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Business risks in trademark agency
as a trademark agency, the business risks in trademark agency should strictly abide by the provisions of this law. If the agency fails to perform its obligations or there are faults (or defects) in its agency behavior, it should be liable for compensation. Several common disputes in trademark agency service: 1. Inquiry is the pre-business of trademark registration, aiming at reducing the risk of registration and the probability of rejection of registration application. Inquiry is not a legal procedure and should follow the principle of voluntariness. Trademark agencies are prone to encounter two problems when inquiring. First, they can't inquire about the latest trademark application information in a certain period, which is commonly called "dark period" in the industry. This is a technical reason and cannot be avoided at present. Second, there is an error in the judgment of the query results (mostly the judgment of trademark similarity). Because the trademark agency is only a legal service agency in nature, its judgment on the query results is an empirical suggestion, which has no legal effect and is for reference only. No matter whether it can apply or not, it does not represent the official opinion. Therefore, the above two cases should be explained to the applicant in advance, and the knowledge should be obtained, and written things should be formed as much as possible to avoid future disputes. 2. In the practice of obtaining the Trademark Registration Certificate, there have been various phenomena that the Trademark Registration Certificate was falsely claimed. For example, the trademark agent of an enterprise left his post during the examination and approval of the trademark registration application, and then the trademark agency informed him to receive the Trademark Registration Certificate through his reserved mobile phone number, which led to the fraudulent use of the Trademark Registration Certificate. "Trademark Registration Certificate" is a legal document, and being impersonated may lead to serious legal consequences and directly lead to conflicts between trademark agencies and trademark owners. From the legal nature of the agency relationship, whatever the reason, the Trademark Registration Certificate was impersonated, because the trademark agency was lax and its agency behavior was negligent, so it was hard to blame. A better way is for the witness to take the Business License or the identity certificate of the trademark owner (referring to a natural person) and sign it. 3. Prevention of False Transfer As the application for trademark transfer only requires the transferor and the transferee to sign or affix their official seals on the application form, the operation itself has the possibility of falsely transferring other people's trademarks by means of private engraving, stealing official seals and counterfeiting other people's signatures, which is not uncommon in practice. From the legal nature, trademark right is also a kind of property right, and the false transfer directly leads to the loss of others' property rights, which belongs to civil disputes. The Trademark Law does not give the Trademark Office the right to mediate civil disputes, so it is not feasible to ask the Trademark Office to solve the false transfer disputes in procedure. The parties should choose legal proceedings to solve the problem. In the process of dispute settlement, if the transfer application has not been approved and announced, and the trademark right has not been transferred, you can apply to the court for property preservation measures in litigation, and the Trademark Office will suspend the examination of the transfer application according to the court's request for assistance in execution. If the transfer application has been approved and announced, and the trademark right has been transferred, only after the court decides that the transfer is invalid, it can request the Trademark Office to revoke the relevant transfer according to the effective legal documents. At the same time, you can also report to the public security organs for acts such as private engraving and stealing official seals, and investigate their criminal responsibility according to the crime of forging unit seals stipulated in the second paragraph of Article 28 of the Criminal Law. The essence of false transfer is that the false transferor disposes of the trademark rights of others, which can be a unilateral act of the false transferor or a conspiracy between the false transferor and the transferee. Subjectively, it is direct and intentional, and objectively, it has taken acts such as cheating and concealing the truth (referring to private engraving, stealing official seal or forging signature). As an intermediary organization, the trademark agency is entrusted by the transferee to apply for transfer. If the transfer fails, it will harm the interests of the transferee (except that the transferee colludes with the false transferor) and will be held accountable by the transferee; If the transfer is successful, the trademark agency will be held accountable by the real trademark owner. Whether the trademark agency has the right and obligation to examine the authenticity of the transfer intention and the authenticity of the signature is not clearly stipulated in law, and it is difficult to judge whether there is a causal relationship between the agency behavior of the trademark agency and the consequences caused by the false transfer. Therefore, in order to reduce risks and prevent the above disputes from interfering with normal operations, trademark agencies should take more self-discipline precautions, such as requiring both parties to produce a Notary Certificate, requiring both parties to sign a Letter of Guarantee to ensure the authenticity of the transfer, and requiring their legal representatives to handle it in person. 4. Legal documents on trademark protection against false signatures or signatures shall be signed by the legal representative or trademark owner (especially natural persons) before they can take effect. The new Trademark Law stipulates that natural persons can become the subject of trademark legal affairs. Starting from the legal essence that agency relationship is an authorized relationship, signature is a very serious civil legal act in handling trademark legal affairs, which will have an extremely important impact on trademark agencies. Article 41 of the Trademark Law stipulates that if a registered trademark violates the provisions of Articles 1, 11 and 12 of this Law, or is registered by deception or other improper means, the Trademark Office shall revoke the registered trademark; Other units or individuals may request the Trademark Review and Adjudication Board to make a ruling to cancel the registered trademark. The relevant explanation gives a very precise definition of deception or other improper means: deception is manifested in fiction, concealing the truth or forging trademark registration applications and related documents, such as forging identity cards or business licenses, or forging use certificates. Using these methods to register a trademark or handle other trademark legal affairs is flawed in itself and does not conform to the provisions of the Trademark Law, which will lead to serious consequences. In practice, there has been a phenomenon that agents sign instead of the principal for convenience. Some agents even suggest that enterprises whose official seals have been destroyed privately carve their official seals to handle trademark legal affairs in order to save trouble. Article 66 of the General Principles of the Civil Law stipulates that the principal shall bear civil liability only after the agent's ratification of the act without agency, beyond agency or after the termination of agency. If an act is not ratified, the actor shall bear civil liability. If I know that someone else has committed a civil act in my name without denying it, it shall be regarded as consent. Signature is a kind of civil legal act. Without the authorization of the principal, the agent has no right to implement it on his own. The signature act carried out by an agent without agency right or beyond the agency right belongs to the act carried out by deception or other improper means as mentioned above, which may lead to serious consequences. Once there is a dispute, and there is no evidence to prove that the agent's signature behavior is authorized by the principal, or the principal refuses to ratify it, it will make the trademark agency very passive. As for the act of suggesting the principal to carve the official seal privately, it is illegal in itself, and it is really detrimental to the image of the trademark agent's legal worker.