Elements of bona fide acquisition of the exclusive right to use a registered trademark

(1) The trademark transferor has reasonable and reliable reasons.

The premise of obtaining a trademark in good faith is that the subject of the transferred trademark has reason to convince the third party that it has the right to dispose of it in appearance. This reason can come from the credibility generated by the registration information of the trademark management authority. For example, if the trademark assignor is the person in charge of the subject of trademark registration, it should be considered as a credible reason.

(2) No right to dispose of the transferred trademark.

The transfer of trademark rights must be unauthorized, that is, the actor has no right to dispose of it, but implements the transfer of the exclusive right to use a registered trademark in the name of the trademark owner (usually the enterprise to which the actor belongs).

(3) The third party accepts the trademark in good faith.

It is an important consideration for the bona fide acquisition system to protect the interests of the third party that the third party accepts the trademark in good faith. On how to confirm goodwill, there are "positive theory" and "negative theory" in theory, and Chinese scholars tend to "negative theory", that is, the assignee does not know or should not know that the assignor has no right to dispose of the assigned rights. [4] However, acquisition in good faith is not applicable if the transferee is ignorant due to gross negligence. For example, the information obtained in the transaction is enough to arouse the reasonable suspicion of the general public on the disposer, but it is a gross negligence for a third person to ignore it and act rashly out of slack. [5] To judge the goodwill of the transferee, we can make a comprehensive judgment with reference to the following facts: 1. The transaction price is obviously lower than the market price without justifiable reasons; 2. The transferor's identity is suspicious or his words and deeds are suspicious at the time of the transaction; 3. The parties to the transaction are closely related. [6] Therefore, if there is evidence that the trademark assignee colludes with the assignor in bad faith, or the trademark assignee should have known the illegality of the assignment in the process of trademark assignment but did not know it due to gross negligence, it will destroy the establishment of "goodwill".

(4) The third party obtains the trademark right at a reasonable price.

One of the purposes of bona fide acquisition system is to protect the security of transactions. Therefore, only by buying and selling, exchanging, contributing capital and paying off debts can the transferee apply bona fide acquisition. In the case that the third party obtains it for free, it loses the necessity of protecting its interests. At the same time, whether the third party obtains the property for compensation is also an important criterion to judge the goodwill of the third party. Therefore, the third party should not only obtain the right of transfer with compensation, but also obtain it at a reasonable price.

(5) Trademark transfer itself is effective.

Only an effective legal act can produce the expected legal consequences of the parties and thus be protected by law. According to the theory of bona fide acquisition, bona fide acquisition by a bona fide third party can only correct the defects in the source of rights, but not in the transaction behavior. [7] Where a transaction occurs due to fraud, coercion or collusion that damages the interests of a third party, the transferee still has the obligation to return the trademark right, and bona fide acquisition cannot be applied.

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