On The Protection Of Trademark "Later Forming Goodwill" Creator’s Rights And Interests

In recent years, the "Wanglaoji" trademark dispute of Guangzhou Pharmaceutical Group V. JDB and the "iPad" trademark dispute of Apple Inc V. Shenzhen Proview company have caused widespread concerns in business community and legal circles. We’ve found that, what they have in common is that they both separate the actual right to use of a registered trademark between the trademark holder and the goodwill creator, and the goodwill creator finally maximizes the value of such registered trademark.According to the trademark licensing system specified in the Trademark Law of China, the holder (or "licensor") of the trademark is entitled to the registered trademark, the licensee is licensed with limited right to use the trademark, and the trademark naturally returns to the holder upon the expiry of license term, likewise, the goodwill appreciation of the licensed trademark generated from the heavy investment made by the licensee, namely trademark "later forming goodwill" creator, within the license term shall return to the holder. The discussions thus initiated are that, after such trademark rights are returned to the holder whether the rights and interests of the "later forming goodwill" creator shall be protected and how to do so. Theory and practice circles have different voices. Therefore, how to balance relevant interests between the holder of trademark and "the later forming goodwill" creator through legislation to achieve win-win situation is in urgent practical need.The author agrees with the viewpoint that the interests of the "later forming goodwill" creator shall be protected. The main idea of this paper is expounding aforesaid viewpoint from the cases, then exploring the necessity of the protection of the "later forming goodwill" creator’s rights and interests from perspectives of trademark business value and trademark market order, then exploring the feasibility of the protection of the "later forming goodwill" creator’s rights and interests from perspectives of trademark license contract and inheritance advertisement, and raising structural proposals to solve the problem of protection of the "later forming goodwill" creator’s rights and interests from said two perspectives. Details are as follows:The topic that the rights and interests of the "later forming goodwill" creator shall be protected is raised in the introduction from trademark disputes of "Wanglaoji" and "iPad", and the value and significance of research and the impact of non-implementation of protection are set out as well. The research status quo of protection of the "later forming goodwill" creator’s rights and interests is briefly introduced in the literature review, different views and opinions are introduced, and finally it points out that the protection of rights and interests of the "later forming goodwill" creator is a feasible approach from perspectives of trademark license contract and inheritance advertisement.Chapter I is mainly expanded from the basic concepts involved in the protection of the "later forming goodwill" creator’s rights and interests, providing theoretical basis for the entire paper. This chapter focuses on the basic connotation of goodwill and "later forming goodwill" and the connotation of rights and interests of the "later forming goodwill" creator.Chapter II expounds the necessity of protection of the "later forming goodwill" creator’s rights and interests on legal principle, and the analysis is respectively carried out from two aspects of trademark business value and trademark market order.Chapter III expounds the feasibility of protection of the "later forming goodwill" creator’s rights and interests on legal principle. Firstly, the status quo of "later forming goodwill" protection and dissertations and problems existing in theoretical circles are analyzed. Secondly, the feasibility of protection of the "later forming goodwill" creator’s rights and interests is intensively discussed, and the analysis is mainly made in aspects of trademark license contract and inheritance advertisement.Chapter IV is in respect of the structural proposals upon the protection of the "later forming goodwill" creator’s rights and interests. It divides into two parts. The first part is to improve the legislation of Trademark Law; add clauses for the goodwill and goodwill protection, and creat Priority Permit System; The second part is to improve the system of inheritance advertisement, in order to better protect the "later forming goodwill" creator’s rights and interests.The conclusion comes last, which points out that,under market economy conditions the trademark license system is increasingly important as a way for the market participants to improve their competitiveness. Within the existing legal framework, the "later forming goodwill" creator may bind the trademark holder by concluding the trademark license contract, in order to protect their legitimate rights and interests. The "later forming goodwill" creator may also go to solve the Protection of Trademark "Later Forming Goodwill" Creator’s Rights and Interests from inheritance advertisement. The author hopes that when the Trademark Law is modified, the contribution of the licensee to "later forming goodwill" will be taken into full account and relevant provisions will be added to protect rights and interests of the "later forming goodwill" creator in order to facilitate final resolution of problems relating to the protection of the "later forming goodwill" creator’s rights and interests. And further improvement in practice inheritance advertisement system.