In the modern civil and commercial legal disciplines, trade name rights have gradually transcended the scope of commercial law and become the focus of intellectual property law. It should be said that this change has its positive significance, but if this change is carried out without any effective argument on the nature of the trade name right, then this change is likely to become a problem in commercial law and intellectual property law. Another way of saying “fighting for territory”. Therefore, a serious and detailed investigation of the trade name right itself is the first thing we need to do.
1. Overview of trade names and trade name rights
Trade names, also known as Commercial name, commercial name, and personal manufacturer name, [1] refer to the name used by a business entity to distinguish itself from other business entities when engaging in commercial activities. It is one of the symbols in the market entity identification system. In nature, a trade name is a type of distinctive mark. Like other commercial marks such as trademarks and geographical indications, it is "widely used on goods or their packaging materials and various advertising media. It plays a role in distinguishing commodity producers and their goods or services, and carries the commercial reputation enjoyed by the merchants." Function.” [2] In my country’s civil and commercial law theory and current law, the definition of trade name is not uniform. In the "General Principles of the Civil Law", the commercial names of individual industrial and commercial households and individual partnerships are called "trade names", while in the "Provisions on the Registration and Management of Enterprise Names", the names of industrial and commercial enterprises are called "enterprise names", and in Article 7 of the regulations, Equivalent of "font size" to "trade name". However, most scholars start from the traditional commercial law conceptual system and refer to the names of the above-mentioned various market entities as "trade names".
Trade name, as a name used by market entities when engaging in commercial activities, has the following legal characteristics: First, a trade name is just a name, it is not a right in itself The bearer of obligations; secondly, a trade name is a name used by a business subject to represent itself. It is attached to the business subject and is an important external sign that distinguishes the business subjects from each other; [3] This can be regarded as its personality, and with the same Trademarks that are identifying marks have very weak personality. Third, the trade name isThe transfer must be carried out together with the business entity. Countries generally prohibit the separation of the trade name from the business entity and transfer it separately. This is also a major difference between it and the trademark; in addition, the trade name of the business entity is unique, but an enterprise can own multiple trademark.
Trade name rights refer to the exclusive rights that business entities have over their trade names in accordance with the law, that is, the business entities have the right to set, use and transfer the trade name. rights and other rights. Among them, the right to set up means that the trade name owner has the right to independently determine his or her trade name; the right to use means that the business entity has the exclusive right to use its trade name, and no one else is allowed to interfere or use it illegally; the right to transfer means that the business entity can use it illegally Its business entity is transferred together with its trade name to obtain material benefits, but this transfer must be carried out together with the transfer of the business entity and cannot be transferred separately [4]; the right to use the license means that the owner of the trade name can license his trade name according to the agreement. Three people use it within a specific scope and charge a certain usage fee. Generally speaking, in order to protect the interests of the third party, this usage contract should be in writing and be effective after being registered by the registration authority.
2. Property rights or personality rights - consideration of different interests
As for how to define the nature of trade name rights, there is no unified academic view. To sum up, the main views are as follows:
(1) Property rights theory
Because the right to trade name includes the right to transfer the trade name and the right to license the use of the trade name, and the exercise of these two rights will undoubtedly obtain property benefits. Therefore, the name of a trade name is not the personality of the business entity, so it does not belong to the category of personality rights but to the category of property rights, which is a type of property right.(2) Theory of personality rights
This view holds that the objects of name rights are legal persons and The names of the personal interests of individual industrial and commercial households are a necessary condition for distinguishing them from each other. Secondly, the right to name has all the characteristics of personality rights and is an inherent, exclusive and necessary right. Thirdly, the name right has certain attributes of intangible property rights, but this is an accessory rather than an essential attribute. [6] Therefore, the right to name (right to trade name) is a personality right.
