1. Definition and content of trade name rights
Trade name is the manufacturer’s trade name, or business name name. As a specific symbol of an enterprise, a trade name is an expression of the legal personality of the enterprise. After the trade name is approved and registered, it can be used in plaques, contracts, product packaging, etc. Its exclusive right to use is not time-sensitive and will only be terminated when the manufacturer to which it is attached dies. In some manufacturers, certain words and graphics are both trade names and trademarks. But for most manufacturers, trade names and trademarks are different. Generally speaking, a trademark must exist in connection with the specific goods to which it is attached, while a trade name must exist in connection with the specific manufacturer that produces or operates the goods.
Although our country's laws do not clearly provide for trade name rights, the "General Principles of Civil Law" has specific provisions on the protection of corporate name rights. The right to a trade name has the attribute of personal rights, which is closely related to the personality and identity of a specific commercial subject, and will live and die together with the subject's qualifications. It has the attribute of spiritual property rights. According to international practice, the exclusivity and exclusiveness of trade name rights are confirmed. Trade name rights holders may use their trade names in accordance with the law, and have the right to prohibit others from repeating registration or unauthorized use or misappropriation of their trade names, and have the right to file lawsuits for compensation for infringement of their trade name rights. Regarding the transfer of trade name rights, the laws of various countries have different regulations. The provisions of the General Principles of Civil Law in my country are similar to the provisions of French law: it is allowed to buy, sell, license to use or set as a mortgage a trade name.
The contents of trade name rights include:
1. The right to use, that is, the owner of the trade name can independently use its trade name.
2. Right of prohibition, prohibiting others from registering a trade name that is the same as or similar to its trade name; prohibiting others from using its trade name without authorization.
3. Right of transfer: the owner of the trade name has the right to transfer his trade name to others for use in accordance with the law.
4. Permission to use, the owner of the trade name has the right to allow others to use his trade name. Through the theoretical analysis of the nature and content of trade name rights, it is not difficult for us toThe right to a trade name has the characteristics of intellectual property, and the right to a trade name is an intangible property right.
2. Defects in the protection of trade name rights in my country
(1) The legal positioning of trade name rights is inaccurate
From the discussion on the nature of trade names in the first part, it can be seen that my country's "Basic Civil Law" stipulates that trade name rights are a type of personal rights. Our country's laws on the protection of trade name rights are only limited to the protection of personal rights and do not extend to the protection of property rights. There are no specific provisions on the protection of intellectual property rights." Our country's law positions trade name rights on personal rights, which can be said to be inaccurate. In addition, the protection of trade name rights in my country is generally attached to the protection of corporate names, which also needs to be further improved.
(2) Lack of a special legal norm
Involving trade name rights in our country’s legal system The relevant provisions are mainly reflected in the "General Principles of Civil Law", "Regulations on the Registration and Management of Enterprise Legal Persons", "Company Law", "Anti-Unfair Competition Law", "Consumer Rights and Interests Protection Law", "Product Quality Law", "Company Registration Management" Regulations", "Regulations on the Recognition and Protection of Well-known Trademarks", "Regulations on the Registration and Management of Enterprise Names", "Opinions on Solving Certain Issues in Trademarks and Enterprise Names", "Trademark Law", "Trademark Law Implementing Rules", "Supreme People's Court" Provisions on Several Issues Concerning the Trial of Civil Disputes Cases Conflicting between Registered Trademarks, Business Names and Prior Rights. It can be seen that my country's legislation on trade name rights mainly adopts a multi-pronged model of civil law, specialized laws and judicial interpretation legislation, which is relatively fragmented and brings great inconvenience to judicial practice. Moreover, the core legislation regarding trade name rights is at a low level and is not very effective.
(3) The management system of "same industry, hierarchical registration" limits the scope of protection of trade name rights
Article 4 of China's "Enterprise Name Registration and Management Regulations": "The registration authority for enterprise names is the State Administration for Industry and Commerce and local industrial and commercial administration bureaus at all levels. The registration authority approves or rejects enterprise name registration applications, supervises and manages The use of enterprise names protects the exclusive rights of enterprise names. The registration authority implements hierarchical registration management of enterprise names in accordance with the "Regulations of the People's Republic of China on the Registration and Management of Enterprise Legal Persons." It can be seen that, in addition to the names registered by the State Administration of Administration, they are valid nationwide In addition, names registered with other local industrial and commercial administration bureaus at all levels are only valid in the place of registration. With the development of market economy, my country's "market" is no longer limited to a certain range. It is open to the whole country and even the whole world.Although there is an open market all over the world, the management system of "same industry, hierarchical registration" tightly restricts the right of a certain trade name to a certain administrative division, which is inconsistent with the system of my country's market economy.
(4) Lack of remedies for conflict of rights
Due to imperfect legislation in our country and other reasons, This has resulted in constant conflicts between trade names and trademarks, trade names and Internet domain names, and trade names and corporate names. In addition, my country's provisions on remedies for conflicts between trade names and related rights are quite lacking. They are only stipulated in the "Opinions on Solving Several Issues in Trademarks and Business Names" formulated by the State Administration for Industry and Commerce, and their content only involves unfair competition. The identification of behavior is the basis for administrative law enforcement by administrative agencies and has not yet risen to the legal level, so it does not have universal enforcement effect. The imperfection of legislation and the lack of relief channels will inevitably damage the legitimate rights and interests of citizens and affect the normal social order.
However, there are many problems with the protection of trade name rights in practice due to shortcomings in my country's existing legislation and theory regarding trade name rights.
Therefore, although there are no clear legal provisions on the right to trade names in our country, the "General Principles of Civil Law" has relatively clear provisions on the right to corporate names. In addition, trade name rights are an important part of intellectual property rights, so trade name rights will be protected by our country's laws. Moreover, my country’s relevant laws lack clear provisions on the protection period of trade name rights. If your situation is more complex, the Legal Savior Network also provides online lawyer consultation services. You are welcome to seek legal consultation.
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