Trademark right refers to the right of the trademark owner to possess, use, benefit and dispose of the trademark he uses according to law, and it is an exclusive right of the trademark owner to his trademark. Trademark right is an important right in the field of intellectual property rights, which originated from modern western society. It is a new right for a trademark to change from the privilege of a trade association to a civil right. It belongs to industrial property right together with patent right, trade name right and name of origin.
Trademark has a long history in China, but the trademark right in the real modern sense did not appear in the society before modern times in China, and its decline as a guild privilege to civil rights occurred in the late Qing Dynasty in China. Moreover, the first appearance of "trademark right" as a legal term in China was in the Sino-British Treaty of Continuing Trade and Navigation signed by the Qing government and Britain on September 5th, 902. Article 7 of the treaty stipulates: "The China government forbids people to imitate, because the British government enjoys the trademark right. This article also stipulates that all British people can enjoy the same interests within the territory of the China government." Since then, the expression of "trademark right" has appeared again in the Draft Trademark Law compiled by the Ministry of Agriculture and Commerce of Beiyang Government.
However, in the trademark laws and regulations after New China, the status of trademark right has been replaced by "exclusive right to use a trademark", and its status as a civil right has not been reflected in trademark legislation.
The exclusive right to use a trademark refers to the exclusive right of the trademark owner to use his trademark according to law. At the same time, because China's current trademark law implements the principle of trademark registration, trademark rights are mainly obtained through registration, so the trademarks mentioned here mainly refer to "registered trademarks", while unregistered trademarks do not enjoy the exclusive right to use trademarks.
In the history of Chinese trademark development, the exclusive right to use a trademark has a long history almost as long as the trademark right. As a trademark right, the emergence of the exclusive right to use a trademark is closely related to the emergence of the trademark right in modern China. As mentioned above, the earliest appearance of trademark rights in China was in the Sino-British Treaty of Continuing Trade and Navigation signed by the Qing government and the British powers in 1902, and the appearance of the exclusive right to use trademarks was the first written trademark law-the Articles of Association for Trial Registration of Trademarks, which was formulated by the Qing government at that time under external pressure in order to realize the trademark protection clauses including the aforementioned treaties.
This regulation was drafted by Hurd, an Englishman who was in charge of China Customs at that time, and was implemented by the customs controlled by foreigners. Among them, the principle of registration protection and the principle of first application are established, and it is also stipulated that big countries enjoy consular jurisdiction in the field of trademarks in China. Moreover, this registration system of "customs registration" has been implemented for more than 20 years, and there are more than 25,900 trademarks registered in the customs, most of which are foreign trademark (3). Therefore, in the process of formulating the Trial Trademark Registration Charter by the Qing government, the abandonment of "trademark right" and the adoption of "trademark exclusive right" were to some extent out of emphasizing the importance of protecting the trademark privileges of foreign powers, rather than the real intention of protecting trademarks as civil rights. Although the expression of "exclusive right to use a trademark" was also used in later trademark laws and regulations, the connotation and extension of both have undergone substantial changes.
Second, the connection and difference between trademark right and trademark exclusive right.
(1) The concept of "exclusive right to use a trademark" used in China's current trademark legislation embodies the most basic core meaning and attributes of the trademark right, but it fails to cover all its rights.
Traditional civil law theory holds that ownership is exclusive, that is, property right, self-property right, world right and domination right. According to Article 7 1 of General Principles of Civil Law, ownership includes four functions: possession, use, income and disposal, each or more of which can be separated from ownership. The so-called trademark right refers to the legal (statutory) rights enjoyed by the registered trademark owner, so it is also a kind of ownership with special attributes, and it is an exclusive legal right granted to the trademark owner by the state organs in accordance with the procedures prescribed by law. It is a collective concept, and its rights include trademark ownership, trademark exclusive right, trademark prohibition right, trademark renewal right, trademark transfer right, trademark license right and trademark litigation right. Among these rights, the exclusive right to use a trademark occupies a particularly important position and is the basic core right. Other rights come from the exclusive right to use. The concept of "trademark exclusive right" currently used in China embodies its basic core meaning, but it fails to cover all its contents. As a special kind of ownership, the owner's right is far more than exclusive use. For example, when the obligee sets a pledge for the trademark right, the trademark owner's rights include the right to transfer, license, renewal, prohibition and litigation, but not the exclusive right. With the in-depth development of China's socialist market economy, trademark rights will probably produce more rights.
(2) The use of the concept of "trademark exclusive right" in China's current trademark legislation legally limits its value as intellectual property, such as inheritance, pledge and transfer, which is not conducive to its further enrichment in the future.
