1. The ownership system in civil law

(1) Overview of ownership

The ownership representation type of ownership as ownership , which corresponds to independent enjoyment. There are basically no big differences among domestic scholars regarding the concept of ownership. Most of them are summarized from the three aspects of "subject", "object" and "content". "Civil Law" edited by Professor Wang Liming believes that "the so-called exclusive ownership means that a certain property is jointly owned by two or more rights subjects." [①] Professor Wang Zejian in his "Outline of Civil Law" The book defines it as “the subject of this ownership is usually one person (owned alone), but it can also be enjoyed jointly by several people (two or more people). It is owned by one person and can be divided into separate parties. There is the same thing as ***." [②] Scholar Chen Huabin summarized it in more detail: "*** ownership" is one of the forms of ownership in modern civil law. It refers to the legal system or plural ownership of the same property by two or more rights subjects. Individuals agree that property rights are subject to the same legal status of ownership"[③]

As far as the author is concerned, the meaning of the name "****" is that there are multiple rights subjects collectively claiming a piece of property. Take ownership. Specifically:

First, ***there must be two or more rights subjects, among which the rights subjects can be natural persons, legal persons or other organizations.***There must be The rights subject must be plural.

Second, all objects must be a certain item of "property". The "Property Rights Law" mainly defines "property" as movable property and immovable property. However, from a broad civil law perspective, the connotation of property does not only involve specific objects. Property rights such as intellectual property rights, creditor's rights, and equity are also included. included.

Third, there is a claim to ownership. All human beings have a claim to the thing and are an oath of rights to the ownership of the thing. Without this oath of all meanings, the system will not exist.

(2) Types of *** ownership

In our country’s legislation, *** ownership is divided into “*** ownership by share” and “*** same** *There are two categories. Ownership in shares refers to the form in which two or more individuals enjoy rights and assume obligations over movable or immovable property according to their respective shares. Co-ownership means that two or more people jointly enjoy ownership of a certain movable or immovable property without dividing shares due to the existence of some kind of co-ownership relationship. form. The biggest difference between the rights and obligations of each person in the former and the rights and obligations they have received are determined based on the share they have obtained. ; The latter is because there is some special relationship between the parties, which makes it impossible to divide the shares and they all enjoy the ownership together. Generally speaking, there are two main reasons for the occurrence of this special sexual relationship: first, marriage and family relationships. Article 17 of the "Marriage Law" stipulates that "the property acquired by a husband and wife during the marriage relationship shall be owned jointly by the husband and wife. During the existence of the husband and wife relationship, both husband and wife shall enjoy equal possession, use and benefit from their jointly owned property." and the right to dispose. "At the same time, as members of the family (such as parents, children, brothers and sisters, etc.), every family member has equal rights to the property acquired through their labor during the family relationship. Second, inheritance relationship. After the inheritance begins and before the estate is divided, the rights that two or more heirs have over the inheritance to which they have the right to inherit. What the author needs to explain is that if it is a legal inheritance, since there is a marriage and family relationship between the heirs and between the heirs and the decedent, the inheritance is only a manifestation, and the real cause of the inheritance still belongs to the former marriage and family. relation. In the case of testamentary inheritance, due to the intervention of a non-marital family relationship, the final transfer of property occurs based on the inheritance relationship. 2. According to the share, *** someone has rights and assumes obligations according to his share; *** and *** have equal rights and obligations because the property is indivisible. Only when the relationship between *** ends, each *** Only those who own the property can divide the property and their shares can be determined. Therefore, during the existence of the relationship, each party has equal rights to possess, use, benefit from, and dispose of the property.

