Thứ Ba, 22 tháng 1, 2019

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

BY Pham Thuy Linh No comments

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.

Chủ Nhật, 20 tháng 1, 2019

Importance of Intellectual property protection

BY Pham Thuy Linh No comments

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.

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:

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.

Thứ Sáu, 18 tháng 1, 2019

What does the "fair use" concept of copyright mean?

BY Pham Thuy Linh No comments

What does the "fair use" concept of copyright mean? If I quote three short lines of lyrics on a t-shirt, am I in violation?

Fair use is a doctrine in the United States allowing for limited use of someone else’s copyrighted content without their permission.

It depends on these four factors:

-How transformative is your use? Transformative uses include criticism, news, research, education, and parody.
-How substantial of a portion of the original work do you want to use? The less, the better.
-How much creative content is in the original work? The less creative (or more factual), the better.
-How much will your use affect the market value of the original work? The less your use denies revenues to the copyright holder of the original work, the better.

Quoting three lines of lyrics on a t-shirt is a non-transformative use of a substantial portion of a creative work, presumably denying payment of licensing fees that the copyright holder would normally charge for use of their song on consumer merchandise. This is not Fair Use of the song in the opinion of this layman.

Thứ Hai, 14 tháng 1, 2019

Decision No. 33/QD-BCT of anti-dumping investigation for some products of aluminum, alloy or non-alloy originated from China (AD05).

BY Pham Thuy Linh IN , , , , No comments

On Jan 10th, 2019, Trade Remedies authority of Vietnam (Ministry of Industry and Trade) has promulgated Decision No. 33/QD-BCT on investigation into imposition of anti-dumping measures for some products of aluminum, alloy or non-alloy which are in bar, stick and shape form originated from China (Case number AD05).

Summary of the case:
The requesting party is four (04) shaped aluminum manufacturers representing the domestic industry, including AUSTDOOR ALUMINUM JOINT STOCK COMPANY, TUNG YANG COMPANY LIMITED, SONG HONG ALUMINUM JOINT STOCK COMPANY (SHALUMI) and MIENHUA GROUP JOINT STOCK COMPANY. 

Scope of investigation:
The imported products are alleged of dumping are some products of aluminum, alloy or non-alloy which are in bar, stick and shape form, with the HS codes of: 7604.10.10; 7604.10.90; 7604.21.90; 7604.29.10; 7604.29.90 from China. The investigating period to determine dumping behaviour is from Jan 1st to Dec 31st, 2018. The investigating period to determine the damages of the domestic manufacturing industry is from Jan 1st, 2015 to Dec 31st, 2018.

The alleged dumping margin:
Imported products from China subject to anti-dumping measures imposition investigation are alleged with specified dumping margins rate of 35,58%.
Damages and causal relation
The products alleged of dumping are considered the main cause of significant losses in the domestic manufacturing industry, reflected in the decline in the indexes such as utilization capacity, inventory, profit, and dynamic price, price pressure…
Registration for interested party
According to regulation of Article 74 of the current Law on Foreign Trade Management of Vietnam, Interested parties include:
-Overseas organizations and individuals that produce and export products under consideration to Vietnam;
-Importers of products under consideration;
-Foreign associations whose majority of members are organizations and individuals producing and exporting products under consideration;
-The Government and competent authorities of the exporting country of product under consideration;
-Organizations and individuals that submit the application for the trade remedies;
-Domestic producers of like products;
-Domestic associations whose majority of members are producers of like products;
-Other organizations and individuals that obtain legal rights and interests related to the investigated cases or facilitate the investigation or representative organizations of protection of customer rights.
As such, an organization or individual shall register and be approved by the investigating authority to become an interested party.
The organizations, individuals can register to be recorded as the related parties in this case with the Investigation Authority by the way sending the application according to the application form for the related party provided in Appendix No. 1 attached the Circular No.06/2018/TT-BCT. Deadline for registration of the interested party is before 5p.m on Feb 28th, 2019.
 The investigation questionnaire
Within 15 days after the issuance of the investigation decision of the Minister of Industry and Trade, the investigating authority shall send the investigation questionnaire to the following subjects:
-Producers of similar domestic goods;
-Foreign producers and exporters exporting goods subject to anti-dumping and countervailing investigation into Vietnam which the investigating authority knows;
-The representative in Vietnam of the government of the country producing and exporting goods subject to anti-dumping and countervailing investigations;
-Importers of goods subject to anti-dumping and countervailing investigations;
-Other related parties.
Within 30 days after receiving the investigation questionnaires, the interested parties must provide written replies to all questions in the questionnaire. In case of necessity or there are written requests for extension with reasonable reasons from the interested parties, the investigating authority may extend the time limit but not more than 30 days.
Please be informed that the time limit for the anti-dumping measures imposition investigation shall be within 12 months from the day on which the decision on investigation is issued, with a possible extension up to 6 months if necessary. Interested parties could authorise law firm in Vietnam with international trade and anti-dumping specialization to respond to authorities in Vietnam.

