International technology trade takes intangible technical knowledge as the main transaction object. This technical knowledge constitutes the content of international technology trade, which mainly includes: patented technology, trademarks and proprietary technology. Although trademark is not technology, it is closely related to technology, so it is often regarded as one of the basic contents of international technology trade. There are different opinions on what a patent is. The World Intellectual Property Organization defines "patent" as: A patent is "a document issued upon application by a government agency or a regional agency representing several countries) that describes an invention and gives it a legal status, that is, the patented invention can usually only be exploited (manufactured, used, sold, imported) with the authorization of the patent holder..." Here, "patent" is understood to have three meanings. One refers to patent documents such as patent certificates; the other refers to the specific legal status granted by the patent authority to the invention itself. Once a technical invention obtains this legal status, it becomes a patented invention. or patented technology; the third refers to patent rights, that is, the exclusive right to use a patented invention obtained by the inventor of an invention that has obtained legal status, which includes exclusive rights (ownership), implementation rights (including manufacturing rights and use rights), licenses Right to use, sell, import and waive rights. In short, patent rights are the rights of the patent holder (or patentee) to control the patented invention. In our country, patent rights are granted on a first-to-file basis. Patent rights are protected by a special law called the Patent Law. It can be seen that the concepts of patent, patented technology, patent right and patentee are closely related.
Patent rights have their own distinct characteristics. (1) Patent right is a power granted by law. The inventor's application, and the patent authority's review and approval, allow his invention to obtain legal status and become a patented invention, and he himself also obtains patent rights; the emergence of this kind of right is different from the natural occurrence of property rights. . (2) Patented technology is a kind of intellectual property and intangible property. Patent right is a special kind of property right. (3) Patent right is an incomplete ownership right. Obtaining patent rights is predicated on the inventor disclosing the content of his invention. It is difficult for public knowledge to be truly unique to the inventor. (4) Patent right is an exclusive (exclusive, proprietary) right. Only one company can obtain a patent for a specific invention. Only the patentee can use this patented invention, and others cannot use the patented invention without the permission of the patentee. (5) Patent right is a territorial right. Patent rights are only effective within the jurisdiction of the patent approving authority. (6) Patent right is a time-based right. The validity period of patent rights is generally 1020 years. Beyond this time, the patent right becomes ineffective.
Patents are often divided into three types based on the degree of creativity and other characteristics of the patented technology. (1) Invention patent. The so-called invention refers to a new technical solution proposed for a product, method or improvement thereof. It is a new solution that uses the laws of nature to solve specific technical problems in practice. Inventions can be divided into two categories, one is product invention, the result of which is a new product; the other is method invention, the result is a new method of manufacturing a product or testing or operating. (2) Utility model patent. A utility model is a new technical solution proposed for the shape, structure or combination of a product that is suitable for practical use. In fact, a utility model is also an invention. The difference between it and the above-mentioned invention patent is that a utility model is an invention that is only suitable for products and has a low level of creativity and can be directly applied (some people call it a "small invention"). In practice, there are so many "little inventions" like utility models that a few countries in the world, including China, separate them from inventions and protect them separately. Utility model patents have low conditions, simple approval procedures, and low fees, which are conducive to encouraging many small inventors. (3) Design patent. Appearance design refers to a new design of a property's shape, pattern, color or their combination that is aesthetically pleasing and suitable for industrial application. It is different from a utility model. The design of the shape of the product in the exterior design is mainly to make it look good, while the design of the shape of the product in a utility model is mainly to increase the use value of the product and make it have new functions, mainly to make it easy to use. The design covered by a patent is actually an industrial design, which is different from a purely fine art work. The shape, pattern and color can only be considered a patented design if they are reflected in a finished product that has an independent purpose. It attracts consumers through the design of appearance, pattern and color without affecting the use of the product.
A trademark is a distinctive mark that a producer or operator of goods adds to his or her goods in order to distinguish his or her own goods from those of others. Common trademarks are word trademarks and graphic trademarks. There are three-dimensional trademarks abroad, such as the special shape of the "Coca-Cola" beverage bottle. There are also sound trademarks, smell trademarks and other forms. Trademarks can be broadly divided into three categories: manufacturing marks, commercial marks, and service marks.
Generally, only goods that can be moved and produced repeatedly use trademarks. Trademarks must have distinctive features, that is, identical or similar goods cannot use the same or similar trademarks.
The functions of trademarks: (l) Distinguishing function, that is, trademarks can indicate the source of products and distinguish the products of one enterprise from those of another similar enterprise. This is the most basic and important function of a trademark. (2) The function of indirectly marking product quality. Depending on the origin of the product, its quality and reputation will vary. A trademark serves as a mark of a product of a specific origin, which indirectly reflects the inherent quality of the product. When people purchase goods, they generally cannot check their inherent quality on the spot. Instead, they often choose goods with a certain quality they want based on their own experience and the social reputation of the goods and the trademarks. (3) Advertising function. Due to the simplicity and "distinctiveness" of a trademark, it is most easily remembered by consumers, making the trademark an eye-catching advertisement.
