Legal Protection Of China Trademark Assets In M&A By Foreign Capital

In the field of contemporary international investment, cross-border M&A investment which is gradually replacing traditional methods becomes the most main forms of the contemporary international capital operation. After China’s accession to the WTO, foreign M&A is large happening in China. Foreign M&A is a double-edged sword. On the one hand, foreign M&A can bring a lot of money to Chinese enterprises, advanced technology and scientific management experience, to help Chinese enterprises achieve optimization and upgrading of industrial structure; on the other hand, because our country foreign M&A of assets related to trademark protection legislation, especialy for trademark assets evaluation lack of corresponding legal regulation and the system of value evaluation system and so on, also led to loss of trademark assets Chinese enterprises carefully nurtured and which contains the huge of value. Chinese enterprises how to protect their own trademark assets, having been seeking sustainable and healthy development of China’s economy has to face the problem.Based on this, the author through to the foreign M&A in China an analysis of the present situation of the Chinese trademark assets, combined with the foreign control of the assets of the Chinese trademark legal form and loss ways, summed up the legal origin of China trademark loss of assets, put forward from the state (principle control, perfection of legislation, law enforcement to strengthen) and enterprises (keep control, strengthening the consciousness of contract, to perfect the management system, etc.) two aspects to be addressed, in order to strengthen the protection of the trademark assets of foreign M&A from two aspects of the prevention and relief in China.This article is divided into four parts:The first part, On the basis of the essential feature of trademark, based on the departure from the social reality of the trademark assets of foreign M&A, draw the Chinese enterprises trademark assets loss of the negative effects on the national economic development.The second part, foreign M&A in China trademark assets loss way analysis. First introduced the legal form of the foreign control of the assets of the chinese trademark, main show is holdings, asset acquisition, capital and joint venture or acquisition three ways; Secondly, a systematic analysis of trademark assets loss of specific legal avenues, divided into four ways:trademark licensing model is not clear, the value assessment is improper, the trademark buried, to extend limit selling, and publicity.The third part, analyzed from a legal point of view, Chinese enterprises trademark under foreign control and ultimately, the deep-seated reasons for loss analysis can draw lessons. In the current our country foreign M&A of trademark protection legal norms are summarized based on assets, reveal problems existing in the current specifications, mainly for its defects:<the provisions on foreign investors M&A of domestic enterprises> as a departmental regulations defects such as low legislative effect, the program is not sound, about trademark assets transfer, licensing, and the provisions of the disclosure of information as the final benefits can not prevent trademark assets loss, only the state-owned brand assets have special protection, the anti-monopoly law on the brand assets is only indirect protection four aspects. Through these analysis, to find out the Chinese trademark asset protection method to lay the foundation.The fourth part, according to the analysis of the results, from the government and enterprise two aspects put forward the feasible measures to cope with the situation, a total of five:first, to "not have national economic core material injury" as a general principle of perfecting legislation and strengthening law enforcement. Second, perfect the corresponding legal norms, make the brand asset protection laws. The author thinks that can improve the examination and approval procedures for foreign M&A involving well-known trademark, clear trademark evaluation technology standard of centralized declaration for three aspects. The third is to intensify law enforcement and protect brand equity. Recommends using the anti-monopoly law regulation of foreign capital’s M&A, to strengthen the supervision of trademark assignment and licensing, strictly fulfill legal approval process. Fourth, foreign M&A in the future negotiations, pay attention to keep control of the enterprise. Fifth, the protection of independent brand equity in the contract. Shall specify the agreed trademark usage pattern, set up and use the default clause, the trademark right of repurchase agreement.