Thứ Năm, 10 tháng 1, 2019

How do copyrights and patents differ?

BY Pham Thuy Linh IN , , , , No comments

What they cover
Copyrights cover “original works of authorship fixed in a tangible medium of expression.” The word “authorship” might be misleading to a layperson, insofar as it suggests strictly written works. It’s more general: audio, video, dance choreography, sculpture, architectural works, and others are also covered.
Patents cover… more specific things. They can cover concrete things, like machines or chemicals. They can cover less tangible things, like methods of doing stuff (like methods of manufacturing a machine or chemical). In some cases they can have the practical effect of covering algorithms.
(That last sentence might be like nails on a chalkboard to some patent-educated folks, because technically pure algorithms aren’t patentable. I don’t think that discussion is illuminating in the context of this basic, foundational question.)
How to get them
Getting a copyright is easy. As soon as the metaphorical pen leaves the metaphorical paper, the author has rights. If you write a poem on a cocktail napkin, you instantly hold the copyright on your poem. That’s true even if your poem is identical to a poem someone else wrote. In other words, there’s no “novelty” requirement for copyrights. It must only be original, in the sense that you came up with it through your own creative process.
It’s a lot harder to secure patent rights. You first draft a patent application and send it to the patent office. That application is very closely scrutinized and researched by a patent examiner. The patent examiner will determine whether your invention is novel (and some other requirements).
Typically, the process takes many years to successfully navigate. It’s also very costly. There are also filing fees with the patent office over the lifetime of the application, typically amounting to a grand or two but possibly more.
How long they last
A patent, if granted, lasts 20 years from the date the application was filed.
A copyright lasts longer. How long depends on whether the author is a person (or people), or if the work is a “work for hire” from a corporation.
If the author is a person or people, then the copyright lasts for 70 years after the death of the last living author. If it’s a work for hire (or an anonymous or pseudonymous work), then it’s the shorter of 95 years from first publication, or 120 years from creation.
It’s actually a little more complicated than that, because Congress had monkeyed around with the duration of copyrights. In practice, there are different rules based on the date the work was created or first published. But what I said above applies to works created today.
What they prevent
If I have a patent, I can stop anyone else from making, using, selling, or offering to sell my patented invention.
If I have a copyright on my work, I can stop anyone else from copying, distributing copies, and creating derivative works of my work. For those works that can be publicly performed or displayed, I can stop others from public performance or display.
Both of these categories of rights are subject to limitations and defenses. I won’t go into what they are, especially for copyrights.


Thứ Ba, 8 tháng 1, 2019

Important Matters on Intellectual Properties Rights Registration in Vietnam

BY Pham Thuy Linh No comments

In the process of development of global business, the growth of multinational corporations or business will help individuals and companies to bring their products to the world. In addition to bringing their products to customers, the protection of intellectual property rights for products created is extremely important and necessary. We would like to highlight important matters when registering for intellectual property rights protection in Vietnam.

First, in order to be able to register for protection of intellectual property rights, the protected product must meet all conditions to be protected under the provisions of the Intellectual Property Law of Vietnam.

After meeting all of conditions for protection of intellectual property rights, the owner should pay attention to the procedures for registering intellectual property rights. According to the Intellectual Property Law 2005, the time of intellectual property rights to copyright is when products are created and expressed in a certain material form without needing to register. However, industrial property rights for inventions, industrial designs, layout designs, trademarks, geographical indications are established on the basis of a decision to grant protection titles by competent state agencies rights under the registration procedures prescribed in the Intellectual Property Law or recognition of international registration under the provisions of international treaties to which the Socialist Republic of Vietnam is a member; for well-known trademarks, ownership is established on the basis of use, regardless of the registration procedure. Therefore, in order to be able to establish their intellectual property rights for products created, the owner needs to register for product protection in accordance with regulations, the order given by the Law on Intellectual Property in Vietnam.

