Understanding the legal nature of the * * * deposit agreement and its role in the trademark registration procedure is the basis for concluding the * * * deposit agreement. * * * The deposit agreement is a contract concluded by the parties to determine the corresponding rights and obligations, which is regulated by the contract law. Its basic function has two aspects: one is to clarify the rights and obligations of both parties on the existence of the trademark * * * *; One party shall bear legal responsibility for breach of contract. The second is to prove to the trademark authority or the people's court that the owner of the cited trademark agrees not to object to the trademark application; And both sides believe that through the implementation of the agreement, consumer groups can be clearly distinguished to prevent misleading consumers. * * * The specific terms of the deposit agreement shall be based on the foregoing. Logically speaking, consumers who are not more concerned about their goods or services than trademark owners will be confused by applying for trademark registration. In other words, citing the facts recognized by the trademark owner should be more in line with the facts than the subjective thinking of the examiner or judge. If the examiner or judge does not accept the facts claimed by the trademark owner, he must produce more convincing evidence or factual basis.

(2) Basic terms and functions of the deposit agreement

1, statement of fact or in view of the clause.

This kind of clause is often used in the preface of international contracts; But it is more practical in * * * storage protocol. Because it can clearly show the background of the parties who signed the deposit agreement. If the relationship between the two parties is a parent-subsidiary company or a joint venture company, such facts should be stated so that the competent authority or the court can understand the economic basis of the agreement between the two parties, and then examine the possibility that the existence of trademarks may lead to confusion among consumers. If the parties enter into a depositary agreement for historical reasons, they should first prove the fact that the two parties to the dispute reached a settlement on the previous dispute under the agreed conditions. The competent authority or the court should respect the decision of the parties as much as possible, which is conducive to stabilizing the economic relations between the parties.

2. "No objection" clause

Since the primary purpose of the parties to conclude the * * * deposit agreement is to help the trademark registration application be approved, it is necessary to clearly stipulate that the trademark owner has the obligation not to raise objections to the trademark registration application. However, since the contract is about the relationship of "consideration", it should be clearly quoted that the premise of trademark holder's performance of "no objection" obligation is that trademark applicant strictly abides by the agreement. If the trademark applicant fails to fulfill the obligations of the agreement, the cited trademark holder can choose the following treatment methods:

(1) This kind of clause directly stipulates that the * * * bond agreement will be automatically terminated if the trademark applicant fails to perform the agreed obligations, or the performance of the obligations does not conform to the agreement; Furthermore, the deposit agreement has become a "contract with termination conditions" in contract law. Of course, whether the * * * deposit agreement continues to be valid will not have a substantial impact on the competent authorities or courts in hearing cases related to trademark registration applications; However, the owner of the cited trademark can at least object to the trademark application on this ground and will not be liable for breach of contract. In addition, the cited trademark owner can also prove that the trademark applicant's use of the trademark in violation of the agreement is an important factor that may lead to confusion among consumers; Wait a minute.

(2) Or stipulate that the trademark applicant breaches the contract and the trademark holder has the right to terminate the contract. This is the "right to terminate the agreement" in contract law. Once the factual conditions are established, the trademark owner can decide whether to unilaterally terminate the contract. From the perspective of contract law, the owner of the cited trademark can send a notice of termination to the trademark applicant, and the deposit agreement will be terminated when the notice reaches the trademark applicant. If the latter has any objection to the termination of the agreement, it may request confirmation from the people's court or the adjudication institution. No matter how the dispute settlement institution determines, the owner of the cited trademark can object to the trademark application accordingly. Of course, if the dispute adjudication institution does not support citing the trademark owner's "accusation of breach of contract", whether it should bear the liability for breach of contract by objecting to the trademark application depends on the specific circumstances of the dispute.

(3) If the two parties fail to reach an agreement on the above terms, when the trademark applicant breaches the contract, the trademark obligee can also consider claiming the "right of defense" stipulated in the contract law, and then raise an objection to the trademark application, so as to defend the trademark applicant's "accusation of breach of contract". From the perspective of the competent authority or the court, although it has no right to hear and determine whether the "performance right of defense" advocated by the cited trademark owner is established, it can be concluded that the cited trademark owner raised an objection to the trademark application after concluding the * * * deposit agreement; It is not the focus of this procedure to clarify whether such behavior violates the deposit agreement; This Committee or our institute has the power and responsibility to independently examine whether the applied trademark can be registered.

3. Determine the terms of applying for a trademark

Cite its trademark, and clearly define the applied trademark, so as to make it obviously different as far as possible (such as the following two trademarks);

It is also clearly stipulated that a trademark applicant shall not unilaterally change the use form and scope of the applied trademark without the consent of the owner of the cited trademark.

