And the alienation of the nature of trademark rights

Keywords:: right to the essence of pArticular interest, magic, private rights, trademark rights nature, alienation

Summary: The essence of the right to enjoy the special interests of the power of the Law. "Specific interest" and "the power of the Law" is not only the right to the classification criteria and the basis on which the benefit of the legal rights of a specific technology, the specific system design of two core elements that should be considered. trademark as a personal right, the interests protected by the goodwill and trademark rights to the object. logos and trademarks are the specific link between a pArticular commodity, not the specific identity itself. China Current <<Trademark>> in the design of the system for specific trademark, the trademark of the essence of varying degrees of alienation.



China <<Trademark>> the third revision of the ongoing, fierce debate, but also many differences. Some controversy exists for the current field of trademark Law some abnormal phenomena, such as registered trademark issues, trademark, trade issues. Some trademark rights related to the controversy itself, for example, the source of trademark rights, trademark rights of property and so on. In this paper, the essence of the right staff to the nature of the right to pass that as the basis to explore the nature of trademark rights to the contrary, China's current << Trademark Law>> of the trademark design of the system.


First, the nature of rights

Famous German jurist Andre von Tours said: "The rights are the central concept of private Law, and legal life for the diversity of the final abstract." [1] In view of the importance of the rights of people spend a lot of effort to to explore the nature of rights. On the nature of rights, there are three theories of history, that means that the interests of that and mana said. Mana said that the meaning and benefits of a combination of that and said she and interests to overcome the lack of that, then the nature of a right to pass, said today. [2] Mana said that is the essence of the right to enjoy the legal power of special interests. based on only the dollar, right by the "special interests" and "force of law," the two elements. which "special interests" refers to the life interest, the carrier often referred to as the right to object. [3] in which "the power of law" means a power conferred by law, such power of support and protection by law, by virtue of this force, the right of people not only can dominate a pArticular thing, but command a specific behavior of others.


According to Mana said, right by the power of special interests and the law constitutes two elements, therefore, on specific rights, each other's specific interests and the power of law will be different, or specific differences between the interests, or the force of law differences between, there are differences, or both. In addition, due to specific interests and legal rights including the power of two elements, therefore, the benefit of the legal rights of a specific technology, the need for special interests and the power of the two laws elements should be considered, or will be included in the existing right of the right type, or differences between the two elements of design, make this right as a new type of rights.


Second, the nature of trademark

(A trademark of Private Property

World Trade Organization <<with the TRIPS "Agreement> referred to as the TRIPS Agreement standard introduction at the outset that the private rights of intellectual property rights. [4] TRIPS agreement under the second paragraph of the first pArt of the provisions of Article I, trademarks belong to the areas of intellectual property rights agreement. Therefore, trademarks belong to private rights.


Public power for private rights is a relative of. Private rights advocates "natural rights", advocating "autonomy" to pursue "law does not prohibit the free" and adhere to the "non-divisions and ignored" the principle of legal remedies. We passed the law interests of the private rights of a particular time, we must uphold the basic principles of private rights. trademarks are proprietary since, we in the legal system design trademark, it must be the essential attribute of private rights to the specific the corresponding legal system, rather than the opposite. In the right sources, based on "natural rights" and Locke's labor theory of trademark rights is not a mandate from the government, but from human rights or labor to create their own discoveries. did not find or labor to create, there is no right. in the exercise of rights, based on the "autonomy" principle, the exercise of trademark rights, including the transfer of rights and the right to authorize, without government approval. the scope of rights, based on the "law does not prohibit the free "principle, the law should not restrict the exercise of trademark rights, unless such exercise prevents the normal realization of the legitimate interests of others, constitute abuse of rights. the right to relief, based on the" non-divisions and forget "principle, when trademark rights are infringed upon , public power as a tool for private rights should not take the initiative to supplement relief assistance trademark.


