Question 2: The difference of trademark circulation system under the new and old trademark law system.
In judicial practice, when there is a dispute before the administrative examination and approval and announcement procedures of trademark transfer are completed, the transferee of trademark rights often takes the transfer agreement as the basis and emphasizes the importance of abiding by the agreement; On the contrary, the transferor of trademark rights emphasizes the importance of administrative examination and approval power based on the fact that the trademark transfer is not completed without approval, and then denies the effectiveness of the trademark transfer agreement.
Then, how to coordinate the application of contract legal system and trademark legal transfer rules in Chinese mainland has become an important task of judicial jurisdiction.
The author thinks that it is necessary to reinterpret the important role of "transfer agreement" in trademark circulation under the old and new trademark law systems in order to thoroughly clarify the relationship between the effectiveness of trademark transfer agreement and the trademark transfer examination and approval system; We should pay full attention to the coordinated application of contract law system and property law system.
Chinese mainland's trademark legislation system takes 200 1 12 1 as the boundary, and has greatly revised the establishment requirements of the legal relationship of trademark transfer. Previously, China's trademark transfer approval system was very simple, only requiring the transferee to handle and provide the transfer application form unilaterally, without any "transfer agreement".
The circulation system in the Detailed Rules for the Implementation of the Trademark Law promulgated by the State Council on March 1 2003 is an application for the transfer of a registered trademark. Every time a trademark is transferred, an application for the transfer of a registered trademark shall be submitted and the original registration certificate shall be returned. After being approved by the Trademark Office, the original certificate shall be endorsed, sent to the transferee and announced. Since then, in the two revisions of the rules formulated by the State Council, 1988 and 1993, the system of "returning" the original trademark registration certificate by the transferor and the system of "annotating" the original trademark registration certificate by the trademark office and sending it to the transferee for announcement have been retained. However, when 1995 revised the detailed rules for the third time, the system of "return" and "annotation" of the original certificate was abolished, and only the transferor and transferee were required to submit an Application for Transfer of Registered Trademarks to the Trademark Office. The application procedures for the transfer of a registered trademark shall be handled by the assignee. After being approved by the Trademark Office, the relevant certificate shall be issued to the transferee and announced.
200 1, 10 year 10 on October 27th, when the Trademark Law was amended, there was a major institutional change in the establishment of the legal relationship of trademark transfer, and the provision that "when transferring a registered trademark, the transferor and the transferee shall sign an assignment agreement and jointly file an application with the Trademark Office" was added. It can be seen that the transfer of a trademark requires both a transfer agreement and an application.
However, the Regulations on the Implementation of the Trademark Law promulgated by the State Council and implemented on September 5, 2002 did not pay enough attention to this major legislative change. It still copied the provisions of the old trademark law in the third revised edition of 1995, only stipulated that the trademark transfer should be handled by the assignee as before, and did not set up "both parties * *" according to the requirements of the new trademark law.
In the practice of trademark transfer approval, the State Trademark Office only attaches importance to the Provisions, but ignores the strict provisions of the Trademark Law itself, so that the Trademark Law is actually shelved by the lower law. It should be said that the above-mentioned serious omission in China's trademark administrative legislation is a major institutional defect.
It can be assumed that if Apple receives the trademark of iPad under the old trademark law system, Apple has the right to directly handle the administrative examination and approval and "transfer" procedures of the trademark; The problem is that Apple's transferee behavior takes place under the new trademark law system. Obviously, Apple and Proview must abide by the two rules of "agreement transfer" and "* * * same application".
Question 3: Is the validity of the trademark transfer agreement limited by the administrative act of trademark approval?
The question now is, if either the transferor or the transferee fails to fulfill the obligation to apply for transfer, how to confirm the legal effect of the transfer agreement? The author believes that this problem can be completely solved under the system of contract law and property law.
Trademark right is a kind of property right, similar to real estate. Its circulation system should be regulated by the "ownership" system and the security right system in the Property Law. The Property Law stipulates that the contract on the establishment, alteration, transfer and elimination of the real right of immovable property concluded between the parties shall take effect upon the establishment of the contract, unless otherwise stipulated by law or the contract; Failure to register the real right shall not affect the validity of the contract.
That is to say, if the transferor denies the effectiveness of the trademark transfer agreement itself on the grounds of "no transfer", it can only be established if the trademark legal system requires that the transfer agreement must be registered and approved before it can take effect. So, how is the trademark transfer system in Chinese mainland regulated? The only provision of the Trademark Law on trademark transfer system is Article 39 of the Law, that is, "Where a registered trademark is transferred, the assignor and the assignee shall sign an assignment agreement and apply to the Trademark Office. The transferee shall guarantee the quality of the goods using the registered trademark. After the transfer of a registered trademark is approved, it shall be announced. The transferee shall enjoy the exclusive right to use the trademark from the date of announcement ".
Obviously, the Trademark Law does not link the effectiveness of the transfer agreement with the registration examination and approval system. That is, whether the trademark transfer is "transfer" does not affect the legal effect of the transfer agreement itself. If the trademark transfer has not gone through the administrative examination and approval procedures, it is only that the transferee has not obtained the trademark right for the time being, but the validity and enforceability of the trademark transfer agreement cannot be denied in reverse. In fact, the interpretation of Contract Law 1 clearly stipulates that laws and administrative regulations stipulate that a contract shall go through the registration procedures, but it does not stipulate that it will take effect after registration. If the parties fail to go through the registration formalities, the validity of the contract will not be affected, and the ownership and other property rights of the subject matter of the contract cannot be transferred. The legal relationship of trademark transfer is a typical representative of this system.
The author believes that in the paid disposal of trademarks, the transferee has the right to ask the other party to continue to perform the transfer contract and apply directly to the trademark authority for transfer according to such judgments. Therefore, in the case of "non-transfer" and the trademark transferor holds the trademark registration certificate, the judicial organ has the right to reconfirm the trademark ownership by confirming the judgment, which is not limited by the right state recorded in the trademark registration certificate. At this time, the judicial confirmation judgment of the court must be more effective than the trademark registration certificate, which has the legal effect of directly denying and depriving the registrant of the trademark right.
In addition, the State Trademark Office has the obligation to assist in the execution of the court's judicial confirmation judgment, and may not refuse to assist in the execution on the grounds that the trademark ownership confirmation right is "exclusive" by the trademark authorities. In fact, the trademark authorities only have the normal trademark administrative examination and approval power, and have no right to confirm the disputes over trademark civil and commercial rights.
Excerpted from Shi Anning's Questioning the Rules Caused by the Trademark Case of "iPad"