After the termination of the trademark license allocation of goodwill
Published :2014 -02-18 Source: "Intellectual Property Rights " 2012 12
Important issues goodwill allocated after the termination of the trademark license is a theoretical and practical value : executive summary. Is the unique packaging licensed merchandise , after decorating obtain significant , if consumers believe the packaging, decoration and trademark licensee indicated the same source , the goodwill of a trademark license should belong to the people rather than the licensee . After the termination of the trademark license , the licensee shall bear the collateral obligation to continue to use the licensor of goodwill , therefore Licensee shall not publicize its new logo and replace the old relationship between the trademark license is to achieve the transfer of goodwill. Trademark Law requires the licensee to fulfill this obligation incidental , freedom of expression does not harm the interests of consumers and operators .
In general , after the termination of the trademark license agreement , the licensee should stop using the trademarks, owned by the licensor goodwill accumulated on all licensed trademarks. [ 1 ] This was a basic consensus in the field of trademark law . [ 2 ] Under this agreement , does not seem to need to accumulate during the owner of the trademark and license the licensee how to allocate goodwill to do in-depth discussion .
However, this year is particularly striking , " Wong Lo Kat" trademark licensing dispute gives us a chance to revisit this issue. [ 3 ] case, Guangzhou Pharmaceutical Group has " Wong Lo Kat " trademark , the production of green carton packaging , " Wong Lo Kat" herbal tea. JDB Group and Guangzhou Pharmaceutical Company signed a trademark license agreement , which authorized the production of red canned " Wong Lo Kat" herbal tea. Pursuant to the license agreement, the drug may not produce a wide red cans herbal tea. Two kinds of herbal tea recipes are not the same , tastes naturally different , have different consumer groups. Red cans JDB herbal tea recipe is the company´s trade secrets. After years of operation , the company sold JDB "Wong Lo Kat " red pot of herbal tea made remarkable commercial success in the Chinese market . Unexpectedly, in 2012 , the Trademark License widely between drugs and JDB unexpectedly terminated prematurely . GPHL achieve complete control over the combination of great goodwill "Wong Lo Kat " trademark . The promotion of the trademark JDB made great contributions to the company at the heart unwilling , so another way to claiming the packaging cans of red herbal tea , decorating entitled unfair competition law sense , while vaguely reminded product advertising spending who " JDB " red pot of herbal tea and substitutes the original "Wong Lo Kat" herbal tea between red cans . [ 4 ] JDB ´s share of this strategy is actually the process of creating goodwill permission from two ways : First, to be attached to assert their trademark licensed merchandise packaging, decorating enjoys independent right ; second in the middle of the product advertising propaganda substitutes ground between the old and the new trademark . These two issues of general significance in the trademark license , is worth studying.
Research paper, " Wong Lo Kat " case raised the issue of sharing of goodwill as a starting point , but not limited to the case itself . This paper begins with a brief discussion of "packaging , decoration ´ property on unregistered trademark and unfair competition law was significant, based on this analysis of the licensee on the product by the licensee as " packaging , decorating " to establish an independent Goodwill possibilities and limits. Next, after the termination of the trademark license analysis Licensee shall not take the collateral obligation to continue to be licensed trademark ride , and the freedom of expression of these two angles demonstrate the reasonableness of the collateral obligation to protect the interests of consumers and from the operators .
Second, significant known commodity packaging, decoration
Goodwill is allocated to discuss the trademark license after termination , Talking from " well-known commodity -specific packaging , decorating " significance , some people might be surprised. The reason why cut from here , because to clarify the protection of well-known names and packaging of the product -specific anti- competition law indisputable , decorating the legislative purpose , renowned for understanding the packaging of goods , decorating the corresponding vesting essential .
