Supply Chain Relocation and Intellectual Property Protection after COVID-19: Why Vietnam and What to Watch Out For?

WRITTEN BY XUAN NGUYEN

The global economy has recently witnessed unprecedented blows due to the US–China trade war and COVID-19. Many countries (especially in Europe and the USA) have struggled against the pandemic, but Vietnam has managed the crisis effectively — an official count of 327 cases and zero deaths to date. Local authorities have eased social distancing measures, and most business activities, including shops and restaurants, are back to normal. However visa controls are still in place and international flights are still banned.

How businesses think about supply chains is changing. This article reveals our latest insights on the evolving situation; how it is turning Vietnam into a new manufacturing hub for the global economy. We also provide some useful tips and things to watch out for to help protect your intellectual property (IP) in South-East Asian market like Vietnam. Let’s explore.

The US–China trade war and the COVID-19 crisis: Urging businesses to diversify their supply chains

The trade war between the US and China (often seen as the factory of the world) has made production in China more expensive due to increased tariffs. This has driven companies to look for safer and more competitive options. HSBC economist Yun Liu pointed out that, ‘Likely due to the trade tensions that have accelerated multinational corporations’ relocation decisions, many tech giants, including Apple, Google, Nintendo, and Kyocera, have now followed in Samsung’s footsteps and plan to move parts of their production to Vietnam’[1].

At the height of the trade war tensions, COVID-19 broke out on a global scale, affecting millions of people. Governments have intervened, applying numerous safety measures that forced many businesses to close. Amid this chaos, companies with supply chains mainly dependent on China have started to realise how vulnerable they are.

In a recent article on CNBC[2], Mark Mobius, founder of Mobius Capital Partners, said the pandemic was already prompting a rethink as businesses sought to mitigate supply shocks from any future events of a similar scale: ‘A lot of buyers and a lot of the people depending on the supply chain in China are now having second thoughts, and are beginning to diversify their supply chain as much as possible to be closer to home’. ‘But at the end of the day, I think there’s going to be a diversification where these supply chains get moved into places like Vietnam, Bangladesh, Turkey, even Brazil, so that these companies can have a more diversified supply chain,’ he added.

Meanwhile, IMA Asia’s Richard Martin said that, although manufacturers across several industries had begun moving operations out of China before COVID-19, the pandemic was adding ‘a nationalist spin’ to considerations around supply chain restructuring.

EU Commissioner Phil Hogan declared that ‘we need to look at how to build resilient supply chains, based on diversification, acknowledging the simple fact that we will not be able to manufacture everything locally’[3].

When the pandemic ends, people will get back to work, businesses will be reopened and factories will operate again, but the world will not be the same as before. It will be a ‘new normal’ era. No one knows exactly what will happen. But one thing is certain: businesses must learn the importance of altering their supply chains to avoid similar shocks in the future.

Why Vietnam?

Dynamic economy with stable growth

With a population of about 97 million people (15^th in the world) and based on decades of stable growth, Vietnam has one of most dynamic economies in the region. Supported by a robust manufacturing sector, GDP expanded by about 7% in 2019[4]. According to PwC’s ‘The World in 2050’ report[5], Vietnam is expected to be among the top 20 economies in the world by 2050.

Young population and competitive labour cost

Vietnam has a young population (70 % under 35)[6] and a large workforce (52 % are of working age)[7]. The middle class has been quickly expanding; it currently accounts for 13 % of the population and is expected to reach 26% by 2026[8].

According to Statista[9], labour costs in Vietnam are more competitive than in China. Manufacturing labour costs per hour are estimated at USD 6.5 in China, more than double that of Vietnam at about USD 3. In the ‘new normal’ after the COVID-19 crisis, when the global economy has slumped and consumer incomes have declined, manufacturing costs are expected to be one of the critical factors influencing investors.

Free trade agreements (FTAs): Shaping stable and open economies

Vietnam has shown a strong willingness to integrate into the global economy through numerous FTAs (13 signed and ratified, 3 more under negotiation).

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CTPPP) and the EU–Vietnam FTA (EVFTA) are two major advancements. The CPTPP took effect in January 2019, covering 11 member countries and accounting for about 14 % of global GDP[10]. CPTPP members are bound to comply with a number of commitments, from tax removal to improvements in legal frameworks that encourage sustainable investment and protect labour, environment and IP.

The EVFTA[11], signed in June 2019, is expected to be approved by the Vietnamese government in early summer 2020. It will eliminate 99 % of all tariffs on goods traded between the two sides. It also includes important provisions related to environmental protection, labour rights, IP protection and climate change. Vietnam will protect 169 Geographical Indication (GIs), such as Champagne, Parmigiano Reggiano cheese, or Feta cheese, at a comparable level to EU legislation.

These FTAs are expected to mitigate protectionism and encourage openness, cooperation and coordination, creating a favourable and stable environment to do business in Vietnam.

Pool of opportunities

When the supply chains shift, the supporting sectors and services will go with them. In the PWC report, ‘Doing Business in Viet Nam’[12], the sectors that will provide the most opportunities for companies entering this market are: manufacturing, retailing, e-commerce, tourism, modern agribusiness, food, solar and wind energy. As an emerging manufacturing export hub, total export revenue was estimated at USD 244.7 billion in 2018, up 13.8 % from 2017. FDI companies contributed 71% of it (equivalent to USD 175.5 billion), up 13% from 2017. Retailing is expected to reach USD 173 billion by 2023, an increase of 61 % (USD 108 billion) from 2018.

