Legal Analvsis Of Trademark License

The life of a trademark lies in its use,and only through use can trademark maximize its value in the capital market.The increase in the use of trademark value is reflected not only by the trademark right holder’s labeling of self-products,but also by the use of trademark communicators.Trademark licensing is one of the most important ways for communicators to use trademarks.However,due to the defects of the trademark licensing system itself,the transaction of trademark license in market economy will be affected objectively,so as to hinder the achievement of trademark value.There are also many problems in China’s trademark licensing system,and this situation needs to be improved.The emergence of institutional problems should be the concrete manifestation of theoretical defects,while the accurate grasp of the right attributes is not only the key to explore the contradictions of systems,but also the premise to solve institutional problems.The inquiry and solution of the system problems in the use of trademark license should also be based on the correct grasp of the use right under trademark license.The use right under trademark license refers to the rights obtained by the licensee through the legal act of trademark license.As trademark license is generally carried out through contract,the use right under trademark license is often considered as creditor’s right.But the use right under trademark license joined by the exclusive licensee and the sole licensee is objectively absolute,which is contrary to the rights and powers of the creditor’s rights.In essence,the use right under trademark license is different from one to another way of trademark license.Specifically,in trademark exclusive license and sole license,the use right under trademark license is essentially a usufruct trademark right against the world with exclusiveness.In ordinary trademark license,the use right under trademark license is only a creditor’s right.Based on the difference of the nature of the use right under trademark license this dissertation makes a legal analysis,points out its deficiencies in the system,and puts forward suggestions of promotion based on the overseas comparison.The first chapter is the study of the theory category and system of the use under trademark license.The exposition of the use under trademark license should be based on the clarification its basic category.Therefore,this chapter first analyzes the basic category of the use under trademark license.The use under trademark license extends among registered and nonregistered trademarks,collective and certification marks;while the essence of the use under trademark license is transfer and lease of goodwill;trademark license in the theory includes the trademark license with express meaning and the license to use of trademark with implied meaning,in legislation includes exclusive license,sole license and ordinary license;Through the comparison of the trademark license and trademark transfer is the characteristics of trademark license revealed;The trademark licensing system also has its legitimacy and value.Secondly,the nature of the use right under trademark license was discussed.By comparing the differences between the continental law system and the Anglo-American law system,it points out that trademark license is essentially the granting of right.The use right under trademark license enjoyed by the trademark Licensee differs from each other in essence because of the different ways of trademark license,namely in trademark exclusive license and sole license,the use right under trademark license is essentially a usufruct trademark right against the world with exclusiveness.In ordinary trademark license,the use right under trademark license is only a creditor’s right.Finally,based on the two-division of nature of the use right under trademark license,the system of the use under trademark license was observed,points out there is no institutional arrangement to the use under trademark license in the quality assurance of trademark license,the right to sue of the licensee,record of trademark license and trademark license contract.The second chapter is the comparative analysis of the system of the use under trademark license.Because of the difference in the nature of the use right under trademark license,there are institutional puzzles in quality assurance of trademark license,the right to sue of the licensee,record of trademark license and trademark license contract,the overseas observe and analysis aiming at those problems are carried out in this chapter.As far as the quality assurance requirements in trademark license,in the extraterritorial trademark license is the responsibility supervision of the Licensor mainly regulated,but from the view of the change of trademark licensor’s quality supervision responsibility standard by "sufficient" to reduce "enough" finally to reduce "minimum"in American case law,the essence of quality supervision and liability for trademark licensor has shown a weakening and performance for a fictive system in foreign countries.As far as the right to sue of licensee is concerned,foreign countries generally grant the licensee the right to sue with or without proper restriction in exclusive license,while certify no right in ordinary license in abroad.In the record of trademark license,most countries adopt the registration as antagonism for trademark exclusive license,but rarely require registration for trademark nonexclusive license.In terms of licensing contracts,by analyzing the case law abroad,it is found that in the process of judging the ownership of interests,the contractual agreement is the main criterion.The estoppel rule in the field of trademark license in abroad says,the estoppel rule is only applicable to the question defense of the trademark before the end of the legal relationship;and the use under trademark license is not restricted by the estoppel rule for the special trademark with public attribute.The third chapter is the current situation and problems of the use under trademark license in China.This chapter,on the basis of examining the extraterritorial practice,reflects on the current situation and existing problems of our country’s system.In terms of quality assurance requirements in trademark license,it can be seen from the provisions of the article 7 paragraph 2,article 43 paragraph 1 of China’s trademark law that China also stipulates the quality supervision responsibility of Licensor and the quality assurance obligation of the Licensee in trademark license.From the view of two-division nature of the use right under trademark license,the trademark licensee should bear the requirements of quality assurance in trademark license in essence.However,because of the development of trademark practice,the function of trademark quality assurance is difficult to be self-consistent,and the problem needs to be solved urgently.In the right to sue of trademark licensee,according to article 4 paragraph 2 of China’s Suprewme People’s Court on Several Issues concerning the application of law in civil dispute cases of trademark explanation,the exclusive licensee has the independent right to sue,and the sole licensee has addition right to sue,and the ordinary licensee has the right of implementation in litigation.However,considering the nature of the use right under trademark license,because the difference among exclusive,sole and ordinary licensee,China’s arrangement of the right to sue of trademark licensee is unreasonable.In the record of trademark license,the system of trademark license in China requires the registration of the trademark license for the record.However,due to the difference of the nature of the use right under trademark license,only the exclusive and sole trademark license need to be registered,but the ordinary trademark license has no need to register.In the aspect of the trademark license contract,under the two-division of nature of the use right under trademark license,due to the particularity of the use right of licensee in non-ordinary trademark license,the interest ownership in trademark license contract,the estoppel of the licensee and the dealing of the trademark license contract in insolvent process will be affected.However,there are deficiencies in the agreement of interests in trademark license and the estoppel rules of the licensee,and there is no special arrangement for trademark license contracts in insolvent process.The fourth chapter is the improvement of system of the use under trademark license in China.On the basis of the overseas observe above,this chapter is based on the correct grasp of the nature the use right under trademark license,has made a perfect system for the use under trademark license in China.As far as the quality assurance in trademark license supervision responsibility of trademark licensor should be abolished.On the right to sue of trademark licensee,we should arrange differently from the ordinary licensee to the non-ordinary licensee,that is,exclusive and sole licensee can enjoy the independent right to sue,while the ordinary licensee does not have the right to sue.We should optimize the design of trademark license record,that is,exclusive license and sole license should be registered,but there will be no requirements of registration for ordinary trademark license.In the trademark license contract,we should establish the mechanism to clarify the ownership of interests,introduce the estoppel rule,and at the same time,we should specialize the trademark license contract in the enterprise bankruptcy management.The fifth chapter is the legislative suggestion to improve the system of the use under trademark license in China.Based on the analysis of the problems in the use under trademark license,the overseas investigation and the response,the legislation of trademark license is perfected on the use under trademark license in the Trademark Law,Regulations on the Implementation of Trademark Law and other relative laws and regulations.