Contributing capital with intellectual property rights to establish a business in Vietnam
Is it possible to contribute capital with intellectual property rights to establish a business? This is probably the concern of many people who are intending to invest; establish a business. Having intellectual property can create competitive advantages that not all businesses have. However, due to the intangible nature of the property; Can consider an asset to contribute capital when establishing a business? Let’s find out about this issue with Lawyer X through the article below.
Legal grounds
– Intellectual Property Law 2005
– Enterprise Law 2020
How can intellectual property understand?
Intellectual property, also known as intellectual property, is the creation of the human brain. Besides, intellectual property can be musical works, literary works, computer software, inventions, inventions, utility solutions, industrial designs, trademarks, plant varieties, livestock breeds, etc. Intellectual property rights are the rights of the owners of the aforementioned creations. Among these rights, two are often mentioned; personal rights and property rights.
According to the provisions of Clause 1, Article 4 of the IP Law 2005; amended and supplemented in 2009 and 2019, intellectual property rights are the rights of individuals and organizations to intellectual property; including industrial property rights, copyright, and related rights; to copyright and plant variety rights.
Intellectual property rights assets, which can sometimes provide competitive advantages; are not small for businesses, especially for inventions, or useful solutions.
Is it possible to contribute capital with intellectual property rights to establish a business?
According to the provisions of Clause 4, Article 4 of the Enterprise Law 2020; stated the definition of capital contribution is as follows:
Capital contribution means the contribution of assets to form the charter capital of the company, including:
Contribute capital to establish a company;
Or contribute more charter capital to the company already established.
Accordingly, in Clause 1, Article 34 of the Law on Enterprises 2020, the assets for capital contribution when making a capital contribution is as follows:
Assets contributed as capital are Vietnam Dong, freely convertible foreign currency, gold; land use rights, intellectual property rights, technology, technical know-how; other assets that can value in Vietnam Dong.
Accordingly, we can understand that property is intellectual property right that can consider property; capital contribution when establishing a business. However, to carry out the procedures for capital contribution as the intellectual property of these assets; must meet some of the following conditions:
– Firstly, intellectual property rights must have a legal ownership certificate; issued by a competent State agency;
– Secondly, intellectual property rights must contribute as capital by the owner. The owner here is the person who has been granted the certificate of intellectual property rights by the competent authority or is the person in the name; on the protection of intellectual property rights.
Thus, individuals and organizations meet the provisions of the law completely; can use intellectual property rights to contribute capital to the company; in case the remaining members agree.
Procedures for capital contribution using intellectual property rights to establish a business
After conducting business registration procedures. To make a capital contribution with intellectual property rights, follow these steps:
Step 1: Valuing the property
According to Clause 1, Article 36 of the Law on Enterprises 2020, the contributed capital is not gold; Vietnam Dong and freely convertible foreign currencies must be established by founding shareholders; members, or valuation organizations, and conduct procedures for asset valuation and expressed in Vietnam Dong. Therefore, the intellectual property rights used to contribute capital must be; priced and expressed in Vietnamese Dong.
Intellectual property rights used to contribute capital when establishing an enterprise; must be appraised by a valuation organization or founded by a shareholder; members set prices by consensus. In case the valuation organization determines the value, the value of intellectual property rights shall be used for capital contribution; must be approved by more than 50% of founding shareholders and members.
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Step 2: Make a capital contribution contract with intellectual property rights
In the contract of capital contribution for intellectual property rights, it is necessary to fully show the basic contents of the capital contribution such as:
– Capital contribution recipient, capital contributor (name, address, ID card/CCCD, business registration license number…);
– Specific intellectual property rights (Certificate/proprietary license holder,…; filing date; application number; term of protection,…);
– Value of intellectual property rights;
– Time limit for capital contribution;
– Purpose of capital contribution;
– Register for capital contribution and pay fees;
– Commitment of the parties,…
Step 3: Carry out the procedure for transferring intellectual property rights to the enterprise
Assets after making capital contributions belong to the enterprise. So, just like capital contribution with land use rights; To contribute capital with intellectual property rights, the parties need to carry out procedures for transferring intellectual property rights.
Under the provisions of Articles 86, 87, 138, 192 of the 2005 Intellectual Property Law, as amended and supplemented in 2009 and 2019, industrial designs, inventions, trademarks, layout designs, rights Authors, related rights, and rights to plant varieties, when transferring ownership, must be done in the form of a written contract.
Therefore, organizations and individuals that want to contribute capital of intellectual property rights to an enterprise need to transfer ownership to the enterprise in the form of a written contract.
Related question
Members must contribute capital contribution to the company in full and with the right type of assets as committed when registering for the business establishment within 90 days; from the date of issuance of the business registration certificate.
The contribution of capital with intellectual property rights will only be applied to the property rights and moral rights associated with the property of authors and owners of literary, artistic, and scientific works. That is, moral rights not associated with property rights such as the right to name the work, and the right to publish the work, will not be the subject of capital contribution.
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