on complaints and denunciation to the state authority to protect its right in doing business andinvestment in Vietnam. A law firm in Vietnam with expertise in both business registration and dispute resolution could assist the investor in the process.

The enterprise is entitled to do business from the issuance date of the certificate of enterprise registration. For conditional business lines, enterprises are entitled to engage in conditional business lines if they satisfy all conditions and are capable to maintain fulfillment of such conditions throughout their operation

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Are there any differences in filing a Trademark application in Vietnam as compared to your home country?

The legal protection of Trademark is based on the principle of territoriality. That means each nation is free to regulate the use of intellectual property on its own territory. For instance, it can only grant protection titles to the domestic brands while denying foreigners. In order to overcome such problems, nations around the world have been reaching and signed a number of international treaties which was built on the principle of territoriality. There was a remarkable achievement that nations established certain rules that all member States must respect. Member States shall protect trademarks of companies of other member States as if they were his own citizen (so called principle of national treatment). In other words, assuming that Vietnam and France are member States, Vietnam is bound to treat French enterprises the same rules that it applies to Vietnamese firms. As a consequence, there are not any differences in principle when filing a Trade mark application in Vietnam as compared other State members. However, practically, for filing a Trade mark application in Vietnam, there might some additional requirements or language of necessary documents as following:

1.Right to register marks: According to Article 89 Law on intellectual, foreign individuals not permanently residing in Vietnam and foreign organizations and individuals without production or business establishments in Vietnam could not file applications for Trademark registration by themselves but through their lawful representatives in Vietnam by POA (Power of Attorney).

2.Solving the language barrier: Foreign individuals permanently residing in Vietnam and foreign organizations and individuals whose production or business establishments are in Vietnam could file applications for Trademark by themselves. However, the language barrier might be the problem because Applicants shall fill a standard form in Vietnamese and submit this form to the NOIP accompanies by documents evidencing the registration right, the priority right or other documents supporting the application. All these documents could be made in another language but shall be translated into Vietnamese at the request of the State administrative body for industrial property rights

To be accepted, the sample of the Trademark must be clearly described by words in order to clarify elements of the mark and the comprehensive meaning of the mark, if any; where the mark consists of words or phrases in a foreign language, such words or phrases must be translated into Vietnamese.

3.Time for request your priority claim: Priority claim shall not be automatically recognized in Vietnam, therefore the claim for the priority right must be clearly stated in the application accompanied by a copy of the first application certified by the first IP office.

4.Applying “First to use” or “first to file” principle: In Vietnam, “first to file” principle is applied, that is far cry from so-called “first to use” countries. The “first to file” principle means rights in a trademark generally are acquired only through registration therefore a trademark owner can apply to Trademarkregistration without having used it anywhere and at any time. Kindly be advised that if you come from the United States, the Philippines, Australia, and New Zealand where trademark rights are generally acquired through use.

All in all, these treaties built up a harmonized system that benefits the international firms to protect their Trademark outside of the home nation. The local qualified Intellectual property Agent might support the international firms in overcoming the barrier of language and these additional requirements.

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Australia Terminated Investigation, Not Imposing Anti-Subsidy Tax on Galvanized Steel and Pressed Aluminum from Vietnam

According to Department of Trade Remedies (Ministry of Industry and Trade), 2 Vietnamese products exported to Australia which are pressed aluminum and galvanized steel have been terminated investigation and will not subject to anti-subsidy tax by the Australian anti-dumping commission (ADC).

In August and October 2016, ADC initiated 2 anti-dumping and anti-subsidy investigations on pressed aluminum and galvanized steel imported from Vietnam.

Following the investigation, in June and August 2017, ADC published the final reports of two cases in which ADC decided to terminate the investigation and not apply anti-subsidy tax on goods from Vietnam in both cases.

Specifically, in the case of pressed aluminum, Vietnam is accused of subsidizing businesses in 03 programs related to tax incentives.

