1. Trademark rights and trademark exclusive rights.
Trademark right refers to the trademark owner’s right to possess, use, benefit from and dispose of the trademark he uses in accordance with the law. It is an exclusive right enjoyed by the trademark owner over his trademark. Trademark right is an important right in the field of intellectual property. It originated in modern Western society. It is a new right that transformed trademarks from guild privileges to civil rights. It belongs to the same industry as patent rights, trade name rights, appellations of origin and other rights. property.
Trademarks have a long history in our country, but trademark rights in the true modern sense did not appear in our society before modern times. Its transformation from a guild privilege to a civil right occurred in our country. of the late Qing Dynasty. Moreover, "trademark right" as a legal term first appeared in our country in the "Sino-British Renewal of Commerce and Shipping Treaty" signed by the Qing government and the United Kingdom on September 5, 1902. Article 7 of the treaty stipulates: "Because the British government enjoys trademark rights, the Chinese government prohibits people from imitating them. It also specifically stipulates that all British people shall receive the same benefits within the territory of the Chinese government." Later, the Ministry of Agriculture and Commerce of the Beiyang Government revised the "Trademarks compiled by the Ministry of Agriculture and Commerce" In the Draft Law, the expression “trademark rights” also appears again.
However, in the trademark laws and regulations after the founding of the People's Republic of China, the status of trademark rights has been replaced by the "exclusive right to trademark", and its status as a civil right has not been reflected in trademark legislation.
The exclusive right to use a trademark refers to the exclusive right to use a trademark that the trademark owner enjoys in accordance with the law. At the same time, since my country's current Trademark Law implements the principle of trademark registration, trademark rights are mainly obtained through registration, so the trademark mentioned here mainly refers to "registered trademark", and unregistered trademarks do not enjoy exclusive rights to trademarks.
In the history of the development of trademarks in my country, trademark exclusive rights and trademark rights have almost the same long history. The emergence of trademark exclusive rights as a trademark right is closely related to the emergence of trademark rights in the modern sense of our country. connect. As mentioned earlier, the earliest appearance of trademark rights in our country was in the "Sino-British Renewal of Commerce and Shipping Treaty" signed by the Qing government and the British powers in 1902, and the emergence of exclusive trademark rights was the result of the Qing government at that time. Under the pressure of external pressure, in order to realize the trademark protection provisions including the aforementioned treaties, the first written trademark regulations - "Trial Regulations for Trademark Registration" were formulated.
The formulation of this regulation was drafted by the British General Hurd, the General Taxation Department who controlled China's customs at that time, and was implemented by the customs controlled by foreigners. It establishes the principle of registration protection and the first-to-file principle that trademark applications are only filed with the Ministry of Commerce without substantive examination. It also stipulates that major powers enjoy consular jurisdiction in the field of trademarks in my country. Moreover, in the more than 20 years since this "customs registration" registration system was implemented, there have been more than 25,900 trademarks registered with the customs, and the vast majority are foreign trademarks (3). Therefore, in the process of the "Trial Regulations for Trademark Registration" formulated by the Qing government, "trademark rights" were abandoned and "trademark exclusive rights" were adopted. To a certain extent, this was due to the emphasis on the importance of protecting the trademark privileges of the great powers, rather than the real reason for trademark Protective intent as a civil right. Although the expression "trademark exclusive right" was also used in subsequent trademark regulations, the connotation and denotation of the two have undergone substantial changes.
2. The connection and difference between trademark rights and trademark exclusive rights.
(1) The concept of "trademark exclusive rights" used in my country's current trademark legislation reflects the most basic core meaning and attributes of trademark rights, but it does not cover all of its rights.
Traditional civil law theory believes that ownership is exclusive and is a property right, a self-property right, a right to the world, and a right to dominate. According to Article 71 of my country’s General Principles of Civil Law, ownership includes four powers: possession, use, income, and disposal, and each of these powers or multiple powers can be separated from ownership.
The so-called trademark right refers to the legal (statutory) rights that the owner of a registered trademark has over his registered trademark. Therefore, it is also a kind of ownership with special attributes. It is granted to the trademark owner by the competent authorities of the state in accordance with the procedures prescribed by law. an exclusive legal right. It is a collective concept, and its rights include trademark ownership and associated trademark exclusive rights, trademark prohibition rights, trademark renewal rights, trademark transfer rights, trademark licensing rights, and trademark litigation rights. Among these rights, the exclusive right to trademark occupies a particularly important position and is the basic core right. Other rights are derived from the exclusive right to use. The concept of "trademark exclusive rights" currently used in our country reflects its basic core meaning, but it fails to cover its entire content. As a special kind of ownership, the rights obtained by its owner are far more than "exclusive use". For example, when the right holder sets a pledge for a trademark right, the rights of the trademark owner include "the right to transfer" and "the right to license use". ", "right of renewal", "right of prohibition" and "right of litigation", etc., not just "exclusive right". With the in-depth development of my country's socialist market economy, trademark rights may also produce more rights content.
(2) The current concept of "trademark exclusive rights" used in my country's trademark legislation legally limits the scope of its value as intellectual property, such as inheritance, pledge, transfer and other activities. It is also not conducive to further enriching its content in the future.
