Article 5 of China's currently applicable Trademark Law (second amendment in 21) stipulates:? Two or more natural persons, legal persons or other organizations may apply to the Trademark Office for the registration of the same trademark, and enjoy and exercise the trademark right. ? It can be seen that China has laws to follow for trademark rights, especially between natural persons. However, after the relationship between * * * is determined, the specific exercise rules are lacking, 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 deeply discuss the rules of exercising the right of * * * between trademark owners.
article 5 of China's currently applicable trademark law (second amendment in 21) stipulates:? Two or more natural persons, legal persons or other organizations may apply to the Trademark Office for the registration of the same trademark, and enjoy and exercise the trademark right. ? It can be seen that China has laws to follow for trademark rights, especially between natural persons. However, after the relationship between * * * is determined, the specific exercise rules are lacking, 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 deeply discuss the rules of exercising the right of * * * between trademark owners.
types and characteristics of * * * of trademark rights
At present, the relevant laws do not specify the types of * * * of trademark rights. Generally speaking, it is believed that * * * of trademark rights can be divided into * * * and * * * with * * *. If the agreement is unclear, it is presumed to be * * * with * * *, which is based on Article 88 of the Supreme People's Court's Opinions on Implementing Several Issues. For * * * with 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 concerned have the trademark right in installments or whether there is an agreement between * * * and * * * or the agreement is unclear, so it is presumed that * * * and * * * have it.
the trademark right * * * has some important characteristics, such as the majority of the right subject, the legality of the determination of the right and the particularity of the exercise of the right.
first, the majority of the right subject. * * * The subject with trademark right is two or more natural persons, legal persons or other organizations, and they have the exclusive right to use the same trademark based on * * * same registration, * * * same transferee or other legal reasons. This feature is relative to non-* * existence, and it cannot be distinguished from other * * * relations.
second, the legality of the determination of rights. * * * Trademark right is the right of several subjects to the same trademark, which needs to be registered with legal institutions, 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 they enjoy 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 will lead to the particularity of the exercise of rights.
Trademark right and the carrier of trademark right
Whether trademark right * * * is owned by * * * or by shares * * * is not clearly defined by law, but it is generally considered that it can be divided into * * * with * * * and by shares * * *. Some people think that it is necessary to be based on the divisibility of trademarks owned by * * *. What is divisibility? That is, a trademark should be registered on several different categories of goods, which makes segmentation possible and has separability. If a trademark is only registered on one or a class of goods, it is not divisible. Even if someone agrees to have it in pieces, its agreement 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 the trademark, and the specific goods are only the carrier of this right. With a trademark? Rainbow? For example, * * * someone enjoys a trademark? Rainbow? The exclusive right to use, and? Rainbow? The registration of a trademark has nothing to do with how many commodities. According to this view,? Rainbow? If the registered categories of trademarks are clothing and electrical appliances, then some trademarks of this * * * are separable, and the subject of rights can be divided into one subject with clothing trademarks and another subject with electrical appliances trademarks. However, if there is only one category 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 is registered in two categories of goods, but what if? Rainbow? The main category of trademarks is clothing, and the proportion of rights holders is 5% respectively, so it is obviously hard to say that it is fair and reasonable for someone who only enjoys electrical appliances. Therefore, the * * * of a trademark should be the * * * of the trademark right, which has nothing to do with the number of carriers of its rights. No matter how many goods are registered in a trademark, it does not affect the identification of its * * * type.
Rules for the exercise of trademark rights * * *
After clarifying the types of trademark rights that can be * * * and * * *, the most urgent problem for practical application is to construct rules for the exercise of trademark rights.
trademark right * * * the rule that someone directly uses a trademark? Each * * * has unlimited direct use. 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 use right, but there are also licensing right, transfer right and prohibition right. Generally speaking, the main way for the subject of trademark rights to exercise their rights is to use the trademark directly.
*** Are there rules that all parties permit third parties to use? * * * There is unanimous agreement. Different from the rule that the property right * * * is disposed of by someone * * *, the trademark right * * * is licensed by a third party or the pledge must be agreed by the * * * owner. Because the permission of either party will have a great impact on other parties. Trademark right * * * can be divided into * * * and * * * with * * *. According to a share of * * * each * * has the right to freely license a third party to use it or set a pledge within its own share, but it shall not harm the interests of other * * * owners.
*** Is there a subject of trademark rights protection? Everyone has the right to defend their rights. Trademark right is different from other types of rights in that 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 goods 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, any party of * * *, whether it is owned by * * * or owned by * * * with * * * * * *, can make requests for the trademark owner of * * * to stop the infringement, remove obstacles, preserve property and compensate for losses, without the unanimous consent of all * * *.
trademark rights * * * share transfer rules of the owner? All * * * people agree. Every * * * owner who owns the trademark right by shares has the right to transfer his share, but whether the transfer needs the unanimous consent of other * * * owners is not expressly stipulated in China's trademark law. The * * * owner's share of the trademark right cannot be transferred at will. For example, Japan applies the provisions of Article 73 of the Japanese Patent Law mutatis mutandis according to Article 35 of the Japanese Trademark Law. Sometimes, the owner of the trademark right cannot transfer his share without the consent of other owners. According to a copy of * * * is not transferable, * * * with * * * some * * * people can't arbitrarily transfer their rights. However, on the premise that the aforesaid transfer is agreed unanimously, other * * * owners have priority under the same conditions.
does anyone in each * * * set rules for the burden of rights on trademarks? Need unanimous consent. In recent years, there are more and more ways of financing intellectual property as collateral, which is a good thing to revitalize intellectual property assets. However, if a trademark owned by * * is used as collateral to set up a rights burden, the possible result is that when the pledger can't repay the corresponding funds, the trademark is likely to be auctioned or sold to pay off debts, which will actually lead to the transfer of the trademark. Therefore, it can be handled with reference to the above-mentioned situation of share transfer.