Trademark right, as a kind of intellectual property that can bring wealth, belongs to the category of property right, just like creditor's rights and property rights. It should be obtained initially and through inheritance and transfer, thus reflecting its use value and exchange value as a property right. According to the general principle of inheritance law, all personal legal property left after the death of a citizen belongs to the category of property inheritance. Property inheritance law is not only applicable to the inheritance of tangible property, but also to the inheritance of intangible property. The trademark right enjoyed by citizens also applies to property inheritance after the death of citizens. The inheritance law promulgated by China 1985 only mentions the property rights in copyright and patent rights as inheritance, but does not mention trademark rights. This may be mainly related to the fact that the exclusive right to use registered trademarks in China at that time could not be obtained by natural persons (citizens). However, in the later legislative expression, there is no clear stipulation on the inheritance of trademark rights. However, according to Article 4 of the Trademark Law revised by 200 1, natural persons can obtain the exclusive right to use a trademark.
Provisions, and Article 26 of the Regulations for the Implementation of the Trademark Law promulgated in 2002, "If the exclusive right to use a registered trademark is transferred for reasons other than transfer, the party accepting the transfer of the exclusive right to use a registered trademark shall go through the formalities for the transfer of the exclusive right to use a registered trademark at the Trademark Office with relevant certification documents or legal documents" and Article 47 and paragraph 1, that is, "the trademark registrant dies or dies, If the registered trademark has not been transferred since the date of death or termination 1 year, anyone can apply to the Trademark Office for cancellation of the registered trademark, which indirectly infers that the current legislative provisions actually recognize the inheritance of the exclusive right to use a registered trademark. That is to say, when a trademark registrant who is a natural person dies, the legal obligee shall go through the formalities for the transfer of the registered trademark within the statutory time limit, and the exclusive right to use the registered trademark will be transferred to the new obligee, who will inherit the trademark. However, if the trademark right is only a kind of "exclusive right", it will more reflect its personal dependence and will not exist with the death of the obligee, which is contradictory to the inheritance activities transferred for reasons other than transfer.
Furthermore, according to the Guarantee Law promulgated by China 1995 and related judicial interpretations, it is not appropriate to set a pledge on "transferring the exclusive right to use a trademark according to law". First, the so-called "exclusive right" can be literally understood as "exclusive right to use", which theoretically limits the trademark right to a single subject, so that this exclusive right to use a trademark cannot produce a legal relationship in derivative acquisition, and neither natural person nor legal person can transfer its "exclusive right to use a trademark". Second, a trademark can be used as a pledge of property, and its essence is the trademark right of the trademark owner. Legally speaking, as a pledge, the first requirement is that the pledgor must have the right to dispose of the pledge, usually it must be the owner of the pledge or the person with the right to dispose of it. The pledge cannot be established unless it is the owner or the person who has the right to dispose of the pledge. If the trademark owner only has the exclusive right, there is no legal basis for it to be "transferable according to law". If he does not have the right to dispose of it, he cannot set the pledge right. Therefore, only by adopting the expression of "trademark right" in legislation can we reflect the content of real right with a kind of ownership attribute, and it is logical to set up the pledge right.
(3) At present, the concept of "exclusive right to use a trademark" in China's legislation cannot reflect that the trademark owner enjoys both the positive right to do and the negative right to prohibit. Trademark right belongs to the category of intellectual property. The nature of intangible property rights enables the trademark right to rely on the authority of the law, giving the trademark owner exclusive and exclusive use of its registered trademark on the designated goods, so as to prevent and punish counterfeiting and infringement that others are easy to implement. This kind of exclusive use right is the expression of the effectiveness of trademark rights. Theoretically, this effect of trademark right is called "positive effect", or "right to use" or "exclusive right". It can be seen that the exclusive right to use a trademark is the most important legal feature of trademark rights, and it is also the purpose of trademark registration applicants to obtain trademark rights according to law. It is for the above reasons that some people often think that trademark right is the abbreviation of trademark exclusive right and use it indiscriminately. In fact, as an intellectual property right, its obligee not only enjoys the right content of "behavior", but also enjoys the right content of "prohibition". Trademark prohibition means that the trademark owner has the right to prohibit others from using a trademark that is confused with its registered trademark without permission, to prohibit others from making or selling its registered trademark logo without authorization, and to prohibit others from using words and graphics that are the same as or similar to the trademark name or commodity decoration on the same or similar goods. This effect of trademark right is called "negative effect" of trademark right. Without this right, the source of goods will be confused, the use of registered trademarks will be hindered, and the interests of trademark owners and consumers will be harmed.
