What are the specific issues that arise in my country’s trade name legislation
1. Issues regarding the legislative form of the trade name system
A trade name is a trademark used by commodity producers and traders to indicate that they are different from others. An exclusive name used in business due to its characteristics. It is not only an important symbol used by commercial entities for foreign exchanges, but also an important manifestation of the differences between different commercial entities. It is through the identification function of trade names that different commercial entities and their behaviors can be distinguished, so that commercial transactions can proceed in a normal and orderly manner. Therefore, in order to better regulate and adjust the use of trade names by commercial entities and strengthen the registration management of the acquisition and transfer of trade names, many countries in the world have specialized legal systems for trade names. my country's current laws still have many deficiencies in the protection of trade names.
my country's current trade name system is governed by the Civil Code ", "Company Law", "Anti-Unfair Competition Law" and "Enterprise Name Registration Management Regulations" (hereinafter referred to as "Enterprise Name Regulations"). Judging from the overall structure of my country's trade name legal system, the above provisions are still relatively rough and unsystematic. Except for the "Enterprise Name Regulations" which have more detailed provisions on the acquisition and use of trade names, the rest of the laws only mention trade names in individual articles and lack systematic and specialized provisions on the basic legal rules for trade names. Judging from the specific content of these legal provisions, there are still some gapsleaks and inconsistencies. There are no clear regulations on the principles that should be adhered to in the use and management of trade names, the evaluation and investment of trade names, and the non-competition after the transfer of trade names. This contradiction in legal provisions is bound to directly affect the coordination and implementation of the trade name system. In addition, although the enterprise name regulations are a major component of my country's current trade name system, they are only administrative regulations based on enterprise name management. Trade name regulations cannot become the core content of the law, nor is the legal protection of trade names mainly based on civil means. This situation is inconsistent with the world legislative trend of treating trade name rights as intellectual property rights, and also reflects the current status of my country's trade name legislation. Serious lag situation.
2. Issues related to the intellectual property attributes of trade name rights
A trade name is a commodity producer and operator for profit-making purposes A special name that is different from ordinary civil names is created and used. As a symbol of the credit status, business style and characteristics of commodity producers and operators, the use of a trade name can bring certain economic benefits to its owners. "In order to protect the owners of trade names from enjoying the property interests contained in their trade names, the "Protection of Trade Names" The Paris Convention on Industrial Property and the domestic laws of some countries include trade names as intellectual property rights." However, trade name rights as an independent intellectual property have not yet been proposed and established in my country's current laws.
Legal persons, individual industrial and commercial households, and individual partnerships have the right to Use and transfer your own name in accordance with the law. Judging from the attribute that the name can be "transferable according to law", the name should obviously refer to a business name, but it is classified as a personal right. This practice not only violates the classification standards of my country's civil rights system, but also easily leads to confusion between business names and general civil names. It is precisely because of this confusion that the nondescript term "right to exclusive use of corporate names" appears in the regulations on corporate names. concept.
The company name indicates the company’s registered place or operation The full name of the location, business name, industry, property liability form, organizational form and other characteristics. Here, it can truly reflect and display the production and operation of a commodity.The sign of a person's essential characteristics is his trade name. A company name without a trade name cannot distinguish different companies in the same industry in the same registration place. Any enterprise enjoys the exclusive right to use a trade name within its registered area and has the right to exclude other enterprises in the same industry from using a trade name that is similar to or similar to its own, but there is no problem of exclusive use of the enterprise name.
Trade name rights are commodities The exclusive rights that producers and operators enjoy in accordance with the law for their registered trade names have dual attributes of personal rights and property rights, and are intellectual property rights in terms of type of rights. The trade name right is inseparable from the person of the commodity producer and operator. It is the incarnation of the legal personality of the commodity producer and operator. It has stronger personality than trademark rights, patent rights, etc. As a symbol of an enterprise's operating capabilities and credit status, a trade name is
Trade name rights are an important part of an enterprise's intangible assets, and therefore have the attribute of property rights. This is also the fundamental difference between trade name rights and general civil name rights. Like other intellectual property rights, trade name rights also have strong exclusivity and exclusivity: the subject of the trade name right can prohibit other companies in the same industry from using the same or similar trade names within the geographical scope of the trade name registration. Anyone except the specific rights subject Neither shall illegally interfere with or hinder the holder of trade name rights from exercising their trade name rights, nor allow others to infringe upon their trade name rights. In addition, trade name rights have special characteristics that are different from other intellectual property rights. The analysis includes the following aspects:
1. No timeliness. The right to a trade name exists and dies together with the enterprise, and the existence of an enterprise has no time limit in the legislation and practice of various countries. Therefore, the right to a trade name is attached to the enterprise and is protected by law indefinitely.