IP protection in Vietnam: Things to watch out for

An IP protection strategy is essential for any plan to relocate your business to prevent others from copying or using your IP assets and eventually enable you to take enforcement actions against the infringers. Even if you don’t plan to establish your physical business in Vietnam, technology transfers and licensing are good ways to increase revenues. However, they also expose your intangible assets to certain risks.

To comply with the binding commitments in the CPTPP and EVFTA, Vietnam has been working on amending its IP law and the relevant guiding documents, and enhancing the effectiveness of enforcement agencies. Stronger and stricter measures against IP infringers will soon be put into practice.

The first step in the transition is to understand what your IP rights are, and see how to get the best out of them in the new market.

Why and when should I register my IP in Vietnam?

Counterfeiting, piracy and cybersquatting are quite popular in Vietnam, especially in the thriving e-commerce era. Like other Asian countries, there are already many local counterfeit manufacturers available in the market and significant trade exchange with nearby China. Vietnam is very high risk in terms of counterfeits and its anti-counterfeiting agencies still need improvement.

IP protection is national. Even if you have already registered your IP, it doesn’t mean that it is protected in Vietnam. To proceed with an enforcement action in Vietnam, local registration is a must.

Similarly to China and other South-East Asian countries, IP registration in Vietnam operates under a ‘first-to-file’ system; the first person to file an IP application in the jurisdiction owns the rights once the application is granted. This encourages bad faith registration: a local company, or even your distributor, may file an application to register your IP (especially trade marks) before you, and then become its legitimate owner. They may start doing business with your IP or offer to sell it back to you. Taking legal action against these infringers is expensive and, without owning the IP registration, not always easy. This time-consuming process threatens your reputation and decreases your economic benefits. You can even find yourself excluded from the market.

Registration is the prerequisite step for the protection and enforcement of your IP rights. You may prioritise exploring the market and prefer to postpone registration until your business is well positioned, but spending a few hundred euros to file a patent, trade mark or a design application before entering the market is strongly advised. The table below summarises the basic registration costs (excluding services and legal fees) and timelines.

Type	Government fees	Average time
Patent	VND 2 130 000 (approx. EUR 84)	36–48 months
Trade mark	VND 1 360 000 (approx. EUR 54)	15–18 months
Industrial design	VND 1 810 000 (approx. EUR 71)	12–15 months
Copyright	VND 100 000 to VND 600 000 (approx. EUR 5 to EUR 25)	15 days

It is also advisable to run a pre-filing search to establish the availability of your IP. You can search a national databank at the IP Vietnam portal (http://iplib.noip.gov.vn/WebUI/WLogin.php) and access the WIPO IP Portal for international registrations designated Vietnam.

Should a non-disclosure agreement (NDA) and IP clauses be included in the contract?

While exploring business opportunities in Vietnam, you are likely to present innovations and ideas to potential local partners for purpose of technology transfer, licensing or research and development (R&D). Disclosing your technology and know-how (e.g. manufacturing processes, technical drawings, and specifications) to local partners exposes you to risk.

A rule of thumb rule is to always sign an NDA and include IP clauses in contracts with local companies to secure your IP. For more information, you can check out our relevant guides, such as Technology Transfer Guide, Research & Development (R&D) Activities and Using Contracts to Protect your Intellectual Property.

Is it compulsory to use a local agent to register my IP in Vietnam?

IP protection is national and the laws and practices are not the same as in the EU. Seeking advice from a local lawyer with expertise on the topic is strongly recommended. Please note that, if an applicant doesn’t reside in Vietnam, appointing a local agent to file your application and work with the IP office of Vietnam is compulsory. You can refer to our list of local experts here — they can guide you through the legal procedures and provide strategic advice.

Can I register my IP from my home country?

Apart from registering your IP directly with the IP office of Vietnam, there are some international treaties that can help companies to obtain simultaneous protection in multiple countries:

– Patent Cooperation Treaty (PCT): The PCT system helps applicants seeking patent protection internationally for their inventions. By filing one international application, applicants can simultaneously seek protection in a very large number of countries, including all ASEAN countries except Myanmar. The biggest advantage of the PCT procedure is that you have up to 30 months from the earliest filing date of your initial application to decide which countries you wish to enter for protection.

– The International Trademark System – Madrid: A convenient and cost-effective solution for registering and managing trade marks worldwide. Under the Madrid system, you can file just one application in one language through your home office, and pay one clear set of fees to seek trade mark protection in up to 122 countries. All South-East Asian countries (except Myanmar) are members.

– The Hague System for the International Registration of Industrial Designs provides a practical business solution for registering up to 100 designs in 73 contracting parties covering 90 countries, through the filing of one single international application. Four South-East Asian countries (Brunei, Cambodia, Singapore and Vietnam) are party to the Hague System.

Now supply chains are being relocated, Vietnam is a promising destination for business expansion. Investing some time in exploring IP protection and having a well-prepared strategy are critical factors in your success and sustainable growth in Vietnam. Neglecting IP protection might cost you more than you imagine.

For more information about IP protection in Vietnam, you can check out our IP Country Factsheet or contact us for free IP advice.

The South-East Asia IPR SME Helpdesk is an EU initiative that provides free, practical IPR advice to European SMEs in South-East Asia. EU companies can send questions to questionsoutheastasia-iprhelpdesk [dot] eu (question[at]southeastasia-iprhelpdesk[dot]eu) and receive a reply within three working days.