" Well-known commodity -specific packaging , decorating " The reason why the protection by the Anti-Unfair Competition Law , in essence, not because of the packaging and decoration is an intellectual achievement in itself , but because of the packaging, decoration plays a difference through the use of the product source or labeled product quality role. [ 5 ] If not the packaging, decoration provide similar unregistered trademark protection will lead consumers to confusion . This should have become the mainstream opinion in academia , reflected in the Supreme Court on anti- competition laws indisputable judicial interpretation. [ 6 ] " Anti-Unfair Competition Law" and relevant judicial interpretation has stressed that "famous " , probably because after reaching the extent known , the Court finds that the package have the confidence , decorating with a significant on trademark law . [ 7 ]
There are a few views of academics unfair competition law will protect the packaging , decoration seen as a protection of intellectual achievements . [ 8 ] This opinion if projected onto the "Wong Lo Kat" case, it may emphasize intellectual contribution JDB red pot of herbal tea for packaging design , which advocates for the packaging, decoration entitled the Anti-Unfair Competition Law . This interpretation packaging, decorating the legislative purpose of the Anti-Unfair Competition Law , it is difficult to understand why the packaging and decoration must be protected well-known before . [ 9 ] At the same time , it is difficult to explain , beyond design patent protection and copyright protection , why a separate law to protect the well-known designs . To avoid falling into this misunderstanding, in the judgment of the Anti-Unfair Competition Law packaging , when decorating vested interests , the court should uphold the protection of unregistered trademarks of ideas , rather than ownership of intellectual ideas .
Specific to the "Wong Lo Kat " case , whether red cans themselves have significant on trademark law , is essentially a question of fact . Prior judicial determination , originally did not determine the answer. However, the constituent elements of the case in red packaging is too simple ( combination of red and yellow background trademark font ) , in out , " Wong Lo Kat" trademark case, it may be difficult to play the role of origin labeling products . Because of the widespread use of red beverage industry packaging ( such as , and its positive herbal tea , Coca-Cola , etc. ) , which led to a red packaging companies to obtain significant possibility is greatly reduced.
In that case, JDB had ever called red packaging design patent . [ 10 ] In some people, the fact that the JDB red packaging design companies have made intellectual contribution that might help prove significant red packaging . This opinion is not convincing. As mentioned earlier, " Anti-Unfair Competition Law" protective packaging , decoration , not to protect intellectual contribution designers. A packaging, decoration whether patent protection , and whether made significant trademark sense, there is no direct contact . Secondly , JDB bottle stickers designs in striking position shows "Wong Lo Kat " trademark , along with some specific words and with pictures design , is a program which contains several details of the design (assuming compliance with design patent authorization standard ) . The company claimed JDB unique packaging seems to be relatively abstract red packaging, and design patent no strict correspondence. The existence of a specific design patents , for proof packaging is relatively abstract red significant , did not help .
In the " Wong Lo Kat " case , the two sides agreed in the license contract , during the license wide drug does not produce red cans of herbal tea. [ 11 ] GPHL indeed produced only green packaging herbal tea. Restrict the use of specific licensing contract party package , you can play the role of intra-brand market segmentation , in order to protect the investment enthusiasm of both parties. However, this does not prove that the contract GPHL default red packaging itself was significant , at best, can only prove the difference between red and green packaging " Wong Lo Kat" herbal tea brand inside the two series , but can not distinguish Wong Lo Kat herbal tea outside to play with a third party the role of herbal tea . [ 12 ] After the termination of the license agreement , if there is no special agreement , wide use of the drug can be restored naturally red packaging.
Third, the possibility of obtaining an independent licensee of goodwill
Trademark licensing process has been accumulated on the goodwill of all the licensed trademarks belonging to the licensor . However, this does not mean that the licensee can not be obtained in the licensing process is completely independent of goodwill. Permit simultaneous use of multiple operators trademark law trademark on the same commodity . These trademarks may originate from a manufacturer , it may originate from multiple vendors . [ 13 ] In practice, the licensee to use the licensor while on their own production and sales of products in their own or third-party trademarks examples are not uncommon . For example, the joint venture automobile manufacturers often use two points trademark trademarks belong to different people in the same car . Consumers generally understand the situation of both the joint venture and will not mistake the two trade marks belong to the same vendor. These marks will be recognized separately in the minds of consumers , and thus each enjoying separate goodwill. After the termination of the license agreement , the two sides were using their trademarks , and will not lead to confusion.