(B trademark of the object

1. Particular interests protected by trademark

Trademark is a private right, therefore, particular interests protected by trademark rights should be the interests of personal life. According to Pound's discussion of the interests of personal life can be classified as: (1) personality interests, means that the material and spiritual existence of the requests and needs , (2) family benefits, refer to the so-called "extended personal life," the requests and needs, (3, material benefits, refer to the economic life of the individual requests and needs. [5] Based on the foregoing, the particular interests protected by trademark rights should be an individual material interests. As we know, the personal and economic life in society contains four requirements or requests: The first is the control of tangible property, the requirement that the natural medium of human life - the narrow sense of property claims, the first two types of requirements including those engaged in activities and freedom of contract, in the business, occupation, work, and commitment to the freedom of the conclusion and performance of the contract, the third category is a commitment to the benefit of the monetary commitment to fulfill the request, the fourth is in connection with occurrence of economic interests of others, whether this relationship is contractual, social, commercial, public service or the family, seeking protection from external interference in its request. [6] clearly does not belong to the second category trademark request and the third category requests.


The first request by the force of law after giving a narrow property rights, the appropriate law to be narrowly property law. The fourth category relating to the protection from external interference in business relations request, after confirmation by the law against unfair become competition law. protection from external interference in business relations is an emerging area of ​​law. to be protected is a matter of interest, its protection principles and the same narrow principle of protection of property. Initially based on a single, narrowly defined concept - to counterfeit goods of a person into another person's goods, the concept of unfair competition only for the so-called "trademark case." Through continuous development, in particular the rapid development of modern times, the legal concept has been a dramatic change: from the A man pretending to be another person of goods for goods identified as illegal, into a business relationship is a violation of others. [7] However, in modern times, the request for trademark protection in most countries to unfair competition from separate the content of separate legislation. then contemporary, trademark, property rights are narrowly defined, or are business relationships are protected from external interference claim it? general property law, including the narrow property law, property law and protection of intangible growing interest in the law on economic principles, and the same three principles of protection, [8] Therefore, regardless of the trademark as intangible property rights, or as protection from external interference business relationship claims, it belongs to the generalized property comes as no doubt. According to the first class of the request, require control by the individual property is the property of their capacity to find and charge the right to request things, asked to control it through labor - physical or mental work - the product created at the request right. [9] specific to the trademark, the individual asked to control its ability to find and charge the property of their things what is it? or individual through their work - physical or mental work - the product created what is it? trademark as a property right, not from a registered Trademark Office, but from the actual use of the trademark and the goodwill arising, that consumers are trademarks of the positive comments. [10] can be seen Trademark holders through their work - the actual use of trade marks - and create a goodwill, therefore, were asked to control trademark rights created by the products of their labor can only be goodwill. Therefore, the goodwill is the trademark of the protection of specific interests.


2. The object of trademark

Particular interests protected by trademark rights is goodwill, then the vector carrying the goodwill it? In other words, what is it the object of trademark rights? Intellectual property law the object of intellectual property scholars have done a lot of exploration, the basic form information that the signal that the sign said, knowledge that, knowledge products, said the form says. [11] Most of the current holders of intellectual property law experts said the information, and the World Intellectual Property Organization also believes that the object is a certain type of intellectual property information [12].


Specific to the trademark, its object is some kind of information should be. According to the aforementioned object of intellectual property law academic discourse on intellectual property, basically boils down to identify such information or business logo. In their view, is the logo or business logo trademark of the object, this particular interest is the carrier of goodwill and trademark classified as a "mark of rights." in accordance with the "mark of rights" argument, but is a commercial logo trademark, trademark rights is that people respect the rights of business identification. trademarks are the carrier of business goodwill. [13] the goodwill of a trademark is hosted by the actual use of trademarks obtained. specific business identity with a particular combination of goods or services, and true-to-market use, Goodwill is the accumulation of daily business. On the contrary, no specific business identity with a particular combination of goods or services, and true-to-market use, enterprises can not be formed of goodwill. Therefore, the actual use of the trademark is the gradual accumulation of goodwill and the way the formation of . The actual use of the trademark is to identify a specific commercial product or service with a particular establish contact, and continue to strengthen this linkage process. I believe that a specific business goodwill alone can not identify the carrier, only with the specific goods or services contact between the carrier in order to become goodwill in order to become the object of trademark rights. In short, refers to a particular trade mark should be identified with a specific commercial connection between the goods or services, not the identity of a business itself. a specific business identification, only in specific goods or services linked to the market and provide consumers, be possible to obtain positive evaluation of the consumer, thereby increasing the accumulation and associated goodwill. [14] Thus, only When a particular business goods or services identified with a specific combination of a true-to-market use, the commercial logo and the corresponding goods or services in order to establish a real connection to the goodwill associated with the gradual accumulation and the increase can become a business trademark reputation of the carrier, the trademark owner and therefore to get trademark rights. When the mark to become the carrier of the goodwill, the protection of trademark protection has become the way of goodwill. In other words, protection of trademarks is to protect the commodity producers, service providers, through the painstaking operating and accumulated goodwill, not to protect the commercial identity itself.


