Dormant Laws in India

News about recent Indian legislation should be treated with caution. The devil is often in one small detail. Many acts passed by Parliament, consented by the president, and promulgated in the Gazette of India do not come into force immediately (i.e., on the day after the promulgation) or at a fixed date (e.g., by the end of the year). In fact, the act itself does not determine its coming into force. Instead, the Government of India is empowered to decide from when the law is applicable and needs to be conformed with. The date may be staggered for different parts of the law. In many cases, the government first passes regulations under the act—or waits until the states have passed those regulations that are within their competence. This may take some time. For example, the four labour codes of 2019 and 2020 are not yet in force, neither is the Digital Personal Data Protection Act of August 2023.

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Your contact person in India: Dr. Jörg Schendel

Suman Khaitan & Co.

W-13, West Wing, Greater Kailash Part-II
Delhi 110048, Indien

www.sumankhaitanco.in
germandesk@sumankhaitanco.in
schendel@adwa-law.com

New Trademark Regulations in force in the Philippines

The Intellectual Property Office of the Philippines (IPOPHL) recently issued Memorandum Circular No. 2023-001, also known as the Trademark Regulations of 2023. It replaces the Revised Trademark Regulations of 2017 and introduces significant changes to the rules and regulations governing trademarks.

This memorandum, is a set of rules and regulations that governs the registration, protection, and enforcement of trademarks in the Philippines.

Some of the essential features of the memorandum are that it institutionalizes the protection of non-traditional visual marks, such as color marks, motion marks, position marks, and hologram marks, as long as they have acquired distinctiveness. It further; mandates online transactions for trademark applications and communications, except for exceptional circumstances, such as natural calamity and prolonged system down time, streamlines the processes for trademark examination, opposition, cancellation, and renewal and finally revises the fee structure for trademark-related services, such as filing, publication, registration, and maintenance.

The most significant item is the recognition of on non-traditional marks.

Non-traditional marks are types of trademarks that did not belong to any pre-existing category, but still act as source identifiers. Examples of non-traditional marks are Colors or color combinations, Sounds, Smells, Tastes, Textures, Patterns, 3D marks, Holograms, Motion marks, Position marks and Trade dresses (such as product design, packaging, or configuration).

These types of marks present a bigger challenge in gaining registration and must be distinctive and not functional.

Not registering a non-traditional mark can have significant consequences. Non-traditional marks are often more difficult to register than traditional marks, and they require a higher level of distinctiveness. If a non-traditional mark is not registered, it may not be protected under trademark law, which means that others may use the mark without permission. This can lead to confusion among consumers and dilution of the mark's value. Additionally, if a non-traditional mark is not registered, it may be more difficult to enforce against infringers.

Registering non-traditional marks however presents a bigger challenge than traditional marks. Such non-traditional marks must be distinctive, which means they must identify the source of the goods or services. A mark is distinctive if it is inherently distinctive or has acquired distinctiveness. However, shapes, colors, and other non-traditional marks are often not considered inherently distinctive, where objections may be raised on the grounds that the mark is devoid of distinctive character. They must be represented in the register in a manner that enables people to determine the clear and precise subject matter of the protection afforded and distinguish goods or services of one undertaking from those of other undertakings. However, it can be difficult to represent non-visual marks such as sound, smell, or taste in a clear and precise way. Finally non-traditional marks must not be functional, which means they must not serve a functional purpose beyond identifying the source of the goods or services. Shapes, for example, are often not considered inherently distinctive, as consumers will typically see them as decorative or functional, rather than as indicating the origin of the product.

Nevertheless, obtaining registration for a non-traditional mark can be particularly useful in protecting infringing marks on seller platforms.

The changes of the Philippine Trade Marke office in summary aim to improve the trademark registration process and ensure the protection of intellectual property rights in the Philippines.