Known commodity -specific packaging , decorating with significant later, can be seen as an unregistered trademark. User ( licensee ) may establish unregistered trademarks in this independent of the goodwill of a trademark license , provided that consumers are well aware of this and unregistered trademarks are licensed trademarks represent different vendors . The truth is like the difference between the two trademarks consumers can occur simultaneously on the same car . Of course, in practice, independent licensee of goodwill on the packaging of goods , decoration , to overcome natural obstacles - product packaging , decoration birth defects inherent in significant respects , [ 14 ] it is easy to Consumers establish contact with the eye-catching trademark on goods , not easy to associate it with the eye-catching packaging is not vendor-specific name. Beverage and other consumer products in general , the consumer´s attention is limited, this barrier is particularly evident . Therefore , the licensee obtained by wrapping , decorating the possibility of an independent goodwill , theoretically , in fact, very small.
In judging whether the person is licensed by the packaging , decorating using independent goodwill should abide by " the licensee on the licensed trademark appended goodwill " Licensor attributable to the basic principles of respect for the inherent logic of the trademark attribution - attention Contact ( the licensee ) between consumers perceive unregistered trademarks and vendor-specific . If consumers will not contact a registered trademark licensed trademark together , the goodwill unregistered trademarks belonging to the licensor . This is the inevitable choice to avoid confusing consumers . In the case of Wong Lo Kat , for example, if the majority of consumers thought the red packaging is "Wong Lo Kat " herbal tea unique packaging , and non- legal permission , " Wong Lo Kat " brand products using the red packaging, will inevitably lead to confusion , so many consumer who mistakenly think the product is "Wong Lo Kat " brand herbal tea.
Respect consumer awareness , to avoid confusion caused , but also deal with the general principles of trademark law trademark ownership of other issues . Based on " Trademark Law Implementing Regulations " , the same or similar trademarks registered trademark in the same or similar goods registration shall be migrated. [ 15 ] This provision is intended to avoid confusion similar trademarks belong to different subjects , to mislead the public . Terminate the trademark license contract [ 16 ] , roughly analogous to a trademark licensee from there again "transfer" to the licensee. To avoid confusion, the licensee shall be to stop using those " unregistered trademarks " are licensed trademarks indistinguishable. In other words, the licensee shall cease to be licensed to use the trademark specific packaging , decoration .
Emphasis on consumer awareness , ignoring the goodwill is not a registered trademark licensed to cultivate human contribution , in some people, may be unfair . For example , in the " Wong Lo Kat " case , many people believe that the licensee JDB to foster goodwill , " Wong Lo Kat " trademark and the red cans , and made a great contribution to the termination of the license , completely deprived of JDB red cans interests , does not comply with the principle of fairness . [ 17 ] Such views ignore the nature of trademark licensing. In the course of the trademark license , the licensee is honest business will probably increase the goodwill of a trademark license . However, once the trademark license termination , the licensee must cease use of the mark , which is already the industry´s generally accepted business practices , the public did not lead to "unfair" feeling. Even due to accidental causes or deliberate licensee is licensed merchandise spills some goodwill to be outside the licensed trademark ( ie, where unregistered trademarks or packaging and decoration ) , the law requires the licensee to return these goodwill ( provided that the consumers think it is one of two licensed trademark ) , does not seem to be fair and respect the concerns raised . More importantly, after the termination of the trademark license contract, the goodwill attached to the trade mark owned by the licensee of all , this is all a trademark license contract parties can foresee things . In a strictly voluntary basis , make arrangements in line with conventional commercial body , it is difficult to say the agreement has significant misunderstanding or unconscionability ingredients. Or to fulfill the court should respect the choice of the parties, not in good faith or the fruits of labor protection principles should be rewritten to get the next contract . Even after the signing of the licensee personnel considered this contract is very unwise , the court should not rewrite contracts to help the licensee to get rid of a very bad deal . Actually, "Wong Lo Kat " case , the license fees paid by JDB in the course of business is limited, never permit the process to obtain a substantial return. [ 18 ] solely from the perspective of commercial fairness , we can not say that the transaction between the parties unconscionability . Even if the court permitted by law to reallocate contract benefits , it is difficult to know how the court will come to a more reasonable distribution of results .
