Remedies For The Prior Exclusive Licensee Under Dual Trademark Licensing

At present,intellectual property is becoming one of the important production factors.Only by implementing it and widely applying it can intellectual property be transformed into real productivity,maximizing its role to bring positive social effects such as improving the accumulation and utilization of the overall knowledge,thus promoting scientific development and cultural progress.The same applies to the exclusive right to use a registered trademark(hereinafter referred to as the trademark right).In order to rationalize the allocation of resources in the field of production and circulation to the maximum efficiency,the trademark owner not only use the registered trademark directly on his own goods and services,but also assign the license to expand the use of trademarks and increase the visibility of trademarks.Due to the non-material nature of intellectual property,the object and material carrier can be separated from each other.As one of the typical intellectual property rights,the trademark right also has such characteristics,which provides the possibility for the trademark owner to assign a lot of licenses with the same content.Under the stimulus of maximizing profits,right holders intentionally or unintentionally violate the principle of good faith.When the trademark owner assigns an exclusive license,then he sign and a license contract with a third partythat regulates the same right at the same time and the same geographical scope.In this case,there will be certain conflicts of interest between the licensees.The current research on trademark licensing focuses on the construction of licensing contracts,or on the litigation status of licensees,especially ordinary licensees,against third-party infringements.How can an exclusive licensee get remedies in the case of dual licensing? The article starts from this issue.The first chapter analyzes the cases related to the dual licensing of trademarks,classifying the litigation claims of the prior exclusive licensee and the reasoning for the judgment about the views of judicial practice.The second chapter is to clarify the legal basis of trademark licensing,that is,the evolution of trademark function and the nature of trademark rights,including the specificity of its active dominance and negative exclusivity.The third chapter begins with the current theories about the nature of the license to use the trademark.According to the Hohfeld ’s rights theory,the right obtained by the licensee through the license contract does not have the effectiveness against third-party interference.The regulation in current judicial interpretation which distinct the litigation status of different licensees is based on the theory of the right to appeal.The fourth chapter is mainly based on the above analysis and related theories and cases to judge the effectiveness of the post-licensing contract,including whether it constitutes unauthorized disposition,whether it is a malicious collusion,etc.