4. Apply for restrictions on trademark use

Judging from the status of commercial transactions, it is generally the trademark applicant who requests the trademark owner to conclude a * * * deposit agreement; Therefore, the latter should be in a more favorable negotiating position. Therefore, strictly limiting the way and scope of trademark application is not only conducive to citing the commercial interests of trademark owners, but also reduces the possibility of confusion among consumers. For example, if the same commodity category is involved, the owner of the cited trademark may require the trademark applicant to use the trademark only on several commodities in that category. If the latter violates the agreement, it may not necessarily constitute trademark infringement, but it should bear the liability for breach of contract. Because the legal scope of use of a trademark is different from that agreed by the parties; The resulting legal responsibilities are also different. In addition, the parties may also make an agreement on the packaging, decoration, marking, use area, sales channels and advertising of the applied trademark. What is related to such an agreement is more related to the liability for breach of contract.

5, allow the use of terms.

The main content of this clause is that both parties agree that if the competent authority does not allow the application for trademark registration based on the deposit agreement, the trademark applicant has the right to use the applied trademark in the agreed area. Once the trademark applicant uses it to make his trademark recognized by the corresponding consumer groups, he still has the right to apply for registration of his trademark again based on the deposit agreement. The agreement is of special commercial significance to the trademark applicant, that is, to use the applied trademark with the consent of the owner of the cited trademark, and possibly make its trademark registrable through use. Of course, whether the cited trademark owner agrees to such an agreement requires both parties to negotiate and how to agree on the corresponding conditions.

6. General terms, such as:

(1) Term of the agreement: It shall be decided according to the specific considerations of both parties. For example, from the perspective of citing the trademark owner, we can consider such wording as "If the application for trademark registration is not approved, this agreement will be automatically dissolved from the effective date of the administrative decision or court judgment". If the competent authority accepts this agreement and approves the application for trademark registration, this agreement will remain valid until the date when the applied trademark becomes invalid or invalid. The main consideration of this agreement is that since the deposit agreement involves two different transactions: applying for trademark registration and using it, if the former occurs, the deposit agreement is unnecessary. However, if the applied trademark is approved for registration, the validity period of the registration agreement is the same as that of the trademark, and at least the trademark applicant is bound by the contract (such as the agreement on the scope of use); And bear the legal responsibility for breach of contract, in order to strengthen the protection of the right holder of the cited trademark.

From the perspective of the trademark applicant, it can be agreed that "this agreement shall be valid until the date when the cited trademark becomes invalid or invalid." In this way, even if the applied trademark is not approved for registration, the trademark applicant can use the applied trademark first according to the "license clause" in the preceding paragraph. Try to apply for registration after using it to get a higher meaning. In addition, after the cited trademark is invalid or invalid, the trademark applicant can no longer be bound by the contract about the mode and scope of use.

(2) Liability for breach of contract: In view of the fact that the * * * Deposit Agreement is more concerned with the protection of the owner of the cited trademark, it is necessary to clarify the liability of the trademark applicant for breach of contract, including the unilateral termination right of the owner of the cited trademark, the liability of the trademark applicant to pay liquidated damages, and whether the trademark applicant should stop using the trademark; And so on.

It is necessary to consider some specific * * * deposit agreements to strengthen the protection of trademark applicants, such as the * * * deposit agreement reached between real trademark users and trademark squatters. If the default cost of a registered trademark is lower than the "profit" it may get through default, the registered trademark owner may unilaterally tear up the agreement and resort to the procedures of objection and invalidation again. This kind of agreement should pay special attention to preventive measures, such as setting high penalty clauses. However, in the deposit agreement, the owner of the cited trademark is often in a strong negotiating position. In this way, it is generally only when the deposit consideration of * * * is relatively rich that it is possible to reach such a penalty clause.

(3) Applicable laws and regulations: It is particularly important when one party is an overseas party. The applicable law of contract is applicable to the interpretation of contract terms and the judgment of the parties to perform the contract. Since XXX deposited the agreement for the purpose of trademark registration in China, it is appropriate to stipulate that the laws of China should be applied.

(4) Dispute settlement clause: Because it involves the legal relationship of the contract and one party may live abroad, it is necessary to choose arbitration. This is not only because arbitrators are mostly experts in various fields (including intellectual property rights), but also because arbitral awards can be recognized and enforced in more than 60 countries in the world. China International Economic and Trade Arbitration Commission and Beijing Arbitration Commission are preferred.