Someone may contact the U.S. treatment product manufacturer (manufacturer) between the dealer (distributor) trademark ownership dispute rules to question these claims. United States Court recognized in a large case , in the absence of the contract , the manufacturer enjoys the presumption of ownership of a trademark dispute . [ 19 ] However , the dealer can prove to overturn this presumption. The court, in deciding whether to overturn this presumption , to consider a number of factors , such as the trademark of the designer who is , who first used the trademark to sell products, who together with the name and trademarks appear on the packaging and promotional materials , who controls the trademarks are attached to product quality, in the eyes of the consumer product defect who is responsible , who pays the cost of trademarks to promote adhesion of products and so on. [ 20 ]
U.S. courts do not have the specific source of consumer perception of the product as a decisive factor in the above cases treated , does this mean that the trademark licensing contract , along the same lines , we should not be judged by consumers perceive as licensed merchandise packaging, decorating this is not based on a registered trademark attribution ? This paper argues that the answer is no . In trademark licensing dispute , a number of factors are clear: First, be very clear ownership of the trademark license ; Second , consumers consider unregistered trademarks ( packaging, decoration ) and is one of two licensed trademarks ; Third, the licensing contract in the licensed trademarks are the accumulation of goodwill should be vested in the licensor . These factors make it very clear one tilted the balance of goodwill attributable to the licensee. In a typical manufacturer and distributor of trademark disputes , generally do not involve the division of the two is regarded as one of the trademarks , goodwill does not exist by default attribution rules. Both sides are usually single trademark dispute ; in the minds of consumers , the mark represents the specific source of the product , the manufacturer or distributor sources , most consumers do not care. The final mark owned by manufacturers or distributors , will not lead to serious confusion. Therefore, we can not refer to the trademark attribution rules between manufacturers and dealers to handle the ownership of the trademark license unregistered trademarks.
In determining the goodwill attributable to analyze consumer awareness of what is required unregistered trademarks point to a specific product or a specific mark ( vendors ) , there may be controversial. To "Wong Lo Kat " case , for example, the case in academia for product packaging , decorating what point the "specific formula or herbal tea taste " ( specific product ) or a specific mark ( "Wong Lo Kat " brand herbal tea ) , disagree . [ 21 ] support the view that the former is a specific formulation of herbal tea to get the consumer´s identity , that consumers like to drink herbal tea JDB formulations. JDB manufacture of the product , but the product has a secret recipe . Therefore, the product should be on the goodwill attributable to the JDB . Support the latter view was that , in the minds of consumers , the red herbal tea from the pot , " Wong Lo Kat" controller of the brand . Who ultimately owns "Wong Lo Kat " trademark , whoever owns the packaging and decoration of exclusive rights ( assuming that there were significant ) . This paper argues that , after an opinion in line with the spirit of the Trademark Law . Product quality is good or bad , whether technologically advanced and attribution of goodwill are not necessarily linked . Patent or trade secret licensee , and can not be obtained because of superior technology of the licensee in the licensed product built up a reputation . Consumers prefer a particular commodity, the goodwill arising from the factual basis , but not the minds of consumers goodwill attributable determinants. Based solely on the product manufacturer to determine who the actual goodwill attributable to the division of the order of destruction of modern commercial society established trademark owners , designers, manufacturers and other industry chain between .
In some cases , well-known commodity packaging, decoration or unregistered trademarks , the licensee may reflect substantive intellectual contributions. For example , the decor may constitute copyright law sense ; Or, as the case wanglaoji as licensee even won a design patent . In this case , if the trademark licensing contract terminated and copyright or patent is still valid , it seems that there will be so-called " conflict of rights " issues : [ 22 ] decorated with a particular consumer is regarded as one of the trademark license , but the licensee use this decoration will infringe the copyright or licensee of the patent . In this case , one reasonable solution should recognize the right of each of the parties to the packaging , decorating enjoyed , but after the termination of the trademark license contract , without their authorization , who can not be used independently of the decor. Quality words , the licensee owns the copyright or patent , however , this is only a negative right to exclude others from using , by itself, can not guarantee the licensee to use the work himself or decorating their products . Licensee enjoys an unregistered trademark, but the same can not guarantee this right , he can use the packaging, decoration on the product. Faced with this " conflict of rights " , the two sides can only be resolved through negotiations. The emergence of this situation does not violate legal .
Another possible solution to " conflict of rights " above is that the licensee has identified the behavior of implied license , the license after the termination of the license the trademark owner to use the packaging and decoration . Because the licensee may foresee that the unique decorating obtained by using significantly , thus becoming one with the licensed trademark jointly indicate the source of goods . Licensee did not take measures to block the contact with the decor itself between licensed trademarks , which may mean that the licensee acquiesced licensee can continue to use the future decorating .