In addition to the prescribed registration procedures, the owner should pay attention to the time of filing the application for protection, and it is suggested to submit the application as soon as possible. Under the provisions of the Intellectual Property Law, in cases where many applications forinventions are identical or similar, industrial designs are identical or not significantly different from each other, the protection title shall be granted only for an invention or industrial design on a valid application, the earliest priority date or filing date shall be among the applications that meet the conditions for being granted a protection title. In the case of multiple applications by different people registering marks that are identical or confusingly similar to each other for products or services that are identical or similar to each other or in the case of multiple applications of the same those who register identical marks for identical products or services, the protection title is only granted to the trademark in the valid application with the earliest priority date or filing date among the applications that meet the requirements sued to be granted a protection title. In case there are many applications for registration as stipulated above and all meet the conditions to be granted a protection title and have the same priority date or the earliest filing date, the protection title will only be granted to the subject of a single application of those applications as agreed by all applicants; if no agreement is reached, the corresponding objects of those applications are refused the protection certificate.

Therefore, in order to protect their intellectual property rights, the owner needs to meet all conditions for the product, in addition to necessary procedures as prescribed by law and promptly  apply for a certificate of protection for the product. The protection of products will help individuals and companies gain competitive edge during their commercial operation, in addition to avoiding the risks of being infringed upon intellectual property rights.

ANT Lawyers with a team of experienced lawyers, IP consultants and IP agent in Vietnam in the field of Intellectual Property will help customers implement procedures for registering intellectual property rights in the most effective way

Legal Regulations in Purchasing Real Estate in for Foreigners in Vietnam

BY Pham Thuy Linh No comments

Vietnam has become a better place for foreigners to visiting and staying. Many chose Vietnam as home and they come to Ho Chi Minh City, Ha Noi, Da Nang, Phu Quoc, Nha Trang… to buy real estates for living. Many foreigners consider seeking understanding and with the advisory of their real estate lawyers in Vietnam to purchase the property under their name for best interest protection. There are a number of foreigners seek to cooperate with local Vietnamese under investment agreement to invest in properties. It has always been suggested the buyer or investor to receive legal advice from real estate lawyers and law firms in Vietnam before committing the investment to a certain extent.
According to the Law on housing 2005, foreign organizations and individuals investing in construction of houses for sale and lease in Vietnam have the right to own the houses in Vietnam. However, according to the provisions of the Law on housing 2014, the house owners expand and include foreigners being investors building the houses under investor projects, foreign organizations operating in Vietnam and foreign individuals being allowed to enter Vietnam under the provisions of the Law on Entry, Exit, Transit and Residence of Foreigners in Vietnam; and are not entitled to diplomatic privileges and immunities.
Under the provisions of the Law on housing 2014, foreign organizations and individuals are allowed to own apartments, individual houses (villas and townhouses) in commercial housing projects. The total number of foreign individuals/organizations owned does not exceed 30% of an apartment building or does not exceed 10% or 250 houses of a housing project. Foreign individuals may own houses for up to 50 years and are allowed to extend for no more than 50 years. Foreign organizations own the houses according to the time limit on the Investment Registration Certificate and the extension period. During the time of owning the houses, foreign individuals are allowed to sublease, but foreign organizations are not allowed to sublease the houses.
For foreign individuals/organizations, when buying the houses in Vietnam, it is necessary to have a well drafted sales contract for purchase and sale of the houses because all rights and obligations related to the purchase, sales and ownership of houses are regulated in the contract. Therefore, the buyer should consider the contract carefully, usually with the help of real estate lawyers whom understand Vietnam laws before signing, in order to protect their legitimate rights and interests.
The foreigner when buying and selling the houses, especially off-plan house, need to also pay attention to the regulations on payment schedule in the contract. According to Article 57 of the Law on housing 2015, the payment in the purchase, sales, lease sales of the off-plan realestate in Vietnam is carried out in installments, and the first time must not exceed 30% of the contract value, the next times must be in accordance with the construction schedule, however, not exceeding 50% of the contract value when not handed over when the buyer is an enterprise with foreign investment, not exceeding 70% the value of contract, if the buyer is the foreigner individual the payment is not exceed 50% the value of the contract before handing over the house to the buyer. Until the buyer is issued with a certificate of land use right, ownership of houses and other assets attached to the land, the buyer shall pay no more than 95% the value of contract.
Foreigners in Vietnam need to be assisted to be familiar with the laws relating to the purchase and sale of real estate in order to protect their legitimate rights and interests when participating in transactions in Vietnam. It is important that the foreigners consider using the services of law firm in Vietnam specializing in real estate to advise and help manage the transaction.