As a kind of intellectual property that can bring wealth, trademark rights are fundamentally the same as creditor's rights and property rights, and belong to the category of property rights. They can be obtained originally, or can be acquired through inheritance, transfer, etc. It is obtained from receiving, thereby reflecting its use value and exchange value as property rights. According to the general principles of inheritance law, all legal personal property left behind when a citizen dies falls within the category of property inheritance. Property inheritance law applies not only to the inheritance of tangible property, but also to the inheritance of intangible property. The trademark rights enjoyed by citizens shall also be subject to property inheritance after the death of the citizen. my country's "Inheritance Law" promulgated in 1985 only mentions that property rights in copyrights and patents can be inherited as inheritance, but does not mention trademark rights. This may be mainly related to the fact that the exclusive right to register a trademark in my country at that time could not be obtained by natural persons (citizens). However, there is no clear provision on the inheritance of trademark rights in subsequent legislative formulations. However, we can combine the provisions in Article 4 of the Trademark Law revised in 2001, which stipulates that the exclusive right to trademark can be obtained by natural persons upon application, and Article 26 of the Implementing Regulations of the Trademark Law promulgated in 2002. Regulations on "If the exclusive right to a registered trademark is transferred for reasons other than transfer, the party accepting the transfer of the exclusive right to the registered trademark shall go to the Trademark Office to handle the transfer procedures of the exclusive right to the registered trademark with the relevant supporting documents or legal documents" and Article 47, Paragraph 1: "If the trademark registrant dies or dies, and one year has expired from the date of death or termination, and the registered trademark has not been transferred, any person may apply to the Trademark Office to cancel the registered trademark." The regulations indirectly infer that the current legislative provisions actually recognize the inheritance of the exclusive right to a registered trademark. In other words, if the trademark registrant as a natural person dies, the legal right holder should handle the transfer procedures of the registered trademark within the statutory period. , the exclusive right of the registered trademark will be transferred to the new right holder, and the new right holder will inherit all the exclusive rights of the registered trademark during the lifetime of the trademark registrant. However, if the trademark right is only an "exclusive right", it reflects more of its personal dependence. It will cease to exist with the death of the right holder, and it will be different from "transfer due to other reasons other than transfer." 's inheritance activities are suspected of being self-contradictory.
Furthermore, according to my country's "Security Law" promulgated in 1995 and subsequent relevant judicial interpretations, pledge rights can be set up on "trademark exclusive rights that can be transferred according to law". This terminology is also inappropriate. of.
Therefore, in the learning process, we must not only have a good understanding of trademark rights through trademark exclusive rights, but also treat the trademark exclusive rights in the Trademark Law differently from what is commonly known as trademark exclusive rights.
3. The practical significance of replacing trademark exclusive rights with trademark rights 1. The substantial return of trademark rights as a civil right.
In the early days of the development of my country's trademark law, the use of trademarks has always had a certain guild nature and planned economy. For example, in the "Trademark Management Regulations" (1963) formulated in the early days of New China, Trademarks have been used as "a sign representing a certain quality of goods. The industrial and commercial administrative agencies should work with relevant departments to supervise and manage the quality of goods." And "Trademarks used by enterprises should be registered with the Central Administration for Industry and Commerce. For goods that do not use trademarks, if it is necessary and possible to indicate the name and address of the enterprise on the decoration of the goods or trademarks, they should be stated so as to facilitate management." . The trademark rights at this time were significantly different from today's trademark rights. The subjects applying for trademark registration were limited to enterprises, and the trademark was not enjoyed by the public as a piece of property. With the enactment and two revisions of the Trademark Law in 1982, trademark rights have completed the transformation from a guild privilege to an ordinary civil right, and the subject of trademark rights has also developed from a single enterprise to an ordinary natural person. In the Trademark Law, the status of trademark rights has been replaced by the "exclusive right to trademark", and its status as a civil right has not been reflected in trademark legislation.
Confirming trademark rights in the form of law in the third revision of the Trademark Law will effectively make up for this shortcoming and make trademark rights known to the public as an ordinary civil right. and acceptance. It will also effectively improve the public's awareness of trademark rights and actively carry out the cultivation and development of independent brands.
2. Balance and improvement of the intellectual property legislative system.
Although my country's intellectual property legislation started later than developed countries in the world, it has established a complete legal protection system for patent rights, copyrights and trademark rights. The innovation and protection of intellectual property rights have also been protected by the state. strong support. Among them, patent rights and copyrights have been legally recognized and protected in the "Patent Law" and "Copyright Law", and although trademark rights have been relatively comprehensively protected in the "Trademark Law", they have always been regarded as exclusive rights to trademarks. Instead, "trademark right" still exists only as a legal concept. This phenomenon has always attracted the attention of many experts and scholars in the intellectual property field. Professor Zheng Chengsi, former member of the Legal Committee of the National People's Congress, once proposed on the eve of the second revision of the Trademark Law that the "trademark exclusive use" clause in the Trademark Law should be changed. "right" is correctly stated as "trademark right".
In this third revision of the Trademark Law, if the trademark right can be legally confirmed, it will greatly improve our country’s intellectual property legislative system and will also my country's trademark law theoretical research and legislative practice are closely integrated.
3. It is consistent with internationally accepted expressions to facilitate international exchanges and cooperation.
In the current trademark laws and related trademark treaties of most countries, the expression "trademark right" is used, such as the "European Conglomerate Trademark Regulations", "Benelux" The Unified Trademark Law of the Economic Union, the Danish Trademark Law, the Japanese Trademark Law, the British Trademark Law, etc. all use the expression "trademark rights". "Trademark rights" The rights that a trademark owner enjoys over a trademark have been recognized by most countries. However, my country’s Trademark Law has always used “trademark exclusive rights” as a substitute for trademark rights, which is somewhat different from the international common expression. If the status of trademark rights as civil rights can be confirmed in legal form in this revision of the Trademark Law, it will be more conducive to international trademark exchanges and cooperation between our country and other countries, and it will also help our country establish civil rights internationally. Protecting the good image of legislation will provide positive space for exploration in the revision and improvement of my country's current trademark legal system.