2. Intellectual property rights system

In the field of intellectual property rights, the occurrence of relevant legal facts such as cooperative creation, cooperative invention and creation, and joint application for registered trademarks will all occur. Trigger the establishment of intellectual property rights-related relationships. However, at present, my country's "Copyright Law", "Patent Law" and "Trademark Law" have corresponding provisions on copyright ownership, patent rights ownership and trademark ownership. Article 13, paragraph 2, of the Copyright Law stipulates that “if a collaborative work can be divided and used, the authors may enjoy separate copyrights for the parts they created, but the copyright of the entire collaborative work shall not be infringed upon when exercising the copyright.” Article 9 of the "Regulations for the Implementation of the Copyright Law" stipulates this in more detail: "If a collaborative work cannot be divided and used, the copyright shall be enjoyed jointly by all co-authors and shall be exercised by consensus; if consensus cannot be reached, and there is no Without legitimate reasons, no party may prevent the other party from exercising rights other than transfer, but the proceeds shall be reasonably distributed to all co-authors." Article 15, paragraph 1, of my country’s Patent Law stipulates that “If the owner of the patent application right or the patent right has an agreement on the exercise of the right, the agreement shall prevail. If there is no agreement, the owner may implement it alone or with a general license. method of licensing others to exploit the patent; if licensing others to exploit the patent, the royalties collected shall be distributed among the parties.” Paragraph 2 stipulates that “Except for the circumstances specified in the preceding paragraph, the exercise of the exclusive patent application right or patent right shall require the consent of all owners.” Article 5 of the Trademark Law “Two or more natural persons, legal persons or other organizations may apply to the Trademark Office for registration of the same trademark at the same time, and shall jointly enjoy and exercise the exclusive right to use the trademark.” However, the author seems to have read another meaning from the existing legal provisions. Article 29 of the Trademark Law “Two or more applicants for trademark registration shall register the same or similar goods on the same or similar goods. If similar trademarks apply for registration, the trademark that was applied for first will be preliminarily reviewed and announced; if the application is made on the same day, the trademark that was previously used will be preliminarily reviewed and announced, and the applications of others will be rejected and will not be announced." Article 19 of the "Regulations for the Implementation of the Trademark Law" "If two or more applicants apply for registration of the same or similar trademarks on the same goods or similar goods on the same day, each applicant shall receive the If the trademark was used on the same day or neither was used within 30 days from the date of notification from the Trademark Office, each applicant may negotiate on its own within 30 days from the date of receipt of the notification from the Trademark Office and submit the trademark in writing. The agreement shall be submitted to the Trademark Office; if the Trademark Office is unwilling to negotiate or fails to reach an agreement, the Trademark Office shall notify each applicant to determine an applicant by drawing lots. If the Trademark Office has notified the applicant but the applicant did not participate in the drawing, it shall be deemed to be rejected. To abandon the application, the Trademark Office shall notify the applicant who did not participate in the lottery in writing.” It can be said that the trademark law contains the unique meaning of not allowing the existence of trademarks. The expression expressed in the law is that different trademark owners are not allowed to have the same or similar trademarks on the same or similar trademarks. A registered trademark A trademark can only be applied for by one person. If the two applications fail to reach an agreement through negotiation, the decision will be made by drawing lots. As co-owners, whether their inconsistent use of trademarks will cause product confusion and cause infringement to consumers will be the focus of our discussion.

In order to explore whether the private ownership system can be introduced into trademark law, we need to compare the connections and differences between the private ownership system of intellectual property law and the private ownership system of property law. .

(1) Patent rights*** and civil law (property rights)***

1. Comparability analysis

Compare two different The prerequisite of a concept is that the two concepts are comparable, and the criterion for judging comparability is that there is a certain degree of similarity and difference. For genus that does not belong to the same rank, whether the two concepts belong to a subordinate relationship in terms of status level. It is not a clear standard, because we can compare two things at different levels in different fields, and in reality we often do comparative analysis in this way. Finding objects of comparison and conducting comparative analysis entirely depends on the purpose and original intention of our scholars. The ultimate purpose of the comparison is to achieve what kind of effect and what kind of conclusion we want to draw.

Regardless of whether they are in different fields or at different levels, as long as the two have certain similarities and can be distinguished, then we can completely analyze the problem with the help of comparison. There is no difference between two purely unrelated or identical things. Therefore, some scholars have proposed that “to discuss whether patent rights and ownership rights are comparable, it is necessary to find out whether they are at the same level. This also requires solving the civil rights issue between patent rights and ownership rights. "[4] Such prerequisite requirements have no scientific basis.

