Trademark Right Pledge's Predicaments And Its Solutions

Although China has specifically formulated the pledge of trademark rights in "Trademark Law", "Property Law" and other relative laws, this guarantee model is not widely applied. There are many reasons: the lack of personality in the design of the trademark rights system; the definition and property's vagueness of its registration; the risks in the procession of the pledge of trademark rights; the lack of an agreed formula to estimate and difficulty of its realization. Therefore, we should make some special formulas specific to the features of trademark rights, the nature of the registration of pledge should be set clearly as registration effectiveness; the certificate of the pledge right can be not delivered; found a widely agreed evaluation criterion of intangible assets to face kinds of risks in the procession; abandon the mandatory assessment system and build up intangible property market following the example of US. This paper is based on the analysis of the practical dilemma of the pledge of trademark right, analyzes the problem from the angles of legislation and practice and finally puts forward some legal advice and matched program, which are the most prominent feature and highlight of this paper.There are mainly four parts in this paper except the abstract, introduction and conclusion.Part I: The analysis of the basic issues of trademark rights. Firstly, the conditions of Chinese trademark pledge are analyzed. The trademark rights should be transferable, trademark pledge contract should be signed when pledging, the registration procedure is necessary. Secondly, the legal property of trademark is analyzed; trademark rights are subordinate, inseparable, valuable and compensated preferentially.Part II: The plight and causes of Chinese pledge of trademark right. Firstly, the practical plight that the pledge of trademark right has not been widely accepted is analyzed from two levels. Secondly, the main problems of the pledge of the current system of trademark right are pointed out. There is a mandatory assessment in China's trademark right; the cost of the assessment is too high; the designated assessment agencies may violate the principle of fair competition and the assessment lacks of uniform standards and rules. Thirdly, the main shortcomings in the procession of the pledge of trademark right are indicated, such as, the registration of China's mortgage of trademark rights, the procedures and methods of the mortgage of trademark right and the effective elements of its contract. Fourthly, the problems of the assessment methods of China's trademark right are analyzed. There are some difficulties in assessing the trademark right with the traditional methods like "replacement cost method", "income approach" and "market comparison approach". Finally, the relationship between rights and obligations in the pledge of trademark right is further explicated.Part III: A Comparative Study of trademark pledge. The legislation's achievements and shortcomings in the United States, Britain, Germany, Japan and Taiwan of China are analyzed. Considering the analysis of the above countries'experience, we can get the revelation of China's legislation on trademark right.Part IV: The choices to resolve the plight of China's pledge of trademark right are explained. On one hand, some advice to improve the law system of trademark pledge is presented. Firstly, we should improve the assessment system and establish a standardized assessment of intangible property market. Second, the effective methods and features of trademark pledge contracts are explicated. Third, it is urgent to build a personalized legislation on China's pledge of trademark right. On the other hand, the two effective assessment methods ("cut differential method"and"excess revenue calculations") of the assessment of China's trademark right are introduced. Although the trademark value and the actual value may not be consistent with the two methods when assessed, yet they are quite suitable for the contemporary situation.