Main contents of Notice 13822
Notice 13822 groups applicants/owners as follows:
The representatives of applicants/owners are legal representatives (in accordance with Article 136 of the Civil Code) or authorized representatives via power of attorney (“POA”) (including individuals, organizations or IP agents). In this instance, the POA must be signed by the individuals themselves, and the authorization must comply with Points 3 and 4 of Circular 01/2007/TT-BKHCN.
2.1. In case the signatory is the legal representative of the applicants/owners
- If the signatory is the chairman of the board of members, chair of the board, the company’s president/director/general director, the signatory only needs to sign and imprint the applications and/or required documents with the company’s seal (as required by law, if any).
- For all other signatories, such as the vice of the abovementioned titles; chief, head of departments, or vice thereof; attorney in fact, authorized signatory, proxy, officer, etc., the applicants/owners must submit evidence proving that their signatories are eligible to represent them. The signed documents must be sealed (as specified by law, if any). The submitted evidence shall vary depending on the nature of each case as well as the signatory’s title.
2.2. In case the signatory is a staff member of organizations authorized by the applicants’/owners’ legal representatives
In addition to complying with the regulations on legal representatives as specified in Section 2.1 above, the applicants/owners must submit materials evidencing the said authorization.
2.3. In case the signatory is an IP agent
The representative relationship must be established via a written POA. Accordingly, the signatory of the POA, on behalf of the authorizer, must satisfy the requirements in Sections 2.1 and 2.2 above and as stipulated by governing law.
On a related note, if the signatories of a foreign applicant/owner fail to prove their legal or authorized representative capacity, their signatures shall be certified and legalized in all documents submitted at the VNIPO.
What to expect
The recently modified practice at the VNIPO applies a more rigid system for the titles of representatives and their relevant authorizations. Previously, the POAs (and other documents) signed by any representative internally authorized by IP holders were all accepted without any demands to prove the signing authority.
From the VNIPO’s perspective, this change may be considered a reasonable method for ensuring (i) the validity of submitted documents and (ii) the consistency of all procedures to pursue the registration of an IP object (from establishment to maintenance).
All IP rights owners may therefore face the risk of their existing POAs, which do not meet the new requirements, being rejected by the VNIPO.
The Notice has not yet detailed how this new practice affects POAs that were already submitted and accepted for pending IP cases by the VNIPO. That said, we anticipate certain difficulties and challenges for IP holders, particularly foreign holders, as they need to pen fresh POAs to meet the strict requirements under the Notice.
The Notice arrives at a time when many regions and jurisdictions are still in work-from-home mode. Not surprisingly, any paper work involving the signatories from high-level representatives and causes for legalization can be frustrating.