It was not until the third revision of the Patent Law in 2008 that my country included the content regarding the systematic exercise of patent rights into the Patent Law, which is specifically reflected in Article 15. Before this new law came into effect, the gaps in patent-related provisions were mainly filled by other laws in various ways. Among them, civil legal norms played the most important role. The General Principles of the Civil Law stipulated that certain patent provisions were General principles, specific provisions on cooperative development in the "Contract Law", specific rules on property rights in the "Property Rights Law", several judicial interpretations of the Supreme People's Court, etc., and even legal provisions on torts They also play an important direct normative or indirect reference role for the exercise of patent rights owned by governments. Therefore, patent rights and civil law (property rights) laws can be said to have a certain close connection in their historical origins. At the same time, it is recognized by civil law circles that intellectual property law also belongs to the category of civil law. In the entire legal system, intellectual property rights belong to the civil law department. Therefore, from this point of view, patent rights have nothing to do with civil law (property rights). *There are also certain similarities.

However, the two are not equable. After all, the traditional property rights theory of the "General Principles of Civil Law" and the "Property Rights Law" are mainly based on physical objects, and some clauses of the traditional property rights theory are too There are bound to be certain differences when applying generalities and principles to intangible patented technologies, and they cannot be copied indiscriminately.

2. Comparative analysis

(1) The objects are different. The object of *** patent rights is an invention and creation that is immaterial (incorporeal object) and is indivisible; while the object of *** ownership is material (corporeal object) and is divisible (even if it is * ** and *** exist. When the relationship between ** ends, each *** person can also divide the ** thing and determine its share.) This kind of object non-materiality and materiality (non-materiality) The difference between physical objects and tangible objects is the fundamental reason for the difference between patent rights and ownership rights.

(2) The content is different.

Some scholars believe that “***’s patent rights include exclusive enforcement rights, prohibition rights, marking rights, licensed enforcement rights, and disposal rights, etc.” [⑤] Some scholars believe that “*** The patented content is the patented content, including the right to manufacture, the right to sell, the right to sell, the right to import, etc." [⑥] This different view is caused by different scholars’ different perspectives on dividing content. Of course, there are also some scholars who do not have a clear understanding of relevant issues and regard ***owned patents and ***enjoyed patent rights as both Confused. A patent is a confirmation of ownership and a confirmation of patent ownership. It is generally called "ownership" by academic circles. Its power is consistent with the ownership power of civil law (property rights) - —Possession, use, proceeds and disposal. Patent rights are different. The person who enjoys patent rights can be the inventor or creator of the patent, or a person who can use it according to laws and regulations, or he can obtain it based on the will of the patent owner. However, except for the owner of the patent, no one else can be called the owner of the patent, but can only be said to be the exclusive owner of the patent right. It should be pointed out in particular that the “patent owner” in the law refers to the patent owner.

As for the difference in content, it is mainly reflected in the granting of three licenses owned by the patent owner, namely general license, exclusive license and exclusive license. The rights granting methods of these three licenses and the four forms of ownership rights are all different. Especially when rights are infringed, their respective rights remedies are quite different. However, this difference in content is ultimately caused by the difference between intellectual property rights and property rights, that is, the exclusivity, timeliness and regionality of intellectual property rights.

(3) Rights confirmation methods are different.

The acquisition of exclusive patent rights requires a series of legal procedures such as application, review, approval, and announcement, and is confirmed by the national competent authority. However, the exclusive confirmation of ownership (except for special circumstances such as real estate) does not require application, The review, approval, announcement and other procedures are not granted by statutory authorities.

(4) Different value objectives. Article 1 of my country’s Patent Law clearly states at the outset that the purpose of patent legislation is “to protect the legitimate rights and interests of patentees, encourage inventions and creations, promote the application of inventions and creations, improve innovation capabilities, and promote scientific and technological progress and economic and social development. ". The “core value of property rights law is mainly reflected in determining the static ownership of things, so as to achieve the function of determining the interest and interest, and defining property rights.”[7] The pursuit of value in legislation is different, and the methods of legislation, law enforcement, and law interpretation will also be different. There is a difference in degree, so we cannot copy all rights under the property rights theory into the field of intellectual property.

(2) The most distinctive characteristics of intellectual property

1. The immateriality of the object. The immateriality of the most important object of intellectual property is determined by the immateriality of the object of intellectual property. Like the objects of intellectual property rights, most objects of intellectual property are knowledge products with characteristics without specific physical form that people cannot perceive with their senses.