In consumers packaging, decoration and is regarded as one of the licensed trademark case, the two solutions than license the licensee after the termination of the contract to continue using the decorating solution to be reasonable. Permit the licensee to continue to use the decor, the licensee will encourage free-riding behavior continued after the termination of the license triggered a conflict of interest , but also harm the interests of consumers. This will be further discussed below.
Fourth, after the termination of the license does not ride the accompanying obligations
After the termination of the trademark license , the licensee shall continue to use the licensed trademark , otherwise Licensee will bear the responsibility or liability for trademark infringement . This is the essence and purpose of the contract attribute decision trademark licensing contract , there is no controversy. In practice the situation is relatively easy to cause controversy licensee is licensed to use the trademark in disguise , so as to obtain benefits from goodwill continuously licensed trademark cohesion , or the goodwill transferred to their new trademark.
Licensee of the most extreme way directly in their product packaging, advertising or service establishments claim that their products or services that are licensed trademarks of the corresponding original products . For example , the licensor may terminate the trademark license after claiming to be the original " Wong Lo Kat " original " UCC " and so on . Probably more tactful manner , the licensee does not directly mention the trademark licensee , but to remind consumers of new trademark licensee is replaced with the relationship between the original trademark licensed through vague statements. For example , JDB claimed in the ad , " national sales leader of the red cans renamed JDB herbal tea ." [ 23 ] " national sales leader ", " renamed " sort of argument, many consumers will naturally think of the original " Wong Lo Kat ."
Replace old trademark licensee claimed between are objective facts. The fact that the protection of the public informed choice for some consumers , there are some positive significance . Therefore , the licensee may be to " freedom of expression " or " consumer protection " to justify their actions . Reasonableness of such a defense , the latter will be devoted . Explore here first after the termination of the license agreement , the licensee whether there is a contractual obligation to avoid publicity substitute relationship between the old and the new trademark products or commercial advertisements.
This paper argues that , after the termination of the license the licensee shall continue to use the licensed trademarks are the accompanying obligations , including the Licensee shall continue to use the licensed trademarks to be profitable goodwill content. As mentioned above, during the license to the licensor accumulated goodwill is licensed trademarks trademark owners . After the termination of the license , the licensee in accordance with the contract returned to the goodwill complete trademark owners . This of course means that after the termination of the license , the licensee can no longer be disguised goodwill again "steal " back. Replace the licensee continued to mention the relationship between the old and new products or trademarks in the ad, is actually in the " steal back " has been based on the return of goodwill contract , or that is permitted to continue to use the trademark in the market appeal ( Goodwill ) , the potential for their products to consumers seeking . The reference to a real trademark transfer case to illustrate the dangers of such behavior. After three Longyan in Fujian Cement Building Materials Industry Co., Ltd. v. De Zhangping Sanli Cement and侯晋龙case [ 24 ] , the trademark owner enjoys fame in the transfer of the local "three German " brand cement trademarks, use the " Camellia " brand new logo , in order to bring back the original old customers , who own the trademark products marked " original three German card ." Therefore, the assignee of the original trademark owner of the trademark infringement allegations , a court decision in favor of the transferee . Case, the trademark owner to sell the trademark and then emptied the original trademark disguised goodwill , inconsistencies, a serious violation of the purpose of trademark transfer contract. Similar to the trademark transfer , after the termination of the trademark license agreement , the licensee may return and transfer of the trademark act trademark analogy . Upon termination , Licensee old trademark publicity relationship between alternative , similar to the trademark transfer back again to steal the goodwill , also contrary to the basic spirit of the trademark licensing contract. For this reason , the paper stressed that after the termination of the trademark license , the licensee bears in business situations to avoid direct or indirect reference to the accompanying obligations are licensed trademarks.
Legal presumption trademark license licensee bears the above accompanying obligations , in line with the practice of trademark licensing . In the trademark licensing contract , if the owner of the trademark for the circumstances foreseen after the termination of the license , the licensee will usually choose to be licensed to use the trademark in commercial activities through contractual restrictions , such as requiring the licensee to stop using after termination everything has been licensed logo advertising material . [ 25 ] is consistent with the default rule of law would otherwise agreed by the parties are able to effectively reduce the transaction costs of the contracting parties .
