On The Quality Control Obligations Of Trademark Licensee

At the very beginning of the trademark theory, a trademark mainly means a specificorigin of goods. therefore, under this understanding, it’s incredible to mention trademarklicense. But with the social economic development and the prosperity of the trade, thespecific source theory of the trademark can not keep up with the trend of the time, thesignified has changed into the anonymous origin and eventually changed into guaranteethe quality of product or service. Guarantee the quality of product or service, as a functionof trademark, gradually attract the academics attention. People realize this function has aincreasingly prominent foundation status.With the changing of trademark function in the people’s mind, the trademarklicensing system obtains a theoretic basis. Trademark licensing system has been played anirreplaceable function in the process of market trade developing and the formation of theglobal market. In order to maintain the existing foundation of this system and protect theconsumer’s rights in the trademark licensing, the trademark licensee has the obligation tocontrol product’s quality to make product have a certain quality. There are two standardsto determine whether the trademark licensee fulfill the obligation or not: positive standardand negative standard. On one hand, the positive standard test, if the trademark licenseedoes not perform or did not fully comply with its quality control obligations, may bedeprived of its trademark rights, this is decided by the inherent nature of quality controlobligations—obliegenheiten. On the other hand, although the quality control is a right oftrademark licensee, but the exercise of this right can not go beyond certain boundaries,otherwise there is possibility to be punished by the Anti-monopoly law.In order to protect their trademark rights, in the process of carrying out thetrademark license, trademark owners should be careful select the licensee. In thetrademark licensing contract should be setted out appropriate quality control provisionsand put them into practice. Under normal circumstances, the trademark licensee can usemang means to control quality, such as product direct sales, direct examination, create avendor-specific systems and so on, quality control obligations entrusted to a third party tofulfill, quality control obligations can also be delegated to a third party to fulfill.