Research On The Licensing Use Of Trademark System

With the development of intellectual property trade, the licensing use of trademark is acommon phenomenon. For a long time, the legal community of trademark and theoreticalresearch mainly study how to obtain trademark rights, trademark right restrictions, trademarkinfringement and tort remedies rules, the licensing use of trademark has not been able to getenough attention. This paper tries to examine and analyze the problems of the trademarklicensing use appeared in the process of legislation and practice, in order to identify and solveproblems, and expect to benefit the licensing use of trademark theory research and systemimprovement. This paper is divided into five parts:Part I: history of the licensing use of trademark system. This part which mainly uses themethod of historical research tries to review the development course of the trademarklicensing system in our country. It mainly introduces the trademark licensing regulations，which include the "brand law" developed in Qing dynasty five that Shanghai-chi clothindustry algae Church hall made in order to let the same industry cloth merchants use clothtrademarks, the "trademark registration pilot Constitution"-the first formal trademark laws andregulations promulgated by the Qing government in1904, the "trademark Law "adopted in1982and the subsequent revision of trademark licensing provisions. From the enactment andamendment of the China’s trademark law，we can see the development path of China’strademark licensing system.Part II: the basic theory of the licensing use of trademark. First of all, this part definesthe licensing use of trademark; Secondly it introduced the trademark licensing classifications,which consist of specific exclusive licensing, exclusive licensing and ordinary licensing;Thirdly it analyses the licensing use of trademark in law from three point of view, thattrademark right is private right, trademark right is property right, and trademark right isinvisible; Finally this paper discusses the significance of the licensing use of trademark.Part III: comparative study on the licensing use of trademark system. First, the partcarries on the analysis from the procedure. The United States doesn’t order to stipulate thetrademark licensing to the department in charge of trademark registration. Only a trademarklicensing contract be registered in Denmark, Belarus and other countries, it will come intoeffect. In Belgium, Taiwan and the European Union, registration is against the third person. Britain regard the registration as the elements to get damages or revenue account.Secondly,the trademark licensing use should be limited, such as the licensing of mutual trademark,certification marks, collective marks and defensive marks.Part IV: the problems of the licensing use of trademark system in our country. Thedefects include the following sections：First, the trademark licensing contract filing system isin need of reformation, mainly analyzing on two aspects: the validity and content of therecord,and the procedure of the record; Second, the trademark licensing is not listed in theproper manner；Third, it doesn’t stipulate the validity of the trademark licensing; Fourth, theobligations and the liability of the licensor and the licensee are not clear; Fifth, while the sametrademark is licensed and transferred at the same time, the provisions about this are too simple;sixth, after the termination of the trademark licensing contract, the provisions about thedealing are unreasonable.Part V: improvement of the licensing use of trademark system. The improvementsinclude the following sections: First, they should reform trademark licensing contract filingsystem, specifically to clear the validity of the record, to change the content of the record, andadd change and termination procedure for the record. Second, they should bring in the publicannouncement system of the trademark licensing. Third, they should clear the validity of thetrademark licensing; Fourth, they should perfect the licensee’s obligations and legalresponsibility; Fifth, while the same trademark is licensed and transferred at the same time,they should increase of the provisions about it; Sixth, they should properly handle thetrademark licensing problems after the termination of the contract.