(C power of trademark law

1. Trademark is absolutely right

As mentioned earlier, narrow property, intangible property rights and protection of economic interests without external interference principle of protection of the right to request the same, therefore, whether the trademark as intangible property rights, or as protection from external interference in business relations requests the right to narrow the protection of property rights, the principle should apply to trademark rights. narrow control of property rights is the individual requirements of its ability to find and charge the property of their right to request things, require control of their creation through labor and product claims. specific to the mark rights, trademark rights of their people is to ask the goodwill created by the labor control. This control requirements have been given "the power of law" embodied after the owner of the trademark owner the right to demand respect for the rights of the rest, and without prejudice the exercise of their rights and implementation. therefore, that trademark is absolutely right.


2. Trademark is the dominance

As mentioned above, trademark protection of property rights with the narrow principle of the same, so one can trademark their own industrial and commercial activities, use of its trademarks, exclusive of its goodwill, together with the goodwill of the trademark can also be directly transferred to another person, no need intervention or assistance of others behavior. Meanwhile, the trademark shall have the right to exclude others from impeding the exercise of trademark rights, the right to prohibit others from using their trademarks, to share their goodwill, exclusive. It can be seen, trademark completely have control over the direct control of specific and comprehensive exclusive. Therefore, the trademark is a kind of dominance.


Third, the nature of the alienation of trademarks

Links to Research Papers Download http://www.hi138.com (a trademark of alienation Private Attribute

China's current <<Trademark>> have a strong color of public law, in fact, the administration of a trade mark law. The practical needs of industry and commerce administration dominate trademarks are subordinate to and serve the needs of industry and commerce administration, and not vice versa. Therefore, we can hardly call it a real sense of private law, the right method. This is the trademark law was often included in economic law and economic administrative reasons.


<<Trademark>> first [15] would "strengthen the administration of trademarks" as the primary task of the legislation on marks and goals, "trademark protection" is only a means of strengthening the administration of trademarks, "to promote the production, the operators to ensure that goods and service quality "means. We do not deny that the ultimate goal of protection of trademark rights is" to protect consumers and production interests of the operators, and promote the development of socialist market economy ", the problem is the concept of such legislation and specific institutional design is conducive to Haishi hinder the achievement of our legislative intent. trademark or service quality itself and the goods are not natural, inherent relationship between the artificially force the trademarks and product or service quality to establish contact is unscientific, is optimistic that strengthening the administration of trademarks to "promote production managers to ensure that goods and service quality "is not desirable." trademark management can not be equated gun control "almost as popular proverbs, but it has failed to implement the trademark legislation. Private property requires Trademark Trademark rights law should be, not the law of obligations, the management method. to return to proprietary nature of trademark rights, the rights returned to the right people, the problems we currently face will be reduced more, some of the problems even exist.


(B particular interests protected by trademark rights of alienation

For the particular interests protected by trademark rights, as mentioned, generally attributed to the specific interests of the owner of the trademark logo and enjoy the business benefits. Some even identify itself as the commercial intellectual achievements, and as a trademark is the basis of intellectual property is marked sexual rights. Based on this understanding, the current Trademark Law of China took particular interests protected by trademark rights for the commercial identity of alienation itself.