(3) The theory of dual nature rights
This view holds that the right to a trade name is both a personal right and It is also a property right. The right to trade name is closely related to the commercial subject itself and is part of the property of the commercial subject. [7] On the one hand, forFor legal persons and other subjects with independent personality, having their own name is the inevitable conclusion of their civil subject qualifications. Even for those social organizations that do not have the ability to have rights, they must enjoy the right to name if they want to engage in civil activities in the name of a group. . On the other hand, name rights also possess the attributes of property rights, in which the transfer and licensing rights of names can be completely regarded as the subject of property rights. Since the name has no fixed form, it is so-called intangible property. [8]
(4) The viewpoint of this article
The author believes that if we want to analyze the rights of trade names, To understand the nature of trade name rights, we must first understand the specific content of trade name rights. "Explanation through understanding" [9] may be an appropriate analytical approach. If every part of the specific content of the trade name right shows the attributes of property interests or personality interests, it means that it belongs to property rights or personality rights; otherwise, the conclusion cannot be easily drawn. As mentioned above, the content of trade name rights specifically includes the right to set up a trade name, the right to use the trade name, the right to transfer the trade name and the right to license the use of the trade name. As far as the right to establish a trade name is concerned, the business entity can choose a name at will within the scope of the law according to its own will, and others are not allowed to interfere. This is obviously an external manifestation of the personality interests of the operator. It can even be said that setting a business name is like a natural person naming himself. It can be seen that the establishment of a business name has strong personal interests for the business entity, but does not have any direct property interests. Therefore, the right to establish a business name is a kind of personality right. As for the right to use a trade name, on the one hand, it means that the trade name owner has the right to actively use the registered trade name. For example, it can use its trade name on its products, seals, bank accounts and letterheads, and can also use it in advertisements. or use its trade name in other external interactions; on the other hand, the trade name owner has the right to prohibit others from using its trade name in market transactions in a manner that is misleading. In the final analysis, these two rights are inseparable from the trade name owner himself, and it is impossible for anyone else to exercise any part of these two rights, which also highlights the nature of his personality rights. As far as the right to transfer a trade name is concerned, it undoubtedly has direct property interests, especially time-honored brands, old trade names, famous brand enterprises, etc., which will inevitably bring huge economic benefits due to their good efficiency and high reputation, which will also make their trade names have higher economic value. However, when it comes to the transfer of trade names, most countries adhere to the principle of transferring the trade name rights together with the business entity, or stipulate that the transfer occurs when the enterprise terminates. After the trade name rights are transferred, the transferor no longer enjoys the trade name rights, and the transferee no longer enjoys the trade name rights. It becomes a new subject of rights. For example, the "Japanese Commercial Code" has similar provisions. [10] This kind of integrationism in transfer shows that the transfer of a trade name is still based on the non-separation of the trade name and its business, because the trade name, as the business name of the merchant, also has social and economic functions. is a specific businessman, [11] which shows that even with strong property rights attributesThe right to transfer a trade name is also based on the business entity’s personal interests in its trade name. As for the licensing right to use a trade name, it means that the trade name owner licenses the use of his trade name to others through a written agreement, and the licensee invests and operates independently in accordance with the provisions of the contract, and pays corresponding fees to the licensor. It can be seen that the license to use a business name has strong property attributes. However, it should still be noted that the right to use the license is still based on the exclusive personal right of the trade name owner to the trade name.
It can be seen from the above analysis that among the specific contents of trade name rights, only the right to transfer and license the right to use the trade name have property attributes, but they still need to be registered as trade names. The right owner's personal interests in the trade name are the basis. In this case, can we conclude that the nature of trade name rights is property rights? In fact, there are many rights in the civil rights system that are personality rights in nature but have property attributes. The most obvious one is the right of portrait, which is a kind of personality right enjoyed by natural persons with personal interests reflected in their own portraits as the content. However, natural persons can obtain material benefits by using their own portraits, such as using their portraits. For the production of advertisements, etc., it is obvious that this kind of portrait right also embodies certain property attributes, but we can never say that it is a property right. In addition, the right to privacy is also a personality right, but the privacy owner can legally use his privacy to obtain property interests. For example, natural persons have the right to use their special life experiences as material for literary and dramatic creations, and they also have the right to use their own physiological characteristics for shooting advertisements and producing photographic works, etc. But we can never say that the nature of the right to privacy is a property right. Therefore, if you want to characterize a right, you must not focus on one point and ignore the rest, but you should look at its most basic attributes. As far as trade name rights are concerned, its specific content obviously includes the element of property, but at the same time it also contains extremely strong factors of personality rights. Therefore, property is not its basic and only attribute. Therefore, the nature of trade name rights is It is not very reasonable to identify it as property rights.
So, is the right to a trade name a right of dual nature? The author believes that the formulation of this proposition is logically wrong. The right to a trade name is a right that contains several specific contents. If the right to a trade name is said to be dual in nature, it means that every specific right in the right to a trade name has a dual nature. Otherwise, this statement will not be consistent with the actual situation. The previous analysis has shown that the right to establish and use a trade name only has the nature of personality rights, while the right to transfer and the right to license transfer have the nature of property rights on the basis of personality interests. Therefore, the right to trade name is characterized as dual nature. Rights are obviously subject to logical inconsistencies.
If the market economy is not very developed, the author is inclined to define the nature of the trade name right as a personality right, because even if the right to transfer the trade name and the right to license the use can be obtainedIt is a considerable property benefit, but it is also based on the business entity’s personal interests in the company. However, under today's developed market economy conditions, trade names can indeed bring huge economic benefits to operators, especially well-known firms with high visibility. The property benefits it brings to operators have been ignored to some extent. It has its most basic personality attributes, so it may be more appropriate to define the nature of trade name rights as "hybrid rights". Mixedness means that the nature of the specific content of the right is different from each other, so it is mixed together. This formulation can avoid the mistakes made by "rights of dual nature". But at the same time, it needs to be emphasized that when discussing the nature of trade name rights, it is best not to use vague terms such as "hybrid rights", but should try to discuss the nature of a specific right such as the right to use a trade name. .
3. Intellectual property rights or other rights - observations from different angles
The origin of trade name rights is undoubtedly closely linked to the development of the commodity economy. It was originally given only to facilitate transactions.
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