What is the legislative form of the trade name system
Trade names are used by commodity producers and operators 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. For example, Germany, in addition to stipulating the basic rules for trade names in the Commercial Code, has also made corresponding specific provisions for different forms of trade names in company law, joint stock law, cooperative law and other laws. Japan also has a special chapter on trade names in the "Commercial Code", while Sweden, the Netherlands and other countries have formulated special "Special Laws on 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 omissions and contradictions. Regarding the principles that should be adhered to in the use and management of trade names, the evaluation and investment of trade names, and theThere are no clear regulations on issues such as non-competition after the transfer of the number. The "General Principles of the Civil Law" situates the name rights enjoyed by commodity producers and operators as personal rights. According to this, there is no need to register a trade name, but the "Enterprise Name Regulations" have mandatory provisions that enterprise names can only be used after they have been approved and registered. , obviously the trade name, which is one of the elements of the company name, is also registered. 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.
my country's trade name legal system should be based on the Civil Code It is a coordinated and unified legal protection system for trade names based on it, with the Business Name Law as the core, and the Company Law, Anti-Unfair Competition Law, etc. as supplements. To this end, it is necessary to delete outdated provisions in the current legislation, follow the basic laws of market economy, and formulate a business name law with trade names as the core as soon as possible to create an equal and unified competitive environment for different commodity producers and operators.
Issues about the intellectual property attributes of trade name rights
Trade name is a special name created and used by commodity producers and traders for profit-making purposes, which is different from general civil names. 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.
The company name is the full name that indicates the company's registered place or place of business, trade name, industry, property liability form, organizational form and other characteristics. Here, it can truly reflect and display a product The essential characteristic of a producer and operator is his trade name. An enterprise name without a trade name cannot distinguish different enterprises in the same industry in the same registration area. Any enterprise enjoys the exclusive right to use a trade name in its registration area and has the right to exclude other enterprises from the same industry. Other companies in the industry use trade names that are similar or similar to ours, but there is no problem of using a company name exclusively. For example, in the company name "Beijing Abess Advertising Co., Ltd.", "Beijing" is the company's registered place, and "Beijing" is the company's registered place. "Abbes" is a trade name, "Advertisement" is an industry characteristic, and "Limited Company" indicates the investor's property liability for the company's debts and the organizational form chosen by the company. The company only has exclusive rights to the trade name "Abes" However, names other than trade names are in the public domain and cannot be used exclusively by any company, so companies do not have exclusive rights to them.
Trade name rights are the exclusive rights enjoyed by commodity producers and traders in accordance with the law over their registered trade names. Its content has the dual attributes of personal rights and property rights. The type of rights belongs to intellectual property rights. Trade name rights are inseparable from the person of the commodity producer and operator, and are the incarnation of the legal personality of the commodity producer and operator. Compared with trademark rights, patent rights, etc., the trade name has stronger personality. As an enterprise's operating ability, Symbols of credit status, etc., are an important part of an enterprise's intangible assets. Therefore, trade name rights 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 exclusion Otherness and exclusivity: The subject of trade name rights can prohibit other enterprises in the same industry from using the same or similar trade names within the geographical scope of trade name registration. No one other than the subject of specific rights may illegally interfere with and hinder the trade name owner from exercising trade name rights. Others are not allowed to infringe on 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. There is no timeliness. The right to trade name exists and dies together with the enterprise, and the existence of the enterprise has no time limit in the legislation and practice of various countries. Therefore, the right to trade name is attached to the enterprise and protected by law indefinitely.
2. The subject is single. A trade name is a representation of the qualifications of a commercial subject and is determined by its subject identification function. The same trade name can only produce one commodity within the approved registration scope. It is owned by the operator, and there is no situation where multiple commercial entities share the right to a trade name. 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 owner of the trade name. Sole owner.
3. Transfer of trade name rights It has special characteristics. The following are the following: first, the transfer of trade name rights cannot be repeated and can only be transferred to one enterprise. This is determined by the single subject of the trade name right; second, the transfer of trade name rights must be together with the transfer of all the assets of the enterprise. and be carried out, otherwise there will be competition between the transferor and the transferee, which is unfair to the transferee. Third, the transfer of trade name rights can only be carried out between enterprises in the same industry in the same registration area. This is determined by the trade name determined by the scope of exercise of the right.
In short, Only by clarifying the intellectual property attributes of trade name rights can we provide comprehensive and appropriate legal protection for trade names. Otherwise, it will not be enough to protect the legitimate rights and interests of trade name owners, and will not be conducive to the supervision and management of the use of trade names, and will affect the specific operations of law enforcers. The value orientation of legal norms. Therefore, establishing the intellectual property attributes of trade name rights is one of the focuses of formulating and improving China’s trade name legal system.
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