US Anti-Dumping and Countervailing Duty Petitions of Tire Products From Vietnam

On May 13, 2020, The United States Department of Commerce (“DOC”) has received an investigation request for anti-dumping and countervailing measures against passenger and light truck tires (“PVLT tires”) originating from Korea, Taiwan-China, Thailand and Vietnam. The mandatory respondents being US importers have also consulted with anti-dumping and countervailing duty lawyers in Vietnam and US to prepare for the investigation cooperation.

 

In this case, the plaintiff alleges that the tires under investigation were dumped and subsidized into the United States market, causing significant damage to the domestic manufacturing industry. In 2015, the same petitioner succeeded in securing anti-dumping and countervailing duties on PVLT tires from China.

The scope of these investigations is passenger vehicle and light truck tires. Passenger vehicle and light truck tires are new pneumatic tires, of rubber, with a passenger vehicle or light truck size designation. Tires covered by these orders may be tube-type, tubeless, radial, or nonradial, and they may be intended for sale to original equipment manufacturers or the replacement market. The products covered by the investigations are currently classified under the following Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 4011.10.10.10, 4011.10.10.20, 4011.10.10.30, 4011.10.10.40, 4011.10.10.50, 4011.10.10.60, 4011.10.10.70, 4011.10.50.00, 4011.20.10.05, and 4011.20.50.10.  The scope could also include tires entering under HTSUS subheadings 4011.90.10.10, 4011.90.10.50, 4011.90.20.10, 4011.90.20.50, 4011.90.80.10, 4011.90.80.50, 8708.70.45.30, 8708.70.45.46, 8708.70.45.48, 8708.70.45.80, 8708.70.60.30, 8708.70.60.45, and 8708.70.60.60.

Petitioner alleges the following dumping margins: 45.95% to 195.20% for South Korea, 21% to 102% for Taiwan, 106.4% to 217.5% for Thailand, and 14.73% to 33.06% for Vietnam. The petitions also detail numerous government subsidies benefitting Vietnamese tire producers, including loans, tax breaks, and grants. PVLT tire imports from these four countries shot up nearly 20% from 2017 to 2019, reaching 85.3 million tires, valued at 4.4 billion dollars, last year.

According to data from the United States International Trade Commission (“USITC”), the export value of Vietnam’s investigated products to the United States market reached 12.1 million dollars in 2019, accounting for about 6.7% of total United States imports of this product.

In Vietnam, the product under investigation is a product that has been warned by the Ministry of Industry and Trade of risks of foreign investigation by applying trade remedies measures from July 2019 with a high level of warning. Therefore, in the past time, the Ministry of Industry and Trade has actively coordinated and worked with associations and exporters to the United States to actively capture information and respond in case of initiating an investigation. Under United States regulations, the DOC will consider initiating an investigation of the case within 20 days of receiving it. In the event that the DOC decides to initiate an investigation, the Ministry of Industry and Trade of Vietnam will closely coordinate with export associations and enterprises in investigating the case and have timely support and treatment measures to protect the legitimate rights and interests of Vietnamese enterprises.

Vietnam international trade lawyers in competition, and anti-dumping practice will need to be involved with the process including data collection and possibly initial drafting of questionnaire responses in cooperation with US anti-dumping and countervailing duty lawyers to defend the case.

 

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Patent Registration Procedures in Vietnam

Patent ownership of an invention or a utility is only established by the registration procedure, and in accordance with the scope of protection defined in each patent in Vietnam.

 

Once a dispute arisen, without other evidences, the patent is the only and the most important proof to prove the ownership. Therefore, it is advised that filing a patent for an invention or a utility model shall be a prior prevention of an infringement.

 Under the laws on Intellectual Property of Vietnam:

“Invention” means a technical solution in the form of a product or process which is intended to solve a problem by application of natural laws.

Unless an invention is common knowledge, it shall be protected in the form of the grant of a utility solution patent (or a utility model) when it satisfies the following conditions:

-It is novel

-And it is susceptible of industrial application.

With highly professional staff and great experience in IP aspect in Vietnam, ANT Lawyers would like to support you in filing a Patent on an invention or a utility in Vietnam.

