Perfection Of Theoretical Logic And Institutional Trademark Transfer

Since our country adopts the "registration+absolute freedom" trademark assignment mode, it objectively contributes to trademark storage, resulting in a large number of registered trademark and the commodity market separation, wasting limited trademarks, and administrative resources, affect the trademark system to normal operation. In the primary sense, the basic of trademark assignment undoubtedly stems from its property——goodwill, which achieves due to trademark use, trademark assignment provided that the trade mark has been actually used, therefore unused registered trade mark cannot be transferred. This assertion can be proven from the principle of trademark symbol, the labor theory of property rights and registration system of value principle. In trademarks cross-class assignment issues, because goodwill is commercialization, product or service doesn’t exist, the consumer is the goodwill itself, cross-class assignment does not violate the basic of trademark assignment. Goodwill must be attached to the trademark, the trade mark together with the assignment of goodwill, in itself, contrary to the logic of language, will eventually be converted into requirements together with the assignment of business or allowing free trademark assignment. But along with the business assignment does not necessarily guarantee the realization of goodwill continuity, and also hinder the trademark property value into full play, thus free assignment model is more in line with the developing trend in the world. According to the needs of economic development, trademark assignment system should continually adhere to the spirit of free assignment, and should choose "conditional assignment of freedom" mode,"conditional" is to require the assignment of trademark right provided that the trade mark had to been through actual use.At the same time, basic function of trademarks is to identify and distinguish the source of goods or services, whereas the assignment of trademark rights means that its identity is not the original source, which is bound to have an impact on consumer interest. In recent years, the frequent outbreak of "imitating foreign trademarks" also confirm this. From another perspective, trademark assignment undoubtedly stem from its social attributes——on consumers’reasonable expectations of maintenance. Although China has quality guarantee obligation of the assignee, it’s actually a misreading of the quality guarantee function. Quality guarantee function is not a duty and institutional tool, but acquired market incentives of maintaining product quality and stability by using the trademark and laws pursue the specific value to maintain consumers’basic interests. Therefore, one of the tasks of trademark assignment system is to design specific, operational supporting measures, which promotes quality assurance function to achieve with quality guarantee as the value goal. However, quality guarantee obligation in our legislation violating the operation mechanism of the trademark system, should be deleted. As the pursuing value of law, quality guarantee function in trademark assignment must be achieved by strengthening information disclosure system as well as multiple internal and external coordination mechanism.