What procedures should I pay attention to when buying and selling trademarks?
Be familiar with the relevant policies, laws and regulations when conducting business activities, so as to avoid making mistakes because you don't know the laws and regulations, and to avoid losses to the company and yourself because you ignore details or preparations. It is possible to make up for the economic losses. If there is a loss in brand effect and word of mouth, it will not be easy to make up for it. Details are as follows:
1. Is the trademark registered?
If the traded trademark is not registered at all, or it is not renewed in time when it expires, or it is revoked or invalid according to law, there is no legal right to exclusive use of the trademark, and anyone has the opportunity to use the trademark, or even be registered by others, thus hindering his rights such as ownership or use right obtained from trademark trading. Of course, assuming that unregistered or unregistered trademarks are the unique names and appearances (packaging and decoration) of well-known trademarks or well-known commodities, you can still enjoy the protection of the Trademark Law or the Anti-Unfair Competition Law. But it is not easy to claim the unique name or appearance of a well-known trademark or commodity.
2. Is the trademark still being registered?
This is a continuation of the previous question. In some cases, although the trademark has not been approved for registration, it may have formally applied for registration. However, due to legal obstacles such as lack of distinctiveness and infringement of prior rights, this trademark may not be approved for registration.
3. Does the other party have the right to dispose of the trademark right?
After finding out the authenticity of trademark registration, you should also know whether the person you are dealing with has the right to dispose of this registered trademark, whether he is the right holder (registrant or owner) of this registered trademark, or the agent specially authorized by the right holder, or the licensee who is allowed to sub-license. If the trademark is owned by * * *, is it approved by * *? You can check the trademark registration certificate, trademark transfer contract, transaction authorization, or check the trademark announcement and China Trademark Network to find out who is the real owner of the traded trademark and who has the right to transfer, license or pledge the trademark at present.
4. Where is the trademark registration valid?
The effectiveness of trademark rights is regional. Trademarks registered in China are only valid in China, and trademarks registered in France are only valid in France. If you want to obtain the ownership or use right of a trademark in China, you must confirm that the trademark has been registered in China. If you want to use this trademark to manufacture goods in China and export them to Europe at the same time, you need to register this trademark not only in China, but also in relevant European countries, otherwise you may encounter trademark infringement when exporting.
5. When will the trademark registration expire?
Trademark registration has a time limit, and the validity period of China's trademark law is 10 year. However, the registration can be renewed after the expiration. The key point is that if the trademark registration is about to expire, the relevant parties should urge the trademark registrant to complete the renewal procedures. Especially before the transfer (the subsequent exhibition of the transfer is the transferee's own business), or during the licensing and pledge period, it is necessary to ensure the renewal of the registration of the trademark registrant so as not to damage its own commercial rights and interests.
6. Is the traded trademark consistent with the registered trademark?
Although the other party's trademark has been approved for registration, is the trademark used for trading consistent with the trademark approved for registration? According to Article 56 of the Trademark Law, "the exclusive right to use a registered trademark is limited to the registered trademark and the goods approved for use." Trademarks that are inconsistent with registered trademarks (especially those with great differences) shall not enjoy the exclusive right to use trademarks. If you buy and use a registered trademark carelessly, it may also constitute an illegal act of changing or counterfeiting a registered trademark by yourself.
7. What are the goods or services specified by the trademark?
The exclusive right to use a registered trademark is limited to the goods or services approved for use. It is necessary to find out whether the right holder has exceeded the approved scope of use, whether he has issued a license for use, and whether he has engaged in transfer, because if others register the same or similar trademarks on those goods or services that the right holder has exceeded the approved scope of use, this may lead to trademark infringement and other problems. In addition, it is also very important to check whether the products or business scope you need to use are consistent with the goods or services specified in the other party's trademark registration, and to check the consistency between the other party's trademark registration and your own business.
8. Who owns the copyright of the trademark?
At present, the components of a trademark are very rich, including words, graphics, letters, numbers, three-dimensional signs, TINT and sounds, and the combination of the above elements. The graphics, three-dimensional signs, sounds and words (such as advertising language) may meet the original requirements of the work and enjoy the protection of copyright.