Exclusive right and prohibition right belong to the content of trademark right, and they are two aspects of trademark right, and they are parallel. According to article 5 1 of the current Trademark Law, "the exclusive right to use a registered trademark is limited to the registered trademark and the goods approved for use; According to Article 52 of the Trademark Law, except for the first case, the effectiveness of the prohibition right coincides with the scope of the exclusive right, and the other four places are larger than the registered items and beyond the scope of the exclusive right. That is to say, although a trademark registrant can't use the trademark outside the registered project, he can stop others from using the trademark outside the registered project. Obviously, the scope of prohibition is greater than that of exclusive right. Therefore, it is difficult to cover the negative right of "prohibition right" by using the concept of "trademark use right", which can not reveal the essence of trademark rights as intellectual property rights, and is not conducive to distinguishing and judging the fundamental boundary between infringement and non-infringement, and to the legal protection of trademark rights.
As can be seen from the above, the connotation of trademark right includes not only the exclusive right to use a trademark, but also various rights such as prohibition right, transfer right, license right, pledge right and renewal right. As an important part of trademark right, the exclusive right to use a trademark shows that the trademark owner enjoys the exclusive right to use his trademark according to law, which is the core of trademark right and closely related to trademark right. However, they obviously have different connotations and extensions. If the exclusive right to use a trademark is used instead of the trademark right, it can neither reveal the whole essence of the trademark right as an intangible property right, nor cover all the rights enjoyed by the trademark owner. Therefore, in the process of learning, we should not only understand the trademark right through the exclusive right to use a trademark, but also treat the exclusive right to use a trademark in the trademark law differently from the usual exclusive right to use a trademark.
Third, the practical significance of trademark right replacing trademark exclusive right 1, and the substantial return of trademark right as a civil right.
In the early stage of the development of China's trademark law, the use of trademarks has always had a certain guild nature and planned economy color. For example, in the Regulations on Trademark Management (1963) formulated in the early days of the founding of New China, a trademark was once regarded as "a symbol representing a certain quality of goods, and the administrative department for industry and commerce should supervise and manage the quality of goods jointly with relevant departments". And "trademarks used by enterprises shall apply to the Administration for Industry and Commerce for registration. For goods that do not use trademarks, if it is necessary and possible to indicate the name and address of the enterprise on the decoration or trademark of the goods, it should be indicated for management. " At this time, the trademark right is obviously different from the current trademark right. The main body of its trademark registration application is limited to enterprises, and trademarks are not enjoyed by the public as property. With the promulgation and two amendments of 1982 Trademark Law, the trademark right has been transformed from a guild privilege to an ordinary civil right, and the subject of trademark right has also developed from a single enterprise to an ordinary natural person. In the Trademark Law, the status of trademark right has been replaced by "exclusive right to use a trademark", and its status as a civil right has not been reflected in trademark legislation.
The third revision of the Trademark Law confirms the trademark right in the form of law, which will effectively remedy this defect and make the trademark right known and accepted by the general public as an ordinary civil right. Moreover, it will effectively raise the public's awareness of trademark rights and actively cultivate and develop independent brands.
2. Balance and perfection of intellectual property legislation system.
Although China's intellectual property legislation started later than the developed countries in the world, it has also established a complete legal protection system for patents, copyrights and trademarks, and the innovation and protection of intellectual property rights have also received strong support from the state. Among them, patent right and copyright have been confirmed and protected by law in the Patent Law and Copyright Law, while trademark right has been fully protected in the Trademark Law, but it has been replaced by the exclusive right to use a trademark, and "trademark right" still exists only as a legal concept. This phenomenon has attracted the attention of many experts and scholars in the field of intellectual property rights. Professor Zheng, a former member of the Law Committee of the National People's Congress, put forward the view that the "exclusive right to use a trademark" in the Trademark Law should be correctly expressed as "trademark right" on the eve of the second revision of the Trademark Law.
In the third revision of the Trademark Law, if the trademark right can be legally confirmed, China's intellectual property legislation system will be well improved, and the theoretical research of China's trademark law will be closely combined with legislative practice.
3. It conforms to international expressions and facilitates international exchanges and cooperation.
At present, the expression of "trademark right" is used in most countries' trademark laws and related trademark treaties. For example, the European Provisions on the Same Trademark, the Uniform Trademark Law of the Benelux Economic Union, the Danish Trademark Law, the Japanese Trademark Law and the British Trademark Law all use the expression of "trademark right". As a trademark owner's right to a trademark, "trademark right" has been recognized by most countries. However, in China's Trademark Law, the "exclusive right to use a trademark" has always been used as a substitute for trademark rights, which is different from the general expression in the world. If the status of trademark rights as civil rights can be confirmed in the form of law in this revision of trademark law, it will be more conducive to international trademark exchanges and cooperation between China and other countries, and will also establish a good image of China's civil rights protection legislation internationally, and will also provide positive exploration space for the revision and improvement of China's current trademark legal system.