What should be paid attention to in trademark transfer contract? The trademark right transfer contract is the behavior of the trademark owner to transfer his registered trademark to others according to law. The trademark owner is the transferor and the other party is the transferee. The transferee obtains the trademark right and pays a certain price. The original trademark owner no longer enjoys the trademark right. The trademark transfer contract can be grasped from two aspects: signing and performance, in which the restrictions on the transferee's subject qualification should be paid attention to when signing the trademark transfer contract; The trademark transfer contract is based on the premise of not causing misunderstanding; The trademark right transfer contract signed and the trademark right license contract performed are necessary contracts and so on.
Matters needing attention in signing trademark right transfer contract
1. There are certain restrictions on the transferee of the trademark right transfer contract and the licensee of the trademark use contract.
The transferee of the trademark right transfer contract and the licensee of the trademark use license are limited to enterprises, institutions, social organizations, individual industrial and commercial households, partnerships, foreigners or foreign enterprises.
2. Trademark right transfer contract and trademark licensing platform are both important contracts.
The assignor and assignee who assign a registered trademark shall file an application with the Trademark Office with a copy of the trademark registration certificate, a copy of the registered trademark assignment contract and relevant documents. After the transfer of a registered trademark is approved, the original Trademark Registration Certificate and the certification documents approved by the Trademark Office shall be sent to the transferee and announced in the Trademark Announcement. Where a trademark is licensed, the licensor and the licensee shall, within 3 months from the date of signing the license contract, submit a copy of the license contract to the local county-level administrative department for industry and commerce for the record, and the licensor shall submit it to the Trademark Office for the record, and the Trademark Office shall make an announcement.
3. Trademark transfer is based on the condition that the public will not misunderstand, confuse or have other adverse effects.
Trademark right transfer refers to the transfer of a trademark from an enterprise, which may cause public misunderstanding in some cases, because in the public impression, a trademark is associated with a specific enterprise that provides a certain commodity or service. The Trademark Office shall not approve or reject an application for the transfer of a registered trademark that may cause misunderstanding, confusion or other adverse effects.
4. Similar trademark rights shall be transferred together.
When transferring its registered trademark, the trademark owner shall transfer it to the same assignee together with other identical or similar trademarks registered on the same commodity or similar commodities. This is to prevent consumers from being confused and misunderstood that different producers or service providers use the same trademark on the same commodity or service.
5. The contract should have the statutory necessary clauses.
A trademark transfer contract and a trademark license contract should generally include the following main contents: the names, addresses, date and place of signing of both parties; The name, design, country and registration number of the trademark, as well as the category and name of the goods or services approved for use by the registered trademark; The licensing status of existing registered trademarks; Price and payment method; An agreement between the transferee or licensee to guarantee the quality of the goods; Conditions and procedures for suspension and dissolution of the contract; Liability for breach of contract; Law application and dispute settlement. The trademark licensing contract shall also specify the authorized scope of use of the trademark, the licensed area and time, the trademark renewal procedure and other procedures to ensure the effectiveness of trademark registration.
Legal problems that should be paid attention to in performing the contract
1. After the contract comes into effect, the transferor of the trademark transfer contract shall not use the transferred trademark on the goods or services approved for use with the transferee's trademark or similar goods and services within the effective area of trademark registration, otherwise the trademark right of the transferee will be infringed. If the assignor wants to continue to use the trademark, it must sign a trademark license contract with the assignee and obtain the authorization of the assignee.
2. Where a registered trademark is transferred, the date of announcement of the trademark shall be the starting date for the transferee to enjoy the exclusive right to use the trademark, and the period of validity of the registered trademark after the transferee shall be from that date to the expiration of the registered trademark.
3. In the trademark license, the licensor shall supervise the quality of the goods that the licensee uses its registered trademark, and the licensee shall guarantee the quality of the goods that use the registered trademark. Where a licensee uses another person's registered trademark with permission, it must indicate the name and place of origin of the licensee on the goods using the registered trademark. If the licensee violates the statutory or agreed quality assurance obligations, the licensor has the right to suspend or terminate the trademark license contract.
4. Licensee shall not allow any third party to use the registered trademark without the express authorization of the trademark owner.