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Your point of contact in the Philippines: Lutz Kaiser

Villanueva Gabionza & Dy Law Offices

20th/F Corporate Center
139 Valero St., Salcedo Village
Makati City 1227, Philippines

CELL      +63 995 985 4957
TEL        +63 2 8813 3351
FAX       +63 2 8816 6741

www.vgdlaw.ph
manila@adwa-law.com

Search for Foreign Talents - Taiwan eases rules for foreign specialists

Taiwan continues to make it easier for foreign nationals to come to Taiwan and set up businesses here. The goal is to ensure that Taiwan is able to attract high-quality talent from overseas.

For better support of foreign professionals who want to live and work in Taiwan, the Talent Taiwan Office, an extension of the Taiwan Employment Gold Card Office, was opened on 1 November 2023 as a service center providing support on visa and other matters related to settling down in Taiwan.

Taiwan has additionally updated the Entrepreneur Visa, making it easier for foreign entrepreneurs to start a business in Taiwan. The visa enables the holder to stay and work in Taiwan for 2 years now. The main consideration for granting the Entrepreneur Visa is innovation, as well as the fulfillment of one of the necessary criteria. These include, but are not limited to: Participation in an incubator or having obtained a patent for an invention abroad. Proof of capital or investment is not required.

Still outstanding is putting the amendments of the Taiwan Immigration Act into force. The amended act has been signed by the president and now the Executive Yuan has to set the date when the amendments shall be implemented.

The steps taken are supporting the aim of the government to attract foreign talents. More effort is needed to keep the talents in Taiwan and not to lose foreign specialists who are long term residents, due to red tape and regulations.

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Your point of contact in Taiwan: Michael Werner

Eiger Law

Bldg. A, 2F, 25-2 Ren Ai Rd, Sec. 4
Taipei 10685
Taiwan

CELL      +886 9 8726 1326
TEL        +886 2 2771 0086
FAX       +886 2 2771 0186

www.eiger.law
info@eiger. law

New Work Permit Regulations

With the entry into force of Decree 07/2023 on September 18, 2023, several regulations concerning the employment of foreign nationals in Vietnam were amended.

Foreign nationals working in Vietnam generally need a work permit and should only be employed for positions that require high technical or managerial skills. Foreign employees who want to obtain a work permit (validity period of max. 2 years term, one extension possible) need to be sorted into certain categories, i.e., "manager"/"executive", "expert" or "technician".

Notable modifications

1. Prior to Decree 07/2023 it was required that the educational background of the foreign national (subject of his/her studies) and the position that the foreign national was supposed to hold in Vietnam were “linked” i.e., it had not been possible to use a degree in psychology when applying for the work permit of an “IT Expert”. This link/connection is no longer mandatory. This link/connection is now only required for the additional working experience confirmation (at least 3 years). This means that a law graduate can also be employed as a marketing expert, if a working experience confirmation for a marketing position can be provided. This would not have been possible before.

2. Proof of professional experience referred to in item 1 above can now be provided by previously issued work permits and certifications of work permit exemptions.

3. The position of an "executive" which had not been relevant in our practice due to a lack of detailed implementing regulations, is now specified in more detail by listing the head of a branch, a representative office, or a business location. Documentary evidence for actually taking up such positions as an “executive” are equivalent to the position of a "manager" (e.g. (general) director): charter (or equivalent) and Enterprise Registration Certificate (or equivalent) of the employer and an appointment letter.

4. It is no longer required to submit a legalized passport copy (to be processed overseas, time-consuming and expensive) or a copy of the passport notarized in Vietnam (original passport required) in order to apply for a work permit (renewal) or exemption thereof. A passport copy certified by the legal representative of the local employer is now sufficient.

5. From 01.01.2024, the following must be observed: companies intending to employ a foreign national must first publish a job advertisement for the vacant position via the electronic information portal of the Ministry of Labour, War Invalids and Social Affairs ("Molisa") or that of the competent Employment Centre. The job posting must be submitted at least 15 days before submitting the foreign employee demand report (“FEDR”; necessary step before the actual work permit application) and aims to encourage the local labor market.

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Your point of contact in Vietnam: Christian Brendel

Brendel & Associates Law Co., Ltd.