1. Our services in Patent for invention and Utility model

Our services in Patent field include:

-Searching, provision of professional opinions and advice in relation to registering ability of Patent/Utility model;

-Preparation, drafting the description and necessary documents, filing and prosecution of applications Patent/Utility model;

-Maintenance;

-Amendment;

-License;

-Assignment;

-Opposition against proceedings;

-Appeal;

-Cancellation;

-Invalidation;

2. How to file a patent in Vietnam

Inventors or Organizations or individuals who have supplied funds and material facilities to inventors in the form of job assignment or hiring have the right to file patent application in Vietnam.

An invention shall be protected in Vietnam when it satisfies the following conditions:

-Novelty;

-Inventive step;

-Industrial applicability;

3. Required information and documents

For the purpose of filling the patent application in Vietnam, the following documents will be required:

-Full name and address of applicant(s);

-Full name, address and nationality of inventor(s).

-Original Power of Attorney (POA) from the Applicant(s)

-Copy of the description, drawings and abstract of the patent application in English (in Word format) and/or the amended description, claims (if any);

-Certified document for claiming priority right (if any).

Note: The POA must be signed by the applicant or a duly authorized representative on behalf of the Applicant and no further notarization or legalization is required.

4. Patent Examination Procedure

The patent application will be examined by National Office of Intellectual Property of Viet Nam (NOIP) with Patent Examination Procedure as below:

-Formality examination: Under Intellectual Property Law of Vietnam, the above application will be examined as to form within one [01] month as from the filing date or date entering the national phase. If the invention application meets the requirements as to form, the NOIP will issue a decision of formality acceptance and then the application will be further processed. Publication of the Patent Application is within 02 months from publication date of 19 months from priority date.

-Substantive Examination: Substantive Examination does not automatically proceed from filing, and the applicant must request for substantive examination by 42 months from the priority date, or by 36 months if the request is for a utility model, otherwise the application will be considered as withdrawn.

-Notification of the Substantive Examination Results.

-The Decision of Refusal or Request to pay fee.

-Issuing the Patent of Invention.

5. Patent Term and Maintenance

Invention patents shall each have a validity starting from the grant date and expiring at the end of 20 years after the filing date. The owner of a Patent for Invention or Patent for Utility Model is required to pay annuity fees in order to maintain its validity.

If you are looking for an experienced IP services in Vietnam to help you with your IP application, you should visit ANTLawyers.vn. Our attorneys have experience with the IP process and will work closely with you as you apply for your IP.

 

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How Pilot Program Using Mobile Money for Payment is Regulated?

With the development of the information technology industry, there is a trend to simplify the process and procedures for making transactions making it becomes easier, faster and more convenient for users. Hence mobile money has become a new trend in transferring money, making payment in many countries.

 

Pilot Program Using Mobile Money for Payment in Vietnam

To develop non-cash payments, increase access and use of financial services, especially in rural, mountainous, remote, border and island areas of Vietnam, as well as taking advantage of infrastructure, data, telecommunications networks, reducing social costs to develop, expanding non-cash payment channels on mobile devices, bringing convenience to users, on March 9, 2021, the Vietnam Prime Minister issued Decision No. 316/QD-TTg on approving the pilot implementation program of using telecommunications accounts to pay for goods and services with small value (Mobile – Money).

The pilot subjects are enterprises that have a license to provide electronic wallet payment intermediary services and a license to establish public mobile terrestrial telecommunications networks using radio frequency bands or the subsidiary is licensed by the parent company to establish a mobile public ground telecommunication network using radio frequency bands and allows the use of telecommunications infrastructure, networks and data.

Individual customers who register and use the Mobile-Money service must provide an Identification Card (ID)/ Citizen Identification/ Passport that coincides with the customer’s mobile subscriber number registration information and Identification and authentication piloted by enterprises in accordance with the Government’s regulations on mobile subscriber registration; and the number of mobile subscribers must have the period of activating and using continuously for at least three consecutive months up to the time of registering to open and use Mobile-Money service. Each customer is only allowed to open one Mobile-Money account at each pilot enterprise.

The pilot implementation is applied nationwide, in which the pilot enterprise must give priority to the pilot implementation of Mobile-Money service in rural, mountainous, remote areas, Vietnam’s borders and islands.

The pilot enterprise is only allowed to provide Mobile-Money service to transfer money and pay for legal goods and services in Vietnam in accordance with the current law to serve the needs of daily life; the pilot implementation of Mobile-Money service only applies to legal domestic transactions in accordance with Vietnamese law provisions in VND, not to make payment/ remittance for goods and services provided across borders.