2. The combination of divisible and indivisible. We can regard songs in copyright law as a complete and indivisible whole, but when it comes to the components of the song - lyrics and composition, they can also be protected by copyright law as independent copyright objects. As a fully functional patented invention, although it contains various other small inventions and small productions, or is a re-creation based on predecessors, there are still differences between its final product and its internal parts. As a whole invention, and it is indivisible.

3. The ultimate principle for the settlement of rights disputes - to promote innovation and development of science and technology and culture, and to achieve continuous progress of science and technology and culture. When resolving difficult cases related to intellectual property rights, the judge’s starting point is not to protect the rights holder’s rights or the proper exercise of rights. In some special circumstances, when there is a discrepancy between rights and progress, what we need to consider is granting rights, To confirm whether the rights can achieve the ultimate goal, even if the right holder's rights are damaged, the judge's decision will have a certain degree of fairness.

The author believes that the current distinction between intellectual property and property rights in the private system is perhaps the most obvious. The above three points of difference are important to whether a private system can be established in trademark law. significance. There are also some scholars who summarize the differences in intellectual property systems from other angles. The author remains skeptical, especially believing that "intellectual property rights have the diversification of subjects" and "intellectual property rights have the duality of rights." and plurality", the author disagrees, because the *** in property law completely matches it. As a feature with no obvious distinguishing factors, it is difficult for us to classify it as the key points of characteristics of another type of thing. .

3. A brief view on trademark protection

At present, there are few academic research results on the trademark protection system, and the history is relatively long. Judging from the students' only ability to collect information, "On *** Have Trademark Rights" co-authored by scholars Liu Junmin and Zhang Jixin, published in "Hebei Law" in 1996, is probably the earliest article. Since then, there have been: scholar Cao Xinwei Scholars Zhu Fang and Cao Xinwei's "Legal Discussion on the Problems Concerning Trademark Rights"; Scholar Qingyuan's "A Brief Discussion on Trademark Rights"; Scholar Wang Ze "Research on Several Issues in Trademark Rights" and so on. These scholars basically agree that trademark rights can have an independent system. There are many reasons put forward. For example, scholars Zhu Fang and Cao Xinwei believe that: trademark right is a property right, and the ownership of trademark rights should be allowed based on property rights; the essential characteristics of trademark rights and the establishment of trademark rights in a factual sense are trademark rights* The theoretical basis and practical basis for the existence of trademark ownership phenomenon; trademark legislation and legal practice should fully respect the free disposal of private rights; establishing a trademark ownership system in our country has important practical significance. [⑧] However, in the author’s opinion, except for the first point “Trademark right is a property right, and from the perspective of property rights, trademark rights should be allowed to be owned exclusively”, the other three reasons seem too far-fetched, and even the third reason seems to be too far-fetched. The three points are only legislative suggestions and cannot be used as substantive reasons.

The determination of reasons is not about looking at the meaning of the existence of a system. Reasons and meaning cannot be equated. Reasons are the prerequisites for the existence of a system and the basis for the birth of the system. Meaning is the value judgment after the establishment of the system. We can establish a system that has no meaning without any reason, but we cannot establish a system that is full of meaning without establishing a foundation for no reason. Perhaps this is the personal opinion of the author who does not agree with the views of such scholars.

Indeed, as a kind of property right, trademark right can completely apply the legal system of other rights, especially the legal system of copyright and patent rights to establish its own* **There is a system. In the way of obtaining trademark rights, the establishment of such a comprehensive system is very necessary. Because "from the perspective of the development trend of independent trademark rights, the phenomenon of independent trademark rights arising from the original acquisition method is relatively rare, while the situation of independent trademark rights formed through inherited acquisition methods is gradually increasing. The main reasons for obtaining exclusive trademark rights through inheritance are: 1. When the decedent dies, the trademark rights are inherited by multiple heirs; 2. The civil entity is divided, and the trademark rights are inherited after the division. Two or more civil subjects* shall enjoy it; 3. The trademark owner transfers its registered trademark to two or more civil subjects at the same time.” [⑨]

