The Protection Of Third Party Acting In Good Faith In The Transfer Of Trademark Right

The protection of third party acting in good faith is one of the important basic theoretical problems in civil law,but the protection of third party acting in good faith in trademark law which as a special part of civil law,is rarely discussed.Based on the relationship between civil law and trademark law,if the protection of third party acting in good faith is not expressly stipulated in trademark law,can the judge apply the system of the protection of third party acting in good faith in civil law by analogy to protect the third party acting in good faith in trademark law? If so,what conditions need to be met? If not,why? Different courts have different views on these issues,which lead to different judicial decisions.This article takes the protection of third party acting in good faith in the transfer of trademark right as the research object,and tries to make comprehensive use of the text Offering analysis,economic analysis,legal philosophy analysis and comparative analysis,systematically explain the necessity and value of the protection of third party acting in good faith in the transfer of trademark right.And referring to the foreign experience and combine the system of acquired in good faith in civil law of our country to establish a system of protecting third party acting in good faith by obtain trademark right.In addition to the introduction and conclusion,this article is divided into six parts,with a total of more than 40,000 words.The first part discusses whether to protect the third party acting in good faith in the transfer of trademark right from three aspects: protecting the interests of third party acting in good faith,standardizing the order of trademark right transfer and prospering the market of trademark right transfer.In the current law,the protection of third party acting in good faith in the transfer of trademark right adopts the mode of exemption from liability for damages and relief of creditor's rights.This mode of protection ensures that the interests of third party acting in good faith is not lost due to the behavior of others,but it is not sufficient to protect the new benefits obtained by third party acting in good faith through the transaction behavior.Moreover,it is not enough to provide an exact behavior guide and psychological expectation for trademark bargainee,which is not conducive to standardization.The formation of trademark trading mode is also not conducive to the repeated action of trademark trade.Therefore,it is necessary to further protect the third party in good faith on the basis of the existing law.The second part is to discuss the legal value goal should be standard by which the protection of third party acting in good faith as well as the protection to achieve the transfer of trademark right.This article from the essence of the protection third party acting in good faith show that protection of third party acting in good faith should conform to the values of transaction security and fairness.Transaction security is a basic requirement of the order of value.It is a basic value pursuit in Human society in achieving the interests of the whole society,reducing transaction costs,reducing transaction risk,improving transaction efficiency and promoting the transaction occurred.Its reflects the economic reason of the legal protection the third party acting in good faith.The fair in law is the premise of fairness,distributive fairness,exchange fairness and correction fairness.The protection of third party acting in good faith should be judged by the fair in law,which reflects the value rationality of the legal protection the third party acting in good faith.The third part discusses the particularity of protection third party acting in good faith in the transfer of trademark right from two angles of trademark rights of property and trademark publicity.First of all,on the right attribute,this article from the registered trademark to use the trademark explained the process of the existence of the right and the limits of the right which different from the real right,copyright and the patent right,which further leads to the stability of the trademark right,property nature and dominant trait of the trademark right different from the real right,copyright and patent rights.Secondly,as far as publicity of trademark right,this article according to the present situation of publicizing trademark right in our country discusses the way of publicizing trademark right in theoretically,believes that the Trademark Registered Book is the most suitable conduct for trademark attribution and change the public way,but the public effect time and public credibility is different from the real right of trademark publicity.The particularity determines the protection of third party acting in good faith in the transfer of trademark right is different from the real rights,copyright and patent rights transfer in the protection of third party acting in good faith.In the fourth part,from the perspective of the extraterritorial trademark legal system,the author investigates the protection of third party acting in good faith in the countries(regions)that adopt the legislation of registration elements of trademark right transfer and the legislation of registration antagonism of trademark right transfer show that we should refer to the overseas experience and combine with the local system to construct a system of obtaining trademark right to protect the third party acting in good faith.The fifth part aims to combination with the system of acquired in good faith in our country in civil law explain the legal structure of the third party acting in good faith acquiring trademark right in the transfer of trademark right.In particular,it includes two aspects: the constitutive elements and the legal consequences.The constitutive requirements of third party acting in good faith acquiring trademark right include general elements and special elements.The general elements are unauthorized disposition,valid contract,good faith when the contract is transferred,reasonable consideration completion of public and the obligee has imputability,and the special requirements are that the trademark is idle without confusion or other adverse effects.In terms of its legal consequences,when the third party acting in good faith meets the constitutive requirements for obtaining the trademark right,the third party acting in good faith acquires the trademark right,when the third party acting in good faith does not meet the constitutive requirements of obtaining the trademark right,the trademark right still belongs to the original trademark owner,and the third party acting in good faith may claim damages for breach of contract from the actor.If the third party acting in good faith causes damage to the original trademark owner by using the assigned trademark,the original trademark owner may claim liability for tort damages from the wrongdoer,and the third party acting in good faith and the no-fault actor shall not be liable for compensation for this.The sixth part is based on the current situation of the protection of third party acting in good faith in China,and analyzes the deficiencies of the third party acting in good faith system in the transfer of trademark right in China,and puts forward some legislative suggestions to perfect the third party acting in good faith in the transfer of trademark right in China.The deficiency of the protection third party acting in good faith in the transfer of trademark right in China lies in the lack of active trust protection for the third party acting in good faith.In order to make up for this deficiency,the author suggests that China should establish a system of obtaining trademark right by the third party acting in good faith.The effective implementation of this system is based on the perfect system of trademark publicity,so it is necessary to perfect the system of trademark publicity in China.Specifically speaking,the registration in the Trademark Registered Book is the legal status of the mode of publicity of trademark right.It should be recorded in the Trademark Registered Book as the contents of the trademark right publicity that the registration,alteration,transfer,renewal,revocation,invalidation and cancellation of trademarks are related to the establishment,change and alteration of trademark right.