Particular interests protected by trademark rights is goodwill, no goodwill, there is no trademark, the trademark registration itself does not have trademark rights, trademark registration is simply to notice or record. [16] However, according to the present <<Trademark>> , as long as provide information on identity and specify the product name, they can become registered trademarks, and thus obtain trademark rights. This makes the Internet network under the streets to sell the trademark in China become the norm. and confined to only registered trademark rights can be achieved understanding, then China as "WTO" will be the protection of unregistered well-known trademarks include <<Trademark>> hard to understand for some people a long time. In fact, nothing wrong with trademark registration system itself, and also adopted in most countries, is worth exploring the legal effect of registration of trade marks. Based on the foregoing, goodwill is not from a registered Trademark Office, but from the actual use of trademark, trademark registration alone does not result in goodwill, therefore, can not by virtue of trademark registration trademark registration in itself direct access to trademark rights. This is why the United States Trademark Law provides that the trademark must be accompanied by the transfer of goodwill or business enterprise itself, and not a separate sale. [17]

(C alienation of the power of trademark law

As mentioned earlier, as a kind of control over the trademark rights, trademark rights may in their own business activities in the use of its trademarks, exclusive of its goodwill, together with the goodwill of the trademark can also be directly transferred to others, there is no other behavior intervention or assistance. But China's current <<Trademark>> puts the power of alienation of trademark law may no longer have direct control of.


Current <<Trademark>> provides the transfer of trademark rights requires the approval of the Trademark Office. [18] According to the <<Trademark Law Implementing Regulations>> the provisions of third paragraph of Article Five, trademark transfer requires approval of the Trademark Office is a trademark of the reasons transfer possible mistake, confusion or other adverse effects. [19] If the mark is cause mistake, confusion, the meaning of the original trademark owner and the assignee will carry the mark of goodwill to share, shared trademark. This species is essentially a trademark license case. rational economic man is not on the price of the transferee to accept the trademark trademark license, just like housing tenant house sale price will not sign the same lease agreement. trademark transfer require approval of not only the absolute denial of the right to property and trademark control over the property, also denied the economics on the basic assumption of rational economic man.


IV, conclusions and recommendations

Trademark as a personal right, the interests protected by the goodwill and trademark rights to the object. A trademark is a specific identification with a specific link between the goods or services, not the business identity itself. Mark the goodwill of the host, through the actual use of trademarks obtained. no actual use of trademarks, goodwill will not be formed, but no trademark rights. Current <<Trademark>> in the trademark system designed for specific departure from the trademark Private property, confused the particular interests protected by trademark rights, trademark one-sided understanding of the content. We should recognize the nature of trademark rights, and realistically identify the existing <<Trademark>> the nature of the alienation between trademark rights, With <<Trademark>> the third revision of the wind, strive for an early return to the origin of trademark rights. Specific recommendations are as follows:

(A trademark made in regard to "use-based, registration, supplemented by" the principle of

Trademark is the legal effect of filing notice or trademark is not a trademark use, the act itself does not have the legal effect of granting trademark rights. Trademark registration must be used to generate trademark rights, trademark registration is not generated after the trademark is not used . The principle is not only to encourage enterprises to actively registered trademarks, more active use of mandatory requirements of enterprises registered trademark.


(B in trademark protection, take "use decisions protect the" principle

Registered trademark, the trademark determine the actual use of trademark protection. Continued use of registered trademarks longer, more extensive use of geographical scope, the greater the appropriate scope of trademark protection. On "Using decided to protect" principle There are two extreme cases. First, the trademark has been registered but not used, they will not form a goodwill, no trademark, the trademark infringement does not occur. Second, even if the unregistered trademarks, but the continued use of the time long, with wide geographical range, a high degree of public aware of, then also have a corresponding trademark. This is known as the unregistered well-known trademark protection system.