The pilot implementation period is set to be two years from the time the first enterprise conducting the pilot is approved for pilot implementation of Mobile-Money service. Transaction limit must not exceed 10 million VND/month/Mobile-Money account for total transactions: withdrawal, money transfer and payment.

Financial and banking lawyers at ANT Lawyers, a law firm in Vietnam with offices in Hanoi, Ho Chi Minh City and Da Nang will always follow up with new developments in regulation and provide clients with update.

 

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How to Draft Contract for Licensing of Industrial Property Rights in Vietnam?

Licensing of industrial property rights is one of the legal measures to transfer technology. In accordance with Law on Intellectual Property, licensing of an industrial property rights means permission by the owner of such industrial property object for another organization or individual to use the industrial property object within the scope of the owner’s right.

 

Licensing of industrial property rights must be established in the form of a written contract. There are three types of industrial property object licence contracts: Exclusive contract; Non-exclusive contract; Industrial property object sub-licence contract.

Exclusive contract means a contract under which, within the licensing scope and term, the licensee shall have the exclusive right to use the licensed industrial property object while the licensor may not enter into any industrial property object licence contract with any third party and may use such industrial property object only with permission from the licensee.

Non-exclusive contract means a contract under which, within the licensing scope and term, the licensor shall still have the right to use the industrial property object and to enter into a non-exclusive industrial property object licence contract with others.

Industrial property object sub-licence contract means a contract under which the licensor is a licensee of the right to use such industrial property object pursuant to another contract.

What is the advantages and the disadvantages of licensing contract?

Firstly, for licensor, licensing can be used to access new markets that are not easily accessible. By allowing the licensee the right to market and distribute the products, the licensor can more easily enter the market; Licensing contract may stipulate measures for the licensor has the right of improvements, technical know-how and related products that will be developed by the licensee during the valid term of the contract. However, the licensor may not always claim these rights, and some countries have strict restrictions on including these types of terms in the licensing contract; Licensing is necessary if the product only sells best when combined or sold for use with another product; Last but not least, the licensing contract allows the licensor to hold ownership of the intellectual property and at the same time receive licensing fees, in addition to the profits gained from self-exploitation of such assets from products or services sold or provided by that party.

Besides the advantages, the licensing contract also has some disadvantages for the licensor. The licensee may become a competitor of the licensor. The licensee may make the licensor make less remuneration than the business losses resulting from the competition of the new competitor; The licensee may unexpectedly request contributions, for example, for technical assistance, human resource training, additional technical data, etc. It is important that the licensing contract must clearly stipulate the rights and obligations of the parties, whereby any disagreements that occur in the future can be resolved quickly and effectively; The licensor’s revenues depend on the skills, capabilities and resources of the licensee. This dependence is even greater in the case of exclusive licensing. The provisions of minimum wage and other provisions may be provided to avoid this, but this is still a concern.

Secondly, for the licensee, the advantage of a licensing contract is allowing access to technology that has been developed or is available to apply for helping businesses access to the market more quickly; Small companies may not have the resources to do and carry out the research to supply new and higher quality products. The licensing contract allows enterprises access to technical advances that are difficult to achieve by other measures; Licensing may also be necessary to maintain and develop an established market position but be threatened by new designs or production methods. Access to new technology through a licensing contract is the best way to overcome this challenge; There may be many opportunities to get a license when combining with existing company technologies can create new products, services and opportunities in the new market.

Regarding the disadvantage to the licensee, the licensee may have to make financial commitments to technology that is “not yet ready” for commercial exploitation, or need to modify the technology to meet its business needs; An intellectual property licensing contract may result in additional costs for the product. Many technologies integrated into products can create products with high technology content but are very expensive when publishing to market; Licensing may create technological dependence on suppliers, who may not extend the licensing contract and negotiate a licensing contract with other competitors to limit the market or to limit exploitation activities which was allowed in accordance with licensing contract.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

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Complaints and Settlement of Complaints on Registration of Industrial Property

According to the regulations of law on complaint, complain means a citizen, agency, organization, cadre or civil servant requests a competent agency, organization or person to review an administrative decision or act of a state administrative agency or competent person in such agency when having grounds to believe that such decision or act is unlawful and infringes upon their rights and lawful interests. Whereby, the decision or notification of National office of Intellectual property in Vietnam related to an industrial property subject is also an administrative decision and may be complained if the rights and benefit of interested parties to that industrial property subject are effected.

