Article 5 of China's currently applicable Trademark Law (the second amendment in 200 1) stipulates:? Two or more natural persons, legal persons or other organizations may apply to the Trademark Office for registration of the same trademark and enjoy and exercise the trademark right. ? Visible, for trademark rights, especially between natural persons, China has laws to follow. However, after the relationship between * * * is determined, there is a lack of specific exercise rules, because the characteristics of trademark rights make it difficult to apply the rules of property law. The theoretical research and practical cases in this field are very limited, so it is necessary to discuss the rules of exercising * * * rights between trademark owners.
There are kinds and characteristics of trademark rights.
At present, the relevant laws do not clearly define the types of trademark rights. It is generally believed that * * * of trademark rights can be divided into * * * and * * * with * * *. If the agreement is not clear, it is presumed to be * * * and * * *, based on Article 88 of the Supreme People's Court's Opinions on Several Issues Concerning Implementation. For * * * property, some * * * people claim that * * * is owned by shares, and some * * * people claim that * * * is owned by shares. If it cannot be proved that the property is owned by shares, it shall be deemed that * * * is owned by shares. ? Therefore, the parties shall enjoy the trademark right by stages or whether there is an agreement between * * * and * * * or the agreement is unclear, so it is presumed that * * * and * * * have it.
Some important characteristics of trademark right are the majority of the right subject, the legitimacy of right determination and the particularity of right exercise.
First, the majority of the right subject. * * * The subject of trademark right is two or more natural persons, legal persons or other organizations, and they enjoy the exclusive right to the same trademark based on the same registration, the same assignee or other legal reasons. This feature is relative to non-* * existence and can't be distinguished from other * * * relationships.
Second, the legitimacy of the determination of rights. * * * Trademark right is the right of several subjects to the same trademark, which needs to be registered with a legal institution, because trademarks play a role in defining the sources of different commodities, and the acquisition, licensing and transfer of their rights must go through legal procedures, and the time limit for their enjoyment is also stipulated by law.
Third, the particularity of the exercise of rights. * * * The object of rights with trademark right is a trademark, not a tangible object, which leads to the particularity of the exercise of rights.
Trademark right and its carrier
Trademark right * * * is owned by * * * with * * * or owned by * * *, which is not clearly defined in law, but generally it can be divided into * * * with * * and * * *. Some people think it is necessary to be based on the separability of trademarks owned by * * *. What is divisible? That is, a trademark should be registered on several different categories of goods, which makes segmentation possible and separable. If a trademark is registered only on one kind or one kind of goods, it is inseparable. Even if someone agrees to divide it, their consent is invalid. This paper holds that this view confuses the share of rights and the number of rights carriers, but in fact they are completely different. Some people enjoy the exclusive right to use trademarks, and specific goods are only the carrier of this right. Trademark? Rainbow? For example, * * * someone enjoys a trademark? Rainbow? Exclusive use, and? Rainbow? The registration of a trademark has nothing to do with how many goods. According to this view? Rainbow? If the registered category of trademarks is clothing and electrical appliances, then some trademarks of this * * * can be divided, and the right subject can be divided into one with clothing trademarks as the main body and the other with electrical appliances trademarks as the main body. However, if there is only one kind of clothing, there is no separability and it cannot be * * *, and the further conclusion is that it can only be * *. This is obviously wrong. According to this logic, even if a trademark is like? Rainbow? It registered two kinds of goods, but what if? Rainbow? The main category of trademarks is clothing, and the proportion of rights holders is 50% respectively, so it is obviously difficult for a person who only enjoys electrical appliances to be fair and reasonable. Therefore, the * * * of a trademark should be the * * * of the trademark right, regardless of the number of carriers of the right. No matter how many commodities a trademark is registered, it does not affect the identification of its * * * type.
Trademark rights * * * Rules for the exercise of rights
After defining the types of trademark rights that can be owned by * * * and owned by * * *, the most urgent problem in practical application is to construct the rules for trademark owners to exercise * * * rights.
Trademark rights * * * Some people directly use trademarks, and each * * * has unlimited direct use rights. Trademark right is different from ownership. The power of the latter includes four functions: possession, use, income and disposal. The basic right of trademark right is exclusive right, but there are also licensing right, transfer right and prohibition right. Generally speaking, the main way for trademark owners to exercise their rights is to use trademarks directly.
* * * It is stipulated that all parties allow third parties to use * * * and it is unanimously agreed. Unlike the rule that the property right * * * is disposed of by someone * * *, the license or pledge of the trademark right * * * by a third party must be approved by the owner of * * *. Because the permission of either party will have a great impact on the other party. Trademark rights can be divided into * * * and * * * with * * *. According to the share of * * *, each * * has the right to freely license a third party to use or set a pledge within its share, but it shall not harm the interests of other * * * owners.
* * * There are trademark defenders, and everyone has the right to defend their rights. Trademark right is different from other types of rights, and it is more of a prohibition right, that is, it excludes others from using the same or similar trademarks on the same or similar industrial products or services. Once someone illegally uses it, the obligee can claim its infringement and exercise his own prohibition right. When some trademarks of * * * are infringed, either the owner of * * * or the co-owner of * * * * * * can ask the trademark owner of * * * to stop the infringement, remove obstacles, preserve property and compensate for losses, without the unanimous consent of all * * *.
Trademark rights * * * Some people share transfer rules shall be unanimously agreed by all * * * people. Every * * * owner who owns the trademark right by share has the right to transfer his share, but whether the transfer requires the unanimous consent of other * * * owners is not expressly stipulated in China's Trademark Law. * * * The owner's share of trademark rights cannot be transferred at will. For example, Japan applies mutatis mutandis the provisions of Article 73 of the Japanese Patent Law according to Article 35 of the Japanese Trademark Law. Sometimes, the trademark owner cannot transfer his share without the consent of other rights holders. According to * * * copies are non-transferable, * * * and * * * some people cannot transfer their rights at will. However, on the premise that the aforesaid transfer is unanimously agreed, other * * * owners shall enjoy priority under the same conditions.
All * * * people need to agree on the rules of trademark rights burden. In recent years, there are more and more financing methods with intellectual property as collateral, which is good for revitalizing intellectual property assets. However, if the trademark owned by * * is used as collateral to set the right burden, the possible result is that when the pledger cannot repay the corresponding funds, the trademark is likely to be auctioned or sold to pay off the debts, which will actually lead to the transfer of the trademark. Therefore, it can be handled with reference to the above-mentioned share transfer.