2. The subject is single. A trade name is a symbol of the qualifications of a commercial subject, which is determined by its subject identification function. The same trade name can only be owned by one commodity producer and operator within the scope of approved registration, and there are no multiple commercial subjects. There is a common trade name right. The trade name of a head office can be used by several subsidiaries, but only the head office has the right to transfer the trade name, and the head office is the sole owner of the trade name.
3. The transfer of trade name rights has special characteristics. The performance is as follows: First, the trade name rights The transfer of the trade name right cannot be repeated and can only be transferred to one enterprise. This is determined by the single subject of the trade name right. Secondly, the transfer of the trade name right must be carried out together with the transfer of all the assets of the enterprise. Otherwise, there will be a transferor and a transferee. The competitive situation is unfair to the transferee. Thirdly, the transfer of trade name rights can only be carried out between enterprises in the same industry in the same registration area, which is determined by the scope of the exercise of trade name rights.
In short, only by clarifying the intellectual property attributes of trade name rights can we provide Trade names provide comprehensive and appropriate legal protection. Otherwise, it is not enough to protect the legitimate rights and interests of trade name owners, and is not conducive to the supervision and management of the use of trade names, and will affect the value orientation of law enforcers in operating specific legal regulations. Therefore, establishing trade name rights The attributes of intellectual property are one of the focuses in formulating and improving China's trade name legal system.
3. Issues regarding the constituent elements of a trade name
"The constituent elements of a trade name are the prerequisites for a trade name to have the exclusive right to become a trade name." In the legislative process of China's "Enterprise Name Regulations", it is based on our country's national conditions and also absorbs foreign trade name legislation. In some contents, it stipulates the positive requirements and prohibited requirements for the selection of trade names. Unfortunately, because the law fails to correctly define the legal attributes of trade name rights, there are still some defects in the regulations on the selection and use of trade names. Main reflections In the following aspects:
(1) Trade name and enterprise name.
"Enterprise Name Regulations" clearly stipulates that "the enterprise name shall consist of the following parts in order: trade name (or trade name), industry or business characteristics, organization Form" and give it the name of the administrative division where the enterprise is located. It can be seen that the trade name should be an indispensable and important part of the enterprise name. Only when the trade name is first determined can the enterprise name be established. Because among the elements of the enterprise name, only Trade names are optional, and other public names do not change according to the will of the company. Therefore, the company name regulations should clarify the conditions for choosing a trade name, but this law replaces it with "the conditions for choosing a company name" [3], thus diluting the The position of the trade name in the name of the enterprise is changed. What’s more, Article 10 of the law actually stipulates that “an enterprise can choose a trade name. "A trade name should consist of two or more characters" is contradictory to Article 7. Obviously, the requirement of "can" is to grant certain rights to the subject. Therefore, when an enterprise chooses a trade name, it is exercising its rights. If it does not choose a trade name, it will not It is well-founded in law. The "should" requirement is to limit the subject to perform certain obligations. The two are incompatible with each other. A company name that does not include a trade name cannot identify different companies in the same industry in the same registration place. The choice of trade name should be the core link in establishing the company name.
(2) Business name selection and business culture.
"As an image representation of the business entity, a trade name is also an integral part of the commercial culture in a society. "It can reflect the political and economic characteristics, customs, fashions and national mentality of an era from the perspective of commercial culture. Only by grasping this point in the legal system of trade names on the requirements for choosing trade names can we promote the development of commercial culture. "Company Name The Regulations stipulate five requirements for prohibiting the selection of trade names, such as "It shall not harm the public interests of the country and society"; "It shall not cause deception or misunderstanding to the public"; "It is prohibited to use the names of foreign countries or regions and international organizations. "It is prohibited to use the names of political parties, party, government, and military organs, mass organizations, social groups, and military unit numbers.": "Except for Chinese names, Chinese pinyin letters and numbers are not allowed to be used as business names." The above regulations fail to reflect the close connection between business names, customs, fashions and national mentality, which cannot but be said to be a shortcoming.
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