According to the Property Law, the transferable exclusive right to use a registered trademark can be pledged. With reference to the provisions of the pledge of movable property, in order to guarantee the performance of debts, the debtor or a third party pledges its exclusive right to use a registered trademark to the creditor, and the creditor (pledgee) has the right to realize the pledge of a registered trademark, that is, the proceeds from the auction and sale of the exclusive right to use a registered trademark are given priority. The debtor or the third party is the pledger, the creditor is the pledgee, and the exclusive right to use the registered trademark that provides pledge is the pledged property.

II. Overview of bona fide acquisition system

1. The concept of bona fide acquisition system

Bona fide acquisition refers to: the property owner transfers the ownership of the subject matter to a third party or sets other real rights for the third party, even if the owner of the subject matter has no right to dispose of it, the bona fide acquisition can still obtain the ownership of the subject matter or other real rights.

2. Constitutive elements of bona fide acquisition

According to the provisions of the Property Law, a third party can usually acquire the property right in good faith when it meets the following three points: first, the transferee is in good faith when accepting the subject matter (the transferee fully fulfills the reasonable duty of care); Second, transfer at a reasonable price; Third, the transferred real estate or movable property shall be publicized according to the law, and those that need to be registered have been registered and those that need to be delivered have been delivered.

3. Legal consequences of bona fide acquisition

If the bona fide acquisition obtains the ownership of the subject matter in accordance with the provisions mentioned above, the original owner has the right to claim compensation from the person without the right to dispose of it, and the person without the right to dispose of it shall bear the corresponding liability for compensation.

iii. institutional framework for bona fide acquisition of the pledge right of the exclusive right to use a registered trademark

Based on the above, the bona fide acquisition of the pledge right of a registered trademark is presumed to be applicable to the bona fide acquisition system of real right, and the pledgee is subjectively in good faith when signing a pledge contract with the pledgor, and legally obtains the pledge right of the exclusive right to use a registered trademark after registering the trademark pledge according to the Property Law, Trademark Law and other relevant provisions. If the debtor fails to perform the pledge guarantee, the pledgee may bring a lawsuit to the court, claim the right of pledge, and give priority to the payment obtained by auction or sale. In particular, the bona fide acquisition of the pledge right of a registered trademark does not require the pledgee to pay a reasonable consideration, but only requires that the pledgor has no right to dispose of it and the pledgee does not know it in good faith, which is different from the bona fide acquisition in the ordinary sense.

IV. Case statement

1. Brief introduction of the case

In p>211, the natural person Hu Mou signed a trademark holding agreement with Beijing Laifu Company, stipulating that Laifu Company applied for MM trademark on behalf of Hu Mou in tofu and other commodity projects, and agreed that after the trademark registration was successful, the exclusive right to use the registered trademark was Hu Mou, and Laifu Company formally held it. In 212, the Trademark Office approved the registration of MM trademarkNo. * * * 121, and delivered the trademark registration certificate to the applicant Beijing Laifu Company. After the good management of the natural person Hu, the post-MM tofu has formed a high reputation in the country. In 216, Laifu Company owed 3 million yuan to Shanghai Changshou Company due to business dealings. Laifu Company decided to pledge MM trademark to Shanghai Changshou Company by the shareholders' meeting, with the agreed repayment period of January 21, 217, and entrusted Zhizitong IPTOCAP to handle the trademark pledge registration on its behalf. In June 216, the Trademark Office accepted the pledge registration and issued the pledge registration certificate of MM trademark. Later, the husband company failed to repay its debts due to poor management. On January 3, 217, Shanghai Changshou Company filed a lawsuit with the People's Court of Xicheng District, Beijing, requesting the auction of MM trademark and giving priority to the payment after the auction. As a third person, the natural person Hu Mou appeared in court, claiming to be the actual owner of the MM trademark, and showing the court that he signed a trademark holding agreement with Beijing Laifu Company in 211, requesting the court to rule that the MM trademark pledge contract signed by Laifu Company and Shanghai Changshou Company was invalid.

After trial, the court held that the owner of MM trademark registration certificate was Laifu Company, and Shanghai Changshou Company fulfilled its reasonable duty of care, and entered into a trademark pledge contract with Laifu Company based on the real creditor-debtor relationship, and there was no subjective malice to intentionally harm Hu's interests. And the pledge has been registered with the Trademark Office, and the principal debt secured by the pledge has expired. Shanghai Changshou Company's pledge of MM trademark should be protected.

case handling result: the auction price of MM trademark by Shanghai Changshou Company (4.5 million yuan) was paid first, and the creditor-debtor relationship between Shanghai Changshou Company and Beijing Laifu Company was eliminated. The natural person Hu lost the actual control of MM trademark, and then Hu filed a breach of contract lawsuit against Beijing Laifu Company.

2. Case comments

In the case, Shanghai Changshou Company, the trademark pledgee, safeguarded its civil rights through the system of bona fide acquisition of trademark pledge right. It entered into a pledge contract with the pledger Beijing Laifu Company in good faith, and legally obtained the pledge of the exclusive right to use a registered trademark after registering the trademark pledge in accordance with relevant laws and regulations. Then, the debtor Beijing Laifu Company failed to fulfill its debts due, and the pledgee Shanghai Changshou Company gave priority to the compensation for the auction price by suing the court. Hu, the actual controller of MM trademark, suffered the most, because the trademark owner stated in the trademark certificate is Beijing Laifu Company, which is held on its behalf, so it can't compete with Shanghai Changshou Company, a bona fide third party.

V. Suggestions on practical operation

1. Suggestions for pledgee (creditor)

First, when concluding a pledge contract with the trademark pledgor, the pledgee must fully understand the validity status of the pledgor trademark (expiration date, right defects, etc.) and let the pledgor issue a non-controversial statement on trademark ownership; The market operation of the products or services to which the trademark is applied (e.g., whether the price of the pledged trademark can be fully paid off by exercising the pledge right, auction or selling).

second, both parties to the pledge must go through the pledge registration at the Trademark Office before the registration of the registered trademark pledge can be established and the legitimate rights of the pledgee can be guaranteed.

In addition, it is suggested that the pledgee ask the pledgor or debtor to provide other forms of guarantee to ensure that the due debts are fully paid off.

2. Suggestions to the actual trademark controller

It is suggested to apply for a trademark in your own name, and the trademark right can be fully guaranteed at this time. If you entrust others to hold trademarks on your behalf, it is suggested to sign a trademark holding agreement, and clearly stipulate the rights and obligations of both parties, indicating the legal consequences of unauthorized disposal, so as to protect their rights and facilitate claims.

VI. Summary

The exclusive right to use a registered trademark needs continuous operation and maintenance to accumulate and enhance its comprehensive value, which condenses the hard work of trademark users and trademark owners. From the application and use of trademarks, to the use of trademarks to provide pledge guarantees and exercise trademark pledge rights, all these need to be carried out within the framework of legal provisions. Only by operating in strict accordance with relevant laws and regulations can we protect our legitimate trademark rights.