D&D Tower, 10th Floor
458 Nguyen Thi Minh Khai Ward 2, District 3
Ho-Chi-Minh-Stadt, Vietnam

CELL     +84 98 978 4791
TEL       +84 28 3911 2008
FAX       +84 28 3911 2010

www.brendel-associates.com
info@brendel-associates.com

Charter Capital Contributions in a Vietnamese Company

The formerly prominent real estate investor, FLC, and its chairman, Mr. Trịnh Văn Quyết (attorney-at-law), are being prosecuted for manipulations of the stock market which allegedly enabled Mr. Quyết and his relatives (including two of sisters employed in the FLC conglomerate) to acquire approximately 29.8 Mio. USD.

The fall from grace of FLC (including its former subsidiary Bamboo Airlines, which stopped various internal flight routes end of last week) has been the topic of frequent newspaper articles in recent months. Rather prominent had been the failed attempts by a bank to part with a luxury yacht and a “golden” Rolls Royce which had been used as collateral by FLC and its chairman.

Apart from the public interest in an allegedly criminal scheme, we would like to direct your attention to the alleged findings of the public investigators concerning possible legal “loopholes in the monitoring/surveillance of charter capital contributions” as stated in this VNExpress article: (https://e.vnexpress.net/news/business/companies/legal-loopholes-exposed-after-former-flc-chairman-fraud-police-4671312.html). According to the alleged findings of the investigators, charter capital contributions in FLC (possibly the parent as well as sister and subsidiary companies) had been overvalued and/or misstated to a possibly rather large extent. Applicable legal provisions require that the registered charter capital contributions are made within 90 days after the issuance of the Enterprise Registration Certificate. While we have no further detailed knowledge of the investigations in this matter, we have had similar issues when dealing with various Vietnamese companies (companies owned by Vietnamese nationals) during, for example, due diligence procedures. In accordance with our experience, it is definitely not “uncommon” that registered charter capital contributions i.e., charter capital contributions as registered with Vietnamese licensing authorities and as stated in the Enterprise Registration Certificate, have actually not been made. When examining related records and enquiring about the background of such, we had, more than a few times, been told that: “it is not required to make such contributions in full or at all, since the amount of the charter capital is stated in the Enterprise Registration Certificate and must have thus been made prior to the licensing authority issuing such document” or “the contributions had been made in numerous cash transactions and not via bank transfer” the latter statement will usually be complemented with a stack of “papers” (occasionally handwritten and undated) in which a Chief Accountant (CFO) confirms the receipt of various cash amounts to the company owner. Common had been, at least in our practice, also the argument that such contributions would not be required since the company owner had invested his/her “working efforts” (sweat equity) and if required, he/she could confirm the value of such in writing.

What is of interest, at least for the purposes of this article, is the fact the timely and complete transfer of the charter capital contribution of a foreign investor is monitored rather diligently. For any foreign invested company in Vietnam (company with a foreign national and/or foreign legal entity as a company owner, co-owner or shareholder) proof of the charter capital contribution must be submitted during applications for changes to the Enterprise and/or Investment Registration Certificate. Any default i.e., a delayed and/or incomplete transfer (possibly due to deductions of bank transfer fees) will trigger a rather lengthy round of explanatory statements, applications for a permission to extend the legally provided for contribution time limit (90 days) prior to continuing with the procedures to changing and/or amending the Enterprise and/or Investment Registration Certificate. We hope that the alleged mishandling of related matters in the FLC conglomerate will inspire local authorities to use existing monitoring tools more consistently and possibly develop further mechanisms to enforce existing legal regulations.

The above as a “warning” to interested foreign investors:

• Please do verify if the charter capital contributions in your target company have actually been made in full and on time.
• Please do ensure that your transfer of your charter capital contribution is credited in full and on time.

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Your point of contact in Vietnam: Christian Brendel

Brendel & Associates Law Co., Ltd.

D&D Tower, 10th Floor
458 Nguyen Thi Minh Khai Ward 2, District 3
Ho-Chi-Minh-Stadt, Vietnam

CELL     +84 98 978 4791
TEL       +84 28 3911 2008
FAX       +84 28 3911 2010

www.brendel-associates.com
info@brendel-associates.com