A Research On Quality Supervision Duty Of Trademark Licensor

With the continuous development of capitalism, trademarks are becoming an effective competitive mean of market corpus. There are three basic function in trademarks, recognition function, quality guarantee functions and advertisement function. In the process of trademark licensing, the quality supervision duty of trademark licensor have been formulated in trademark law. Quality supervision duty under the law is to ensure quality assurance function to be achieved. This article focuses on: firstly, analyzes legal nature and the sources of quality supervision duty of trademark licensor, and combines the history of quality supervision duty, tries to analyze the historical reason of quality supervision duty from the dynamic changes of trademark licensing. secondly, analyzes the theoretical basis of quality supervision duty, and analyzes the reason quality supervision duty formulated in law from quality assurance function of trademarks, legislative purpose of consumer protection, responsibility for product quality of trademark licensor. thirdly, arrange the statutes and case law of the US about the provisions of the quality supervision duty of trademark owner, review the trademark system of China. The revised Trademark Law has been deleted the provision that Trademark Office has the power to revoke trademark right. Based on the reference to the practices of the US and combines with the circumstances of trademark system in China, Trademark Law should increase that if trademark owner fail to supervise the quality of the goods, interested parties have the right to request Trademark Office to revoke the trademark right.This article analyzes in the following methodology: analyzes the historical development of quality supervision duty, from the legislative purpose of trademark law and anti-unfair competition law, emphatically summarizes and compared with the theory of quality supervision and case law, arranges the transformation about the US’s attitude to quality supervision and way of quality supervision, supervision level, standard of proof and the latest trends, and concludes that our country should not put quality supervision on the shelf, but should improve it to perfect China’s trademark license system.The first part of this article summarizes the trademark license and quality supervision duty. From the perspective of ontology, analyses the concept of quality supervision duty, sources and legal nature, concludes that the quality supervision duty is derived from the quality assurance function, it is a kind of legal obligation. The second part analyzes the history of quality supervision from absolutely forbidden to embryonic development, to the now begin to silence. In the middle ages, subject to the intervention of the guild and the reality of the social production, trademark license is strictly prohibited. Along with the social production got scales as well as the guild control weakened, trademark license began to bud, and bring the quality supervision system; up to now, trademark rights gradually become property rights. The third part summarizes the theoretical foundation of the quality supervision duty from the quality assurance function of trademark, legislation purpose, consumer interests. Quality supervision is one of the way of realizing quality assurance function; Consumers receipt the final result of the market, in order to ensure that consumers choose and buy qualified products, legal obligations stipulated quality supervision; trademark holder need compensation liability, as a result of quality supervision duty do not perform the obligations. The fourth part analyzes the censure of quality supervision duty. The quality assurance function is not a real function of trademark, has no true theoretical basis. In addition, the real aim of the quality supervision is to guarantee control of the trademark holder. The fifth part summarizes the theories and practices of quality supervision duty in the US. Lastly, points out China’s trademark law lack of the quality supervision duty. Combined with the practice, recognize the situation of performing quality supervision duty, and put forward if trademark holders fail to perform the duty, legal consequences is right of defense and the invalidation claim of the interested party.