But after the trademark is established, do we need to worry? Can the trademark be used to avoid confusion? The core of trademark rights is the exclusive right to trademark. To a certain extent, we can express its meaning as: it is not allowed for multiple people to register the same or similar trademarks on the same or similar goods. This statement actually means that It is to maintain the fragile market economic order. Looking at the trademark legal systems of various countries around the world, we have basically reached this consensus. Our country’s previous Trademark Law also adopted such legislative recommendations. As a symbol and a sign, a trademark can tell consumers, within a certain range, where the goods and services they choose come from. This method is more intuitive and eye-catching than other expression methods, and it brings great benefits. Convenience and benefits, especially for well-known trademarks. However, suppose that a well-known trademark is owned by two or more rights subjects for some reason. If these subjects exist in the product production system of an enterprise, this situation is not bad and there will be no major problems. However, if these entities exist in the production of goods by different companies, how to ensure the consistency of product quality and service under the same trademark becomes an unavoidable problem.

There is indeed a reason for the existence of the trademark protection system, but the practical concerns about the existence of trademark protection cannot be ignored. The author believes that the golden mean can be used as a trial to solve these problems. This method allows the establishment of independent systems but imposes restrictions. This restriction manifests itself in three aspects: 1. Restrictions on sublicensing of trademark rights. The trademark owner can exercise its rights to allow the licensee to have the right to use the trademark, but after the licensing rights are implemented, it cannot be re-licensed at will, and the right to re-license is restricted. 2. Rights holders must be consistent in exercising their trademark rights. This does not seem to be much different from the general government system, but the consensus I am talking about is not only limited to the consensus of the general government system, but also includes the products and services of the companies that are licensed to use it. It must be consistent, and two or more unrelated companies must not be allowed to produce and serve different industry standards. 3. Private ownership of registered trademarks is not allowed, and the private ownership system is limited to inheritance. Whether it is original acquisition or inherited acquisition, as long as there is trademark ownership, this hidden danger of confusion will inevitably exist. However, there is a system and an objective basis for its existence. Therefore, we can only reduce the occurrence of trademark ownership. Type to reduce the possibility of confusion caused by *** system. Inheritance acquisition is an inevitable factor in the occurrence of property rights. In order to be consistent with the legal system of civil law (property rights) and the legal system of intellectual property rights, we allow the property rights generated in this way to have property rights. However, the original acquisition (the trademark applied for registration) can use the administrative action of review to control the country's own system and limit the emergence of the country's own trademark rights.

Trademark rights*** have special and complex legal system issues. If two or more rights holders are allowed to enjoy the exclusive right of a trademark, there is a risk that the registered trademark will lose the ability to distinguish the source of goods and mark the business. The role of reputation can lead to consumers' confusion about the origin of goods and misunderstandings about the quality of goods, and even damage the reputation of registered trademarks." [⑩] Therefore, the legal restriction and control of trademark rights has become an unavoidable way to solve the problem. If confusion caused by trademark rights becomes a common situation, then the trademark rights The exclusivity, benefits and distinction acquired will be meaningless. At present, the academic circles have not yet given a good answer to this question. Therefore, the issue of trademark exclusive rights needs to be further discussed by the theoretical circles.

Notes

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[②] Wang Zejian: "Outline of Civil Law", Beijing: China University of Political Science and Law Press, 2003 edition, page 518.

[③] Chen Huabin: "Principles of Property Law", Beijing: National Academy of Administration Press, 1998 edition, page 469.

[④] Yu Chanjuan: "Comparative Analysis of Patent Rights Ownership and Property Rights Ownership", published in "Journal of Chifeng University", Issue 1, 2011.

[⑤] Zhang Sujun: "Research on Legal Issues of Patent Rights", Master's Thesis of Nanjing University of Science and Technology, 2009.

[⑥] Yu Chanjuan: "Comparative Analysis of Patent Rights Ownership and Property Rights Ownership", published in "Journal of Chifeng University", Issue 1, 2011.

[⑦] Wang Liming: "Research on Property Law" Beijing: Renmin University of China Press, 2005 edition, page 59.

[⑧] See Zhu Fang and Cao Xinwei: "Legal Discussion on Problems with Trademark Rights", published in "The Economist", Issue 7, 2001.

[⑨] Liu Junmin, Zhang Jixin: "On the Trademark Rights of ***", published in "Hebei Law", Issue 4, 1996.

[⑩] Liu Junmin, Zhang Jixin: "On the Trademark Rights of ***", published in "Hebei Law", Issue 4, 1996.