9. Does the trademark registration meet the authorization conditions?
Trademark registration needs to meet a series of authorization conditions such as distinctiveness, non-functionality, non-prohibition of signs, and non-infringement of others' rights. Therefore, it is necessary to evaluate the traded trademarks in order to prevent them from being declared invalid in the future because of violating legal provisions or infringing others' rights. For example, the weak distinctiveness of trademarks has a great influence on trademark protection, and the weak distinctiveness of trademarks is easy to be used reasonably by others (including competitors) and difficult to stop. It can be seen that the distinctiveness of a trademark has a great influence on the scope of protection or special use of a trademark.
10. Has the trademark become a common name?
According to the second paragraph of Article 49 of the new Trademark Law of 20 13, any unit or individual may apply to the Trademark Office for cancellation of a registered trademark if it becomes the common name of the goods approved for use. In fact, escalators, thermos bottles, aspirin and nylon were originally registered trademarks of famous enterprises, and later they all became common names of related products. In China, trademarks such as USB flash drive and snowflake (flour) have been recognized as generic names by the Trademark Review and Adjudication Board or the people's court, and their exclusive rights have been lost.
1 1. Do you have the same or similar trademarks?
If the ownership of the other party's trademark is obtained through trademark transfer, enterprise merger, etc. In order to avoid the market confusion caused by the existence of related commercial trademarks in the future, or even violate the mandatory provisions of the law, it is necessary to examine whether the other party has commercial trademarks similar to the trading trademarks, and further consider whether it is necessary to transfer these related commercial trademarks such as defensive trade mark and United Trademark together.
12. Do you tolerate cross-class registration of the same or similar trademarks?
Trademark law does not require that trademarks registered on different or similar goods that are the same as or similar to trading trademarks must be transferred together. However, from the perspective of commercial prudence, it is still necessary to evaluate which types of identical or similar trademarks should be acquired together to avoid future commercial confusion. For example, the right holder registered trademarks on the car 12 and 28 toys respectively. It's best to buy trademarks on cars and toys together. Don't belong to two companies after the acquisition, otherwise there will be conflicts between the toy car and your real car in the future.
13. Do you have the same product name or domain name as the trademark?
In order to effectively protect trademarks, some enterprises not only registered defensive trademarks and joint trademarks, but also kept trademarks consistent with trade names and domain names. Although you bought a trademark, people still keep the same font size or domain name as the trademark. You need to consider whether this is an acceptable result for you.
14. Is there any pledge or other restrictions on the trademark?
Suppose a registered trademark is pledged and then transferred to you, obviously this is not a good thing. Because once the debts secured by the trademark cannot be paid off, the pledgee (creditor) has the right to discount the exclusive right to use the trademark, or give priority to the payment of the exclusive right to use the trademark by auction or sale. As a result, the trademark you spend money on will eventually fly to other people's arms.
15. Is the trademark subject to licensing?
In addition to the pledge of trademark rights, there are also restrictions on trademarks and existing license agreements, especially exclusive licenses. According to the characteristics of exclusive license, except the licensee, the trademark owner may not issue a license to a third party or use the trademark himself. If you already have an exclusive license, you are not allowed to obtain a second trademark license from the obligee, otherwise you will get an unstable license, and the licensee who enjoys the exclusive license will soon interfere. If the transferee's trademark has been licensed to the outside world, according to the similar rule of "sale does not break the lease", the transferee is still bound by the prior license, and there may even be cases where the transferee enjoys the ownership but cannot use it (such as the third party enjoys the exclusive license).
16. Is there any dispute about the trademark?
Is there any dispute over ownership, cancellation of registration or invalidity of the traded trademark? If these disputes exist, the other party may completely lose the ownership of the trading trademark in the future, and even the registration of the trading trademark will cease to exist because of revocation or invalidity. It is worth noting that in some trademark contract dispute cases, if there is no clear agreement, even if the trademark registrant does not disclose the facts of the trademark dispute, it does not need to bear the liability for breach of contract.