What risks should you pay attention to when applying for trademark transfer?-Q&A.-Shenzhen deep trust patent Agency Co., LTD

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What risks should you pay attention to when applying for trademark transfer?

Release Time：

2023-12-05

In accordance with the relevant provisions of my country's Trademark Law, trademark transfer applications should be submitted jointly by both the transferor and the transferee based on their true wishes. In production and business activities, because the trademark applied for transfer or the situation and status of the trademark application are directly related to the interests of the transferee, and the transferee inherits and obtains the exclusive right to the trademark through transfer, it should before submitting the trademark transfer application. Compare the relevant provisions of the Trademark Law and combine the results of self-search and research to fully assess the risks of trademark transfer. In practice, these risks vary depending on the status of the trademark to be transferred, and need to be avoided based on the actual situation.

The possible risks when applying for the transfer of a registered trademark are: First, the registered trademark may face the risk of being declared invalid. Pay attention to whether the trademark violates Articles 44 and 45 of the Trademark Law and should be invalidated. Declaration circumstances, such as whether it is a malicious trademark registration application not intended for use, a sign that cannot be used as a trademark, registration obtained by deception or other unfair means, damage to the existing prior rights of others, etc. During the trial of an invalidation case, the judgment of whether a trademark violates the above-mentioned relevant legal provisions is generally based on the real-time status of the trademark application for registration.

Second, a registered trademark may face the risk of being revoked. You should pay attention to whether the trademark violates the provisions of Article 49 of the Trademark Law on trademark use, that is, whether the registered trademark has become the common name of the goods for which it is approved to be used or whether Not using it for 3 consecutive years without justifiable reasons, etc.

Third, registered trademarks may face the risk of not being renewed upon expiration. You should pay attention to whether the trademark is in a valid state. If it is within the renewal or extension period stipulated in Article 40 of the Trademark Law, whether the renewal has been processed in accordance with the regulations. Procedures etc.

The risks faced when applying for trademark transfer include: First, trademarks that are in the process of trademark registration substantive review, rejection review, and non-registration review may face adverse conclusions such as rejection or denial of registration; second, for trademarks that have undergone substantive review, For a trademark that has been initially approved and announced, the relevant parties may file an opposition application in accordance with Article 33 of the Trademark Law.

Risks faced when applying for the transfer of a pledged trademark: According to the provisions of the Civil Code, "After the property rights in intellectual property rights are pledged, the pledger shall not transfer or license others to use them, except where the pledger and the pledgee agree through negotiation." Submit proof of written consent of the pledgee. If not submitted, the transfer application will not be approved.

Possible risks when applying for transfer of trademarks seized and preserved by the court: According to relevant judicial interpretations, if the people's court preserves registered trademark rights, which may include prohibition of transfer and other matters, documents proving the written consent of the court must be submitted. If not submitted, the case will not be granted. Approval of transfer application.

Possible risks when applying to transfer a trademark that has been licensed to others to use: According to Article 43, Paragraph 3 of the Trademark Law, regarding trademark licensing filing and related judicial interpretations, "the transfer of a registered trademark does not affect the validity of the trademark license contract that has been in effect before the transfer." , except as otherwise agreed in the trademark license contract.” The previously valid trademark license may have an impact on the exercise of rights after the trademark is transferred, and attention should be paid to the type of trademark license and the filing status. (This article is excerpted from the "Guidelines on Trademark Transfer Procedures")

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