The licensor shall guarantee the validity of the registered trademark within the validity period of the trademark license contract. Where the period of validity of a registered trademark expires, it shall go through the formalities for renewal in time. Licensors should also abide by the provisions of the Trademark Law when using registered trademarks themselves, so as to avoid the cancellation of registered trademarks by the Trademark Office due to improper use.
What pitfalls should we pay attention to in trademark transfer? According to the current trademark practice, China's Trademark Law and its implementing regulations only give the Trademark Office the power to approve trademark transfer applications, but do not stipulate the responsibility for improper approval. Due to the lack of proper supervision of administrative power, administrative organs often have the right but no responsibility, and the power of the Trademark Office to approve trademark transfer applications is almost unrestricted, which provides an opportunity for criminals.
It is by taking advantage of legal loopholes that some lawless elements forge the seal and signature of the trademark owner, transfer the registered trademark of others to themselves or a third person designated by them, and apply to the Trademark Office for relevant procedures, thus committing fraud? Legal? Coat. After obtaining the registered trademark of others by illegal means, criminals often transfer or license the trademark to others to earn economic benefits, while the original trademark owner is kept in the dark and suffers huge losses; Or ask the original trademark owner for a high reward in exchange for the trademark, and threaten to sue him for trademark infringement if he refuses. If the original trademark owner takes it as the defendant to file a lawsuit to confirm that the trademark transfer is invalid, they will run away and never appear in court, and the court will not be able to serve them with litigation materials, which will bring many difficulties to the court in hearing such cases.
At the same time, some rights holders think that litigation is too troublesome, which is not only time-consuming and laborious, but also pays legal fees, investigation and evidence collection fees and other litigation costs. They had to swallow the demands of criminals and transfer their trademarks to themselves after paying them a sum of money. Some lawless elements also took a fancy to this weakness of the trademark owner, and the amount demanded was generally equivalent to the amount paid by the trademark owner for litigation, trying to induce the trademark owner to settle it peacefully by paying the transfer fee. For those trademarks with important value or high reputation, they ask for high transfer fees.
Matters needing attention in signing trademark transfer agreement (1) Illegal transfer
The so-called illegal transfer of a registered trademark means that the transferor of a registered trademark is not the registered trademark owner, or cannot represent all the trademark owners, or secretly transfers its registered trademark by concealment, fraud, forgery and other improper means without the consent of the registered trademark owner. Because there are objective loopholes in the existing trademark transfer procedures, it is not difficult to do such a thing. Although the interests of the trademark owner can be solved and protected through legal channels afterwards, the heavy losses suffered by the parties will be irreparable.
(2) Invalid transfer.
The so-called invalid transfer means that the transfer of a registered trademark does not meet the restrictions stipulated by the law firm. Although the trademark transfer parties signed a trademark transfer agreement and Party B paid the trademark transfer fee, it is impossible for the application for the transfer of registered trademarks to be approved by the State Trademark Office. Therefore, the transfer of a trademark is invalid, because the trademark cannot be approved for transfer, so the owner of the trademark remains unchanged.
Because the period for the State Trademark Office to review the transfer of registered trademarks varies from half a year to more than one year, and after the two parties sign the trademark transfer agreement, they need to pay the transfer fee, prepare relevant trademark transfer application documents, mail and print, and so on. Therefore, after the trademark transfer agreement is signed, the transferee cannot immediately determine whether the transferred trademark can be approved for transfer registration by the State Trademark Office, and it will take at least six months.
(3) the issue of partial transfer
The so-called partial transfer means that the transferor of a registered trademark has not transferred other similar trademarks related to the transferred trademark right to the trademark assignee, but intentionally or unintentionally kept or concealed some similar trademarks similar to the transferred trademark, and after the trademark transfer, the transferor can still use other trademarks similar to the transferred trademark, which has caused substantial damage to the trademark assignee.
(4) the problem of concealing the rights and interests of the transferred trademark.
When transferring a trademark, the trademark transferor conceals that the trademark has been licensed to others, pledged to pay off debts, and transferred before the transfer, so that the rights and interests of the trademark transferee are behind the transferee.
The above is the notice of trademark transfer provided by Bian Xiao. I hope everyone will like it!
trademark transfer