New requirements for person eligible to sign POA and documents in the procedures of IPRs registration

Unlike in the past when a Power of Attorney (POA) could be signed by the Applicant or by anyone on the Applicant’s behalf without further documentation on the capacity to sign the POA and it’s neither notarization nor legalization is required, this Notice details many things. However, there are still some unclear points that need further explanation for the Notice to be implemented effectively as expected.

Regarding the person who is legally eligible to sign the POA and related documentation, the Notice stipulates as follows:

1.   In case the Applicant is an individual: 

If representation of the Applicant is the legal representative as provided for in Article 136 of the Civil Code[1]  or under the authorization of the Applicant through the POA, the signing of such POA is done by the very Applicant and the authorization of representation must comply with the provisions of Point 3 and 4 of Circular No. 01/2007/TT-BKHCN[2].

2.   In case the Applicant is an organization:

2.1  The representation of the Applicant is its legal representative

a) If  the person signing the Form(s) and transaction papers has positions such as Chairman of Board of Members, Chairman of Board of Management, company’s Chairman, General director, or Director[3]; the signer only needs to confirm him/herself as the legal representative of the Applicant through his/her own signature and seal (as prescribed by law, if any);

b) If the person signing the Form(s) and transaction papers has other positions such as deputies of the positions in a) above, or the positions such as Head of Administration, Head of Department, deputies of these positions or positions of foreign organizations such as attorney in fact, authorized signatory, proxy, officer etc., the applicant must provide supporting documentation proving that the signer is the Applicant's legal representative and seals (as prescribed by law, if any).

2.2  The representation of the Applicant is a person belonging to the organization and is  authorized by the legal representative

In case the person signing the Form(s) and transaction papers is a person belonging to the organization and is authorized by the legal representative, in addition to complying with the provisions of the legal representative mentioned in item 2.1 above, the applicant must also provide documentation to prove such authorization.

2.3 The representation of the Applicant is an industrial property representation service organization (IP Agent)

IP agent represents the applicant through POA. Therefore, the person signing the POA in the name of the representative of the Applicant must meet the requirements specified in item 2.1 or 2.2 above and must comply with the provisions of Points 3 and 4 of Circular No.01/2007/TT-BKHCN (Circular No.01)[4].

3. Others

3.1 The regulations specified  in item 1, 2.1 and 2.2 above apply to both Vietnamese and foreign  applicants.

3.2. In case the person representing an organization being foreign applicant cannot prove his/her legal representative status or authorized status as specified in Point 3 and 4 of Circular No. 01/2007/TT-BKHCN the transaction documents  submitted to the NOIP (IP Vietnam) must be notarized and legalized with respect to that person's signature.

Comments

Of course, as the Notice has been issued, the applicants and persons concerned have to comply. However, there are some unclear issues that require further clarification or explanations, namely:

(i) As the Notice does not specifically state when to take effect. Since this Notice was issued on November 23, 2020, will these new requirements apply from that date?

(ii) As there is no transitional provision in this Notice, whether IP Vietnam applies retroactively to the case filed before the date of the Notice? What happens to the POAs already filed with the IP Vietnam, at least POAs for applications have accepted as to formality?

(iii) There is a need to specifically state the nature and requirements of the documentation on the capacity as the legal representative of an organization in 2.1.b and the internal authorization in 2.2, especially when an organization is incorporated in accordance with a foreign law.

In conclusion, in this interim period, a practical thing that foreign applicants should do is to maintain a close and timely contact with their IP agents in Vietnam, through them to receive specific guidelines from IP Vietnam in case of need to facilitate the prosecution process and to avoid any potential objection during the application examination stage./.