Official notification on guidance of identifying the legal capacity of the signer on documents
On 23 November 2020, the Vietnam IPO has issued the Notification No. 13822/TB-SHTT (referred to as “Notification No. 13822”) applying new regulations related to the person who can sign on documents submitted to the Vietnam IPO on behalf of the applicant. The main contents of the Notification focused on the new regulations applying to organizations, which are summarized as follows:
- All the documents submitted to the Vietnam IPO must be signed by the person who holds one of the following titles of the organizations, namely, Chairman of the Board Members, Chairman of the administrative board, President, General Director or Director;
- In case the signer is other than the titled officers as mentioned above, the applicant must provide further documents proving the authority of the signer;
- The foreign organizations who could not provide the aforesaid evidentiary documents proving the authority of the signer, the documents must be legalized by Consulate of Vietnam in the applicant’s home country.
Prior to the issuance of the Notification No. 13822, almost all the documents filed by an organization, especially Power of Attorney, were accepted regardless of the title of the signer, therefore, the said Notification has faced serious controversial comments/oppositions from concerned parties, such as the Vietnam Intellectual Property Association and the domestic Industrial Property Agents.
In the Vietnam IPO’s point of view, the change of the long-lasting practice as set forth in the said Notification is to comply with the current regulations provided for in the Civil Code in general and the Intellectual Property Law in particular. From then on, only titled officers namely Chairman of the Board Members, Chairman of the administrative board, President, General Director or Director will be prima facie recognized as the Statutory Representative of the applicant, who is inherently authorized to sign on papers/documents on the applicant’s behalf, without the need of proving the same.
However, from our own opinion, such change of the practice does not fulfil the regulations of the Civil Code and the Intellectual Property Law. In particular, according to the current IP Law and regulations, the Power of Attorney must contain signature, name and title of the Legal Representative of the applicant (Point 4.2 of the Circular 01). The current IP Law and regulations does not require the applicant to provide documents proving the authority of the Legal Representative of the applicant UNLESS there is an explicit evidence to doubt the authentication of such document. In the meantime, according to the Civil Code, the Legal Representative of an entity can be either the Statutory Representative or an authorized one (Article 91 of the Civil Code). As such, according to the Civil Code, not only Statutory Representative but also any Authorized Representative are recognized as Legal Representatives who are capable to act on behalf of an entity to sign paper/documents without the need of proving the same.
At the moment, the Notification No. 13822 has come into effect despite still facing many controversial comments. Therefore, before executing any paper/documents, if necessary, the applicant should beforehand consult with their Vietnamese Intellectual Property Agents to obtain timely guidance and avoid unexpected shortcomings as to formality.