Intellectual Property Ownership And Control Of The Later Forming Goodwill

The Wong Lo Kat trademark dispute between the JDB Group and the GuangzhouWanglaoji Pharmaceutical Co., Ltd, and the "iPad" trademark dispute between Applecompany and Proview, have aroused people’s strong concern and widespreadcontroversy, especially the intellectual property law experts and stakeholders. Andthus leads to a series of issues: With the parting of the holders of registeredtrademarks and goodwill creator, can the trademarks and goodwill be separating? Ifcan, who will owns the intellectual property of the goodwill created by using thetrademark afterwards? How to protect the interests of the users of the trademark?What is the nature of trademark protection? What defects does it has of obtainingtrademark rights by registering, and so on. This article will describ these by thefollowing the two cases.In addition to the introduction, the article is made up of four parts:Section one is case description, first, it put forward the question about theintellectual property related to the "later forming goodwill" which are licensed to useby the “Wong Lo Kat” trademark dispute. Second, it put forward the question aboutthe intellectual property relate to the "later forming goodwill" which are not licensedto use by “ipad” trademark dispute.Section two is talking about the legal dispute relate to the two cases. First, theauthor summarized about the "later forming goodwill"—which are related to the twocases. Second, the author elaborates the focus of dispute of the two cases, whichinclude the fellows: is the action that "JDB" transplanting "Wong Lo Kat" Goodwilllegitimate? Should the intellectual property related to the "later forming goodwill" allbelongs to the registrants? Do the "JDB" has the right of packaging or decorationpeculiar to well-know goods to the red decoration of herbal tea can which claimed bythe Wanglaoji Pharmaceutical Co., Ltd? Do the registrants has the rights to theregistered trademarks which unused for three consecutive years? How to balance the “registration based” and “use based”?Section three is analysis and discussion. The author discusses the "later forminggoodwill" which is related to the two cases via three parts. Part one is to discuss therelationship about the trademarks and goodwill. First, the author analysis whether thetrademarks and goodwill can be divided from the perspective of protecting trademark.Second is to discuss the protection of registered trademark "Wong Lo Kat" and “reddecoration of herbal tea can” packaging or decoration peculiar to well-know goods,from the aspect of the protection to the registered trademarks and the non-registeredtrademarks via existing laws. Part two is the problem of trademark and trademark use.The main contents include: How to solve different jurisdictions trademark regionalconflict; How to balance the “Registration based” and “use based” Part three is todiscuss how to solve the problem that the holders of registered trademarks andgoodwill creator is separated.Section four is conclusions and implications. From the analysis and discussion tothe two cases, the author concluded that: in the case of "Wong Lo Kat" trademarkdispute, the intellectual property rights(red tank peculiar to well packaging, decoration,design and so on) which created by the "JDB" using the "Wong Lo Kat" trademarkafterwards should belong to the "JDB", and "JDB" has the right to remove it to it’sown product; In the case of the "ipad" trademark dispute, the goodwill whichcreated by the Apple company using the "ipad" trademark afterwards should belong tothe Apple company if not consider the agreement settlement by the two sides, as wellas the trademark transfer contract flaws. This is consistent with the principle of thevalue of labor and business ethics, and more conducive to the protection of thelegitimate rights and interests of consumers.Finally, the author emphasized again that intellectual property rightscorresponding to the using the trademark afterwards should belong to the goodwillcreator. The nature of the protection to the trademark rights is the protection to thetrademark goodwill. Trademark is just one of the carriers of the goodwill. Trademarksand goodwill can separate objectively and relatively. The trademark obtained byregistering is just formal, Only through the using, a trademark is the real meaning of trademarks, and have real trademark. Therefore, we conclude that: china’s trademarklaw should be clear that the trademark will have value only by using, and strength theprotection to the trademark user, safeguard the interests of the trademark users andensure the balance to the interests of the holders of registered trademarks and thegoodwill creators; China’s trademark law should improve the trademark rightacquisition system by registering. In addition, in the process of developing the brandstrategy, the enterprises should pay more attention to the importance of its own brand,and strive to form a set of product operation system.