(Three in the transfer of trademark rights, to take "common transfer" principle

Trademark owner of the trademark will be transferred to others, should be transferred along with trademarks and related business to the assignee, the transfer of trademark rights shall not be alone. Trademark transfer is the transfer of commercial signs, in essence, the transfer of goodwill associated, there is no goodwill Nature does not exist a trademark of the basis for the transfer of trademark rights. "joint transfer" principle is also inherent to ask trademark must be used before the transfer, without the use of trademarks is not transferable. For the trademark license, the more so, that is not can not permit the use of trademarks.


(Iv administration of trademarks, trademark rights to the transfer of registration of notice to the system, the Trademark License to take note for the record system.

As mentioned above, trademarks are private rights and control over the approval without going through the Trademark Office, Trademark Office, the fact that only the transfer of registration of trademark shall be published and you can. As trademark license, you can continue to use the current registration filing system.




Notes:
[1] cited in Wang Zejian: <<Civil General>> China Politics and Law University Press, May 2001, p. 83.

[2] See Zhengyu Bo: <<Civil General>> China Politics and Law University Press, August 2003, p. 62, Wang Zejian: <<Civil General>>, p. 84, Professor Liang: <<Civil Law>>, Law Press, March 2001, p. 77.

[3] on the right of the object, it is called mixed. Have the right, said the subject, see Zhengyu Bo: <<Civil General>> page 65, has said the right subject matter, see Wang Zejian: <<Civil General>>, p. 85 have said the right to point to the object, see [German] Dieter Medicus: <"German Civil Law>>, Shao Jiandong Translation, Law Press, September 2001, p. 280.

[4] the original is "Recognizing that intellectual property rights are private rights."
[5] [United States] Roscoe Pound: <<Jurisprudence> "(the third volume, Liao Deyu translation, Law Press, February 2007, p. 22.

[6] [United States] Roscoe Pound: <<Jurisprudence> "(the third volume, Liao Deyu translation, Law Press, February 2007, the first 77-78 pages.

[7] [U.S.] Roscoe Pound: <<Jurisprudence> "(the third volume, Liao Deyu translation, Law Press, February 2007, p. 173.

[8] [U.S.] Roscoe Pound: <<Jurisprudence> "(the third volume, Liao Deyu translation, Law Press, February 2007, p. 172.

[9] [U.S.] Roscoe Pound: <<Jurisprudence> "(the third volume, Liao Deyu translation, Law Press, February 2007, p. 81.

[10] Li Mingde: <<the third anniversary of the death of Professor Zheng Chengsi Collection>> preamble.

[11] See Jin Haijun: <<Intellectual Property Private Right of>> the Chinese People's University Press, December 2004, p. 10-11, see Zhang Qin: <<IP object of the philosophical foundation> ", in the <<IP>> 2010, 2, p. 4.

[12] Jin Haijun: <<Intellectual Property Private Right of>> the Chinese People's University Press, December 2004, p. 10.

[13] Bryan A. Garner, Black 's Law Dictionary (Eighth Edition), THOMSON WEST, p.715.

[14] Li Mingde: <<a trademark and trademark protection Research "> the" Preamble ", Law Press, 2008 edition, p. 3-4.

[15] <<Trademark>> Article I: In order to strengthen the administration of trademarks, protection of trademark rights, to promote production and business operators to ensure that goods and service quality and maintain reputation of their trademarks in order to protect consumers and producers, operators interests, and promoting the development of the socialist market economy, especially with the law.

[16] Li Mingde: <<the third anniversary of the death of Professor Zheng Chengsi Collection>> preamble.

[17] See United States Code, Chapter 22 of the 1060 requirements.

[18] <<Trademark>> thirty-ninth second paragraph of Article provides that the transfer of registered trademark has been approved, to be announced. Transferee from the date of the announcement entitled to trademark rights.

[19] <<Trademark Law Implementing Regulations>> Twenty-five third paragraph shall, on the possible mistake, confusion or other adverse effects of the transfer of registered trademark, the Trademark Office shall not be approved, notify the applicant in writing and explain the reasons . Links http://www.hi138.com Research Papers Download