Article 5 of my country’s currently applicable Trademark Law (the second amendment in 2001) stipulates: Two or more natural persons, legal persons or other organizations may apply to the Trademark Office to register the same trademark at the same time. ***jointly enjoy and exercise the trademark rights. ?It can be seen that our country has laws to follow regarding trademark rights, especially trademark rights between natural persons. However, after the legal relationship is determined, there is a lack of specific exercise rules, because the characteristics of trademark rights make it difficult to apply the legal rules of property law. Theoretical research and practical precedents in this field are very limited, so it is necessary to conduct an in-depth discussion on the rules for the exercise of copyright rights between trademark owners.
Article 5 of my country’s currently applicable Trademark Law (the second amendment in 2001) stipulates: Two or more natural persons, legal persons or other organizations may apply to the Trademark Office to register the same trademark at the same time. ***jointly enjoy and exercise the trademark rights. ?It can be seen that our country has laws to follow regarding trademark rights, especially trademark rights between natural persons. However, after the legal relationship is determined, there is a lack of specific exercise rules, because the characteristics of trademark rights make it difficult to apply the legal rules of property law. Theoretical research and practical precedents in this field are very limited, so it is necessary to conduct an in-depth discussion on the rules for the exercise of copyright rights between trademark owners.
The rights of trademark rights have types and characteristics
Currently, the relevant laws do not specifically stipulate the types of rights of trademark rights. Generally speaking, it is believed that the rights of trademark rights have types and characteristics. There are can be divided into portions *** and *** the same ***. If the agreement is unclear, it is presumed that *** owns it together with ***. The basis for this is Article 88 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of Certain Issues." As for property owned by ***, some people claim that *** owns it in shares. Yes, some *** people claim that *** and *** own it. If it cannot be proved that the property is owned by *** in shares, it should be deemed that *** and *** own it. ?Therefore, if the parties *** own the trademark right in shares or if *** and *** have no agreement or the agreement is unclear, it is presumed that *** and *** own it.
The most important features of trademark rights are the majority of the rights holders, the legality of the determination of the rights and the particularity of the exercise of the rights.
First, the majority of rights subjects. The only parties with trademark rights are two or more natural persons, legal persons or other organizations, who have the exclusive right to use the same trademark based on mutual registration, mutual transfer or other legal reasons. This feature is relative to non-drugs and does not distinguish it from other drugs.
Second, the legal nature of rights determination. Trademark rights are the exclusive rights of several entities to the same trademark. They need to be registered with a legal agency, because trademarks play a role in defining the sources of different goods, and the acquisition, licensing, and transfer of rights must go through Legal procedures and the time limit are also stipulated by law.
3. The particularity of the exercise of rights. ***The object of trademark rights is a trademark, not a tangible object, which will lead to the particularity of the exercise of rights.
Trademark rights and the carriers of trademark rights
The law does not clearly stipulate whether trademark rights belong to the same person or in shares. , but it is generally believed that it can be divided into *** having the same *** and *** having according to the share. Some people believe that the registration of shares must be based on the divisibility of the existing trademark. What is divisibility? It means that a trademark must be registered on several different categories of goods to make division possible. It is divisible. If a trademark is only registered on one or one category of goods, there is no divisibility. Even if someone agrees to implement the trademark in shares, the agreement will be invalid. This article believes that this view confuses the share of rights with the number of rights carriers, and in fact the two have no correspondence. The owner of a trademark right enjoys the exclusive right to use the trademark, and the specific goods are only the carrier of this right. Taking the trademark "Rainbow" as an example, the only person enjoying the exclusive right to use the trademark "Rainbow" has nothing to do with how many products the trademark "Rainbow" is registered on.
According to this point of view, if the registered categories of the "Rainbow" trademark are two major categories of goods: clothing and electrical appliances, then the owned trademark is divisible, and the rights holder can own it in shares and can be divided into One entity owns the clothing trademark, and another entity owns the electrical appliance trademark. However, if there is only one category of clothing, there is no divisibility, and it cannot be owned by shares. The further conclusion is that it can only be owned. *Same as***. This is obviously wrong. According to this logic, even if a certain trademark such as "Rainbow" is registered on two major categories of goods, if the main category of the "Rainbow" trademark is clothing, and the rights owner's proportion of ownership is 50% each, then for For some people, it is obviously difficult to say that the party that only enjoys electrical appliances is fair and reasonable. Therefore, the exclusive ownership of a trademark should be the exclusive ownership of the trademark rights, regardless of the number of carriers of its rights. No matter how many goods are registered for a certain trademark, it will not affect the identification of its exclusive type.
Rules for the exclusive exercise of trademark rights
After clarifying the types of exclusive rights that trademark rights can have, the most pressing issue for practical application is Yes, it is necessary to establish rules for the exercise of trademark rights by trademark owners.
What are the rules for direct use of trademark rights by someone? There is no restriction on direct use by anyone. Trademark rights are different from ownership rights. The latter’s rights include the four rights of possession, use, income, and disposal. The basic rights of trademark rights are mainly the exclusive right to use. Of course, in addition, there are also licensing rights, transfer rights, and prohibition rights. . In layman's terms, the most important way for a trademark owner to exercise its rights is to directly use the trademark.
***Are there any rules for permission of third parties to use by each party?***Someone unanimously agreed. Different from the rules for the owner of property rights to dispose of the owned property, if the owner of trademark rights permits a third party to use it or establishes a pledge, the unanimous consent of the owner must be obtained. Because the permission of any party will have a huge impact on other parties. Trademark rights can be divided into share-based ownership and joint ownership. Each owner of a shareholding is free to allow a third party to use it within its own share, or to set up a pledge, but it must not harm the interests of other owners.
Is there a trademark rights protection subject in ***? Everyone in *** has the right to defend their rights. The difference between trademark rights and other types of rights is that it is more of a prohibition right, that is, to exclude others from using the same or similar trademarks on the same or similar industry goods or services. Once someone uses it illegally, the right holder can claim infringement and exercise his right to prohibit it. When ***'s trademark is infringed, any party to ***'s rights, whether *** owns it by share or *** and ***'s *** owner, can claim it as ***'s owner. The trademark owner may request to cease infringement, eliminate obstruction, preserve property, compensate for losses, etc., without the unanimous consent of all parties.
What are the rules for the transfer of trademark rights to all parties? All parties agreed unanimously. Each owner of a trademark right in shares has the right to transfer his or her share. However, my country’s Trademark Law does not explicitly stipulate whether such transfer requires the unanimous consent of other owners. The owner's share of the trademark right cannot be transferred at will. For example, in Japan, Article 73 of the Japanese Patent Law is applied mutatis mutandis in accordance with Article 35 of the Japanese Trademark Law. Sometimes, trademark rights cannot be transferred without the consent of other owners. No one in each *** can transfer his or her share. Those who own the shares cannot be transferred, and those who have the same rights cannot transfer their rights at will. However, under the premise of unanimous consent to the transfer mentioned above, other parties will have priority under the same conditions.
Does anyone in each *** have rules for setting encumbrances on trademarks? Unanimous agreement is required. In recent years, there have been more and more ways of using intellectual property as collateral to pledge financing, which is a good thing for revitalizing intellectual property assets. However, if the most owned trademarks are used as collateral to establish encumbrances, it may The result is that when the pledgee cannot repay the corresponding funds, the trademark is likely to be auctioned or sold to repay the debt. This will actually lead to the transfer of the trademark. Therefore, it is entirely possible to refer to the above-mentioned share transfer situation for details. deal with.