Stricter requirements adopted for documents submitted to Vietnam IP Office
In various ASEAN countries, under current practice, documents submitted to the national IP Offices signed by a person (e.g. Deputy Director, Trademark Administrator, etc.) of an entity/organization may be accepted as legitimate ones. The IP Office of Vietnam (“IP Vietnam”) used to accept such documents for IP filings in this country. Previously, documents signed by any representative internally approved by IP holders were all accepted without any requirements to prove the signing authority of the signatory. However, after IP Vietnam released its Notice No. 13822/TB-SHTT of 23 November 2020 which tightened requirements of the signing authority, things are not easy as they were.
What needs to be remembered?
(i) All documents (e.g. Power of Attorney, Agreements, Declaration, Affidavit, etc.) to be submitted to the IP Vietnam must now be signed by the legal representative(s) of entity/organization (acceptable titles include without limitations to CEO, Director, Chairman or President).
(ii) Documents signed by others (e.g. Assistant Secretary, Authorized Counsel, Attorney in fact, Authorized Signatory, Proxy, Officer, etc.) used to be accepted, but are now unacceptable. For such signed documents to be accepted, an additional document (e.g. a Letter of Authorization) proving that the capacity of the signatories to represent the applicants or owners is required for submission to the IP Vietnam.
(iii) If no Letter of Authorization as stated in Point (ii) above is available to prove the capacity of the signatories, another alternative solution may be taken, i.e. the applicants or owners can have documents that were signed by other signatories notarized by a notary public, and the notary’s certification should indicate that the signatories are authorized to sign the relevant documents.
Obviously, the documents submitted to the IP Vietnam have now placed under more stringent supervision since, under the IP Vietnam’s perspective, this new practice aims at (i) ensuring the validity of submitted documents and (ii) preventing potential disputes/conflict arising from uncertified person who has signed the documents, particularly, those relating to IP transaction and licensing. Many IP practitioners consider the above change of practice will trigger more difficulties and challenges for IP holders, particularly foreign holders while many regions and jurisdictions are still in work-from-home mode due to negative impacts of Covid-19. In addition, it remains questionable on whether it is accepted for the IP holders to refer to the old documents (e.g. a Power of Attorney) which were previously submitted to and accepted by the IP Vietnam, but such old and previously accepted documents are signed by those who are not the legal representatives.
In details, Notice No. 13822/TB-SHTT dated 23 November 2020 on the application of regulations concerning persons with legal status to sign documents on behalf of the applicant in the registration procedure for establishment of industrial property rights and the related procedures has the following noteworthy points:
1. For individual applicants:
The representative for the applicant is the legal representative or the one who is authorized by the applicant through a power of attorney. The signing of the power of attorney is done by that individual himself/herself and the authorized party and the authorization must comply with the provisions of Circular No. 01/2007/TT-BKHCN.
2. For organization applicants:
2.1. In case of the representative for the applicant as “the legal representative of the applicant”
a) In case the person who signs the Application and the transaction papers has such the titles as Chairman of the Members’ Council, Chairman of the Board of Directors, President, General Director, Director, the signer only needs to certify that he/she is the legal representative of the applicant through his/her signature and seal (as prescribed, if any);
b) In case the person who signs the Application and the transaction documents has such other titles as the deputy of the titles mentioned in item a) above, the titles of Chief of Office, Head of Department or Deputy of these titles, etc., or titles of foreign organizations such as attorney in fact, authorized signatory, proxy, officer, etc., the applicant must provide a document which proves that the signer is authorized by the legal representative of applicant and which is sealed (as prescribed by law, if any).
2.2. In case of the representative for the applicant as “a person belonging to an organization authorized by the legal representative”
In case the person who signs the Application and the transaction papers is a person belonging to an organization authorized by the legal representative, in addition to complying with the provisions on legal representative specified in Section 2.1 above, the applicant must also provide a document to prove such authorization.
2.3. In case of the representative for the applicant as an industrial property agent
Industrial property agents shall represent the applicant through a power of attorney. Accordingly, the person signing the power of attorney on behalf of the applicant (the authorizing party) must meet the requirements specified in Section 2.1 or 2.2 above and must comply with the provisions of Circular No. 01/2007/TT-BKHCN.