After the investigation, ADC determined that: 01 of the 03 Vietnamese companies agreeing to cooperate with ADC did not receive any incentives from the above programs. The remaining 02 enterprises and other producers/exporters received subsidies but the margin of subsidies is negligible.

Therefore, ADC decided to terminate the investigation for Vietnam.

In the case of galvanized steel, Vietnam is alleged to subsidize businesses in 19 programs involving tax incentives, investment incentives, support programs and trade promotion programs.

After the investigation, ADC determined that: Vietnamese companies agreeing to cooperate with ADC only receive benefits from 03 of the 19 programs mentioned above, and the amount of these subsidies is negligible; the level of subsidy offered to other producers/exporters is also negligible. Therefore, ADC decided to terminate the investigation for Vietnam.

In terms of the anti-dumping investigations, in the galvanized steel case, the plaintiff alleged that the “special market conditions” is exsisted in the plated steel sector of Vietnam. The plaintiffs argue that Vietnam has to import most of its raw materials to produce galvanized steel, which is hot rolled coil (HRC). At the same time, the price of HRC in the exporting country, due to the subsidy, has been distorted (lower than it should have been).

Vietnam imports mainly this material, so galvanized steelprices in Vietnam are also deviated as a result, and this should be considered as a “special market condition” in Vietnam. However, after the investigation, Australia concluded that there was no special market condition in the plated steel industry of Vietnam.

According to the Ministry of Industry and Trade, the ADC’s conclusion to terminate the investigation, not apply anti-subsidy measures in two cases and the ADC concluded that no special market situation exists for the market of plated steel in Vietnam is positive and successful results for the Government and enterprises of Vietnam.

This final outcome is a positive precedent for future cases, as it is the first time Australia investigated anti-subsidy and “special market conditions” on Vietnam.

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What is a typical strategy for filing software patent applications worldwide?

If you want to patent your software worldwide, you have a lot of filing ahead of you. Generally speaking, the filing needs to be done in a relatively timely manner too, so missing deadlines happens routinely. I would suggest consulting with an intellectual property (IP) attorney who can help you meet all of the necessary requirements because they can be tricky.

Filing with the patent cooperation treaty (PCT) really will only give you an opinion as to whether your software can be patented in the countries that signed the treaty. This can be helpful because searching all of the countries on your own would be troublesome. However, after the search, you will still be without a patent.

So, if you file with the PCT for an opinion first, you will still be left with all of the actual patent filing to do. You will then need to file for any foreign patents that you wish to obtain. Each patent will have separate requirements.

Again, my suggested strategy would be to consult with an attorney. An experienced intellectual property attorney will be able to search for any conflicting patents and will also be able to file your patent applications for you. You will have to pay your attorney a fee, though, and I know that this is not ideal. But, it is possible to save money on attorney fees.

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How do patents work for cosmetics?

How do patents work for cosmetics? What can be done if there is already a patent that exists for my idea?

This is an American perspective. Patents for cosmetics do not work very well.

A lot of the applications I see are mostly marketing proposals “we are using all natural organic ingredients…” to do what one would expect these ingredients to do. Well, that’s not patentable subject matter under section 101 of the Patent Act because it is directed to a natural compound that does not perform a surprising result.

It’s easy enough to get around this. You can add a single non-naturally occurring preservative, but then you are not selling something, “using all natural organic ingredients…” and that messes with your marketing.

The next problem is that you need to have at least one ingredient that has never been used in cosmetics before. This is really hard to do because old patent applications in this field list thousands of ingredients that can be combined in all quantities from 0.1 to 99%. Those applications render almost any combination of “all natural organic ingredients” either anticipated or obvious.

Now, if you do have a new non-naturally occuring active ingredient, then, of course, the patent system, in conjunction with the exclusivity provided in some instances with the FDA works really well. So well, that other countries have started modeling the American system. 

You may want to have a patent attorney take a look at the other patents that exist in your space. It is possible that you may be able to capture some value from those patent owners.

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