The System Of Trademark Assignment And Licensing In China

The development of the intellectual economic brings a boom of assignment and licensingof trademark in the intellectual property market, especially, when establishing a JointedVenture, M&A or conversion to joint-stock company. However, the situation of the trademarkassignment and licensing in the intellectual property market is very complex and diversifying,which leads to many disputes in the field of trademark trading, taking the Danone V.S.Wahaha for example. The Trademark Law main focuses on the protection for trademarkrights but few articles for trademark assignment and licensing. Approximately to speak, thosearticles for trademark assignment and licensing are rational and practical. However, they aretoo rough to be applied to solve the disputes in trademark trading.Referring to the system of trademark assignment, how to comprehend the relationshipbetween trademark transfer contract and the trademark rights transfer is a controversial issue.That is to say that what function exactly the registration system plays is a question. Thecomposition of effective elements for trademark license contract is the main argument aboutthe trademark licensing system. In addition，as the international trade market is more andmore prosperous, many foreign enterprises pour into China.In this boom of investments, theChinese parties only enjoy the right to use the foreign trademark without the foreigntrademark’s trademark right. The Chinese parties will be kicked out after helping promote thevalue of the foreign trademark. Likewise, foreign enterprises sometimes aim at China’swell-known trademark. And they obtain the right of the Chinese well-known trademark by theway of the JV. Finally, they will exclude the Chinese well-known trademark from the marketso as to make their own trademark occupy the market. Regrettably, there are fewcorresponding provisions in Trademark Law on how to protect Chinese well-knowntrademark and how to use the trademarks of the foreign parties in order to make the Chineseparties benefit maximize.As a part of civil law, intellectual property belongs to private rights. So it’s possible andappropriate to apply the basic theories and fundamental principles of civil law to solve theproblems in intellectual property. When analyzing the system of trademark assignment andlicensing, the writer of this paper quotes the principle of distinction and principal of public. This paper is composed of four parts. In the first part, the writer introduces the conceptand legal character of trademark in order to discus the possibility for applying theories of civillaw to improve the legal system of trademark assignment and licensing. The second part isabout the theories of the trademark assignment and licensing. In this part, the writer alsofigures out the problems of theories which scholars debate fiercely. In the third part, the writershows the problem of the systems of trademark transfer and trademark license in China. Allabove, the writer tried to find a way to perfect these situations especially in the JV. The fourthpart is ending words reaffirming the theme of this paper.