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Validity Of The Contract For The Use Of Unregistered Trademarks

2010/11/23 18:12:00 83

In addition to tobacco products, China's laws do not prohibit the use of other goods and services.

Unregistered trademark

Therefore, a large number of unregistered trademarks are widely used in commercial activities. With the gradual enhancement of the legal awareness of trademark protection in China, the unregistered trademarks are not registered.

Licensing practice

There are few cases where permission to apply for a trademark that has not been registered is rare.

However, disputes that have exclusive rights and have been applied for but have not been approved are common.

Because the exclusive right of registered trademark is a statutory right, it must be authorized by the authorized organ of the state. It is uncertain whether the unregistered trademark can be approved or registered. At present, the trademark law and relevant laws and regulations do not stipulate explicitly the problem of the unregistered trademark. Therefore, there are many disputes in the lawsuit practice that the unlicensed trademark license contract belongs to the effective contract, the potency contract or the invalid contract.

So-called

contract

Effect

It refers to the legal binding force between the parties established according to law.

According to the relevant provisions of the general principles of the civil law and the contract law, the general stipulations on the conditions for the entry into force of the contract include, (1) the actor has the corresponding civil capacity; (2) the intention is true; (3) it does not violate the law or the public interest.

In violation of the law or social public interests, there are specific criteria: whether it is harmful to the interests of the state or the public, whether it violates the mandatory standards of laws and administrative regulations, whether collusion is harmful to the legitimate rights and interests of the collective third parties, whether it is a legitimate form of concealment of non legal purposes, the impact of registration on the effectiveness of contracts, and so on.

The forty-fourth paragraph and the second paragraph of the contract law stipulate that the procedures for approval and registration shall be carried out in accordance with the provisions of laws and administrative regulations, and shall be in accordance with the provisions.

At present, China's law does not prohibit the use of unregistered trademarks.

The author believes that the signing of an unregistered trademark license contract is obviously conditional on the formation of civil juristic acts under the condition that both parties of the contract are qualified and the meaning is true, and does not belong to the invalid contract.

As to whether the contract is a valid contract, according to the provisions of our contract law, the defects of the effect of the pending contract are mainly due to the defects of the main body of the contract, including the four situations of the parties concerned, such as the lack of contracting ability, the ability to dispose of the contract, the surpassing authority and the qualification of the contract.

The author believes that in the case of the unauthorized use of the unregistered trademark by the two parties, it should be recognized as an effective contract, which is also in line with the essence of the autonomy of commercial law. It is also necessary to confirm the validity and validity of the contract for the unlicensed commercial license from the perspective of the principle of commercial law which is convenient, safe and fair.

In addition, confirming the validity and validity of the unlicensed trademark contract is of great significance in the current situation of trademark application review in China.

In the case of massive increase in trademark applications in China, even after no objection procedure and review procedure, a trademark generally requires two years to apply from the application to the final approval. In today's information age, with the advertising investment and the appropriate marketing strategy, a nameless brand can be built into a well-known brand in two years. The trademark in the application process may carry a great value of goodwill 3. The trademark applicant obtains profits through licensing, which is entirely legitimate and legitimate.