Trademark rights. Trademark right is the exclusive right of a trademark user to apply to the trademark management department for registration and get approval. However, in a few countries, trademark rights are obtained due to the first use of the trademark. In our country, trademark rights are obtained based on the first-to-register principle. Trademark rights include the right to use, the right to prohibit (forbid others to use), the right to transfer, the right to license and the right to waive. Trademark rights are protected by the Trademark Law, a specialized law.
Characteristics of trademark rights. (l) Trademark right is an exclusive right. (2) Trademark is an intangible intellectual property. Trademark right is a special property right. (3) Trademark rights are time-limited but can be extended indefinitely. Unlike patent rights that cannot be extended upon expiration, trademark rights can be renewed and extended upon expiration, and there is no limit to the number of extensions. (4) Regionality. Trademark rights are only valid within the jurisdiction of the registration agency. International conventions for the protection of industrial property rights:
Industrial property rights refer to the exclusive rights granted by law to the owners of intellectual products in industrial activities over their creative intellectual achievements. Patent rights and trademark rights are industrial property rights. Industrial property rights and copyrights are collectively known as intellectual property rights. They are protected by special laws. First, it is protected by the domestic laws of each country. However, due to the international trade of goods and technology, international protection of industrial property rights has become necessary. To this end, international conventions for the protection of industrial property rights were created. Below is a brief introduction to the relevant conventions that our country has joined.
In June 1980, my country officially became a member state of the World Intellectual Property Organization Convention. The Convention entered into force on April 26, 1970. Its purpose is to promote the protection of intellectual property rights around the world and ensure administrative cooperation among various intellectual property alliances through cooperation between governments and appropriate coordination with other relevant international organizations.
In March 1985, my country officially joined the Paris Convention for the Protection of Industrial Property. The Convention was signed in Paris on March 24, 1883. It is the earliest international convention signed on the protection of trademark rights and patent rights. The Convention stipulates the specific objects of industrial property protection and the applicable principles of national treatment and priority, as well as the convention rules that contracting parties must abide by.
In October 1989, my country officially joined the Madrid Agreement on the International Registration of Trademarks. The agreement was signed in Madrid, Spain on April 14, 1891. It stipulates the application for international registration of trademarks, the qualifications of applicants, the validity and duration of international registration, and the prohibited signs for trademarks applying for international registration. After my country joins the Convention, owners of registered trademarks in my country can apply for international trademark registration.
In April 1994, my country officially joined the Patent Cooperation Treaty. The treaty was signed in Washington on June 19, 1970. It is a special agreement accompanying the Paris Convention for the Protection of Industrial Property. Its purpose is to make the work of obtaining invention protection simpler and more economical.
In August 1994, my country officially joined the Nice Agreement on the International Classification of Goods and Services for the Purpose of Trademark Registration. The agreement was signed in Nice, France on June 1, 1957.
It stipulates that countries participating in the agreement adopt a consistent classification list of goods and services for trademark registration.
In addition, our country is also the first signatory to the "Regulations on the Protection of Intellectual Property Rights of Integrated Circuits" passed in Washington in 1989. However, due to opposition from developed countries such as the United States and Japan, the regulations have not yet taken effect. In April 1994, my country also signed the Agreement on Trade-Related Aspects of Intellectual Property Rights reached during the Uruguay Round of the General Agreement on Tariffs and Trade. The English name of proprietary technology is "Know-how", which means "know how to make". It has many Chinese names: technical know-how, technical secrets, expertise, etc. There is also a literal translation of "Nuohao", but the most commonly used name is "proprietary technology".
The so-called proprietary technology refers to confidential technical knowledge, experience and skills that have been used in practice and have no special legal protection. Proprietary technology can be the idea of ??a product or a method, but it is different from patented technology in many aspects. (1) Patented technology must be teachable through language. Although proprietary technology must also be teachable, it may not all be teachable, and some can only be taught through "example". (2) Proprietary technology is technology that is kept secret; patent technology is public technology. (3) Proprietary technology does not have special legal protection, so it does not belong to intellectual property rights. (4) Patented technology is a static technology fixed by patent documents, while proprietary technology is a dynamic technology that is full of changes. (5) The period of protection or monopoly of patented technology is limited (up to 20 years), while proprietary technology is monopolized by keeping it secret, so the period of monopoly is indefinite.
Proprietary technology is also a kind of intangible intellectual property. In addition to being protected by confidentiality means, it is also protected by law. In practice, proprietary technology is protected by citing contract law, the Law on the Prevention of Infringement, the Anti-Unfair Competition Law and the Criminal Law. However, the legal protection of proprietary technology is far less than the protection of patented technology by patent law.