 

Industrial design in Vietnam

Who have right to file complaint in intellectual property registration?

According to current regulation of law on intellectual property regarding the complaint of industrial registration, the subjects who have the right to complain to intellectual property authority or file petition at the court include all organizations and individuals having the rights and benefit directly relate to the decision or notification of application on industrial property application.

How long is the timeline to file complaint in intellectual property registration?

The first complaint is conducted within ninety (90) days from the date when the persons who receive or know about the notification on proceeding the industrial property application. The second complaint is within thirties (30) days from the date of expired the duration for settlement of the first complaint.

What is complaint filing procedures in intellectual property registration?

Upon the expiry of the time limit for settling the first complaints and the complaint was not settled or the parties did not agree to the decision on settling the state authority, then complainant, the person who has the directly related right and benefits shall have the right to complain to Minister of Ministry of Science and Technology – MOIST (the second complaint) or file petition at the court. If the parties does not agree to the settlement decision of MOIST, then, the person whom file complaint and the persons who has directly related right and benefit to that decision may bring to case to the court.

What are the dossiers for filing complaint in intellectual property registration?

The dossiers for filing complaint include the following documents:

The application with matters to be complained;

The submission and evidence of complaint;

The copy of decision or notification is subject to be complained;

The copy of settlement decision for the first complaint (to the second complaint);

Power of attorney (if submit the application via intellectual property agent i.e. ANT Lawyers).   

What are settlement of complaint application?

Within ten (10) days from the date of receiving the complaint application, the person who has the competent of settling the complaint must examine the formal of application and issue the notification to the complainant whether the complaint application is being processed. In case of being processed, the person who has the competent of settling the complaint shall notify in written document to the parties who have directly related rights and benefits (“interested parties”) and set a time limit for them to provide opinions. Interested parties have the right to provide information, evidence for the opinion and the competent person is responsible for considering such submissions. At the end of the time limit, if there is no opinion from interested parties, the complaint shall be settled base on the opinions of the complainant.

What are decision of settling the complaint and publication of such?

Based on the arguments and evidence of complainant and interested parties, the competent person must issue the decision of settling the complaint within the duration as regulated of law on complaint. Before issue this decision, competent person notifies to the complainant and interested parties on the arguments and evidences of each party used to settle the complaint and the result of the complaint. The decision of settling the complaint is published on Industrial Gazette within 02 months from the date of signing the decision.

If the client needs help with handling such complaint, our intellectual property attorney in Vietnam at ANT Lawyers will be of help.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

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What are Forms of Arbitration Agreement under Vietnam Laws

Under Article 16 of Vietnam Law on Commercial Arbitration, forms of arbitration agreement resolving disputes are in written form.  In particular:

An arbitration agreement may be made in the form of an arbitral clause in a contract or in the form of a separate agreement.

 

Arbitration lawyers in Vietnam

An arbitration agreement must be in writing. The following forms of agreement may also be regarded as written form:

1.Agreement made through communication between the parties by telegram, fax, telex, email or other forms provided for by law;

2.Agreement made through exchange of written information between the parties;

3.Agreement recorded in writing by a lawyer, notary public or competent institution at the request of the parties:

4.In their transactions, the parties make reference to a document such as a contract, document, company charter or other similar documents which contains an arbitration agreement;

5.Agreement made through exchange of petitions and self-defense statements which reflect the existence of an agreement proposed by a party and not denied by the other party.

In case multiple arbitration agreements are reached on the same dispute, the latest lawful agreement shall apply.

If the contents of an arbitration agreement are not clear or could be understood in more than one way, regulations of the Civil Code shall apply.

When there is a handover of rights and obligations under a transaction or contract which contains a lawful arbitration agreement, such agreement is still applicable to the transferee and the transferor, unless otherwise agreed by the parties concerned.

Multiple legal relationships to resolve the same case shall be combined if the parties agree to combine multiple legal relationships to resolve the same case, or the arbitration rules allow for combination of multiple legal relationships to resolve the same case.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

 

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