Trademark law prohibits the licensee is licensed trademarks mentioned directly in commercial activities , the licensee may adopt alternative strategies to achieve the purpose of the transfer of goodwill . For example , as mentioned earlier , JDB product advertisement does not directly mention licensed trademark , but consumers will still be able to procure products and JDB past " Wong Lo Kat" link. This strategy with direct reference to the "Wong Lo Kat " trademark , there is no essential difference . When this strategy substantial damage to the goodwill value of the licensee, the trademark owner should be able to seek relief pursuant to a trademark license contract, or the Anti-Unfair Competition Law .
Protection of five , the interests of consumers
In general the trademark license , trademark trademark owner can usually recover after continuing to provide the same goods, continue to ensure the product quality and consistency. In this process , the consumer expectations for product quality not usually frustrated because of the termination of the license . Therefore , the trademark license does not significantly affect the interests of consumers .
After the trademark owner to recover the trademark , if you can not provide the same product , it may cause some consumers prefer the original product of interest is affected. For example , in the case of Wong Lo Kat , after the termination of the trademark license , Guangzhou Pharmaceutical will use different formulations of herbal tea production of red cans , resulting in product tastes change. Preference for red tank Wong Lo Kat herbal tea original taste of consumers , the product may not meet changing tastes . For them, drug manufacture a wide red tank Wong Lo Kat herbal tea , there are certain "misleading" ingredients.
In this case , if the law allows the licensee China announced their new logo had been replaced with the relationship between the trademark license , it may lead some consumers turn to JDB products . Trademark law in the name of consumer protection can allow the licensee to do this? The answer is no.
First, legislators have to make a choice of trademark law , strict protection of these consumer expectations is not desirable. Trademark Law does provide trademark owners have the obligation to control the quality of goods . [ 26 ] However , this obligation does not require consistent quality of goods , [ 27 ] as long as they meet the requirements of the "Product Quality Law" can be. [ 28 ] In the course of business , the trademark owner can change the quality of the product, is the same as the original owner of the trademark by the self- defined product quality. Trademark owner to change the product quality on the part of consumers, it means suited. If this part of the law strictly to protect consumers´ expectations , it will seriously damage the operation of free enterprise , and can also damage the interests of other products like the new consumer . In the interests of operators and consumers on product quality and stability expected conflict in the former priority . Allow trademark owners from licensing or assignment of trademarks moment , modern trademark law has deviated from the traditional principles of trademark law requires goodwill (business ) in conjunction with the trademark transfer between consumers and trademark owners choose to mark right side´s tilt. Some scholars believe that this trend is strengthening property rights in the trademark property and questioned the reasonableness of its proposed . [ 29 ] However , trademark law has to make a choice , for it has no doubts. [ 300 ]
Second, market and other legal systems limit the indiscriminate or excessive change in trademark goods quality. After the trademark owner changes in product quality, do not like , or not suited to the new products, consumers will choose to vote with their feet , and thus the owner of the trademark practice of arbitrarily change the product quality formation pressure. If consumers do not like the red cans wide drug herbal tea will naturally buy less , turn to alternative products may eventually find JDB red pot of herbal tea that alternatives. In this process , some consumers go through a trial and error process, and to pay " fees " or cost. However, if no problems were encountered sense of the Product Quality Law , the costs are not too high, can be ignored. Market mechanism to work, trademark law is not necessary to the above consumer expectations as a statutory interest to be protected. Only the owner of the trademark trial and error over increased costs to consumers , the law only requires intervention : If a trademark owner go too far , can not guarantee the quality of basic commodities , which will face administrative liability and tort law trademark law on the civil liability. Trademark Law is still not necessary by the licensee to continue to use the licensed trademarks are the way to protect the interests of consumers.
Third, the law allows the licensee after the termination of the license trademark propaganda substitutes between the old and new , will create new confusion. Upon termination of the trademark license contract , the internal quality control mechanisms exist brand . If Licensee may publicly declared these substitutes , the law does not guarantee that the licensee´s actions are strictly controlled within the scope of protection of the preceding consumer expectations ; Instead, it is likely to evolve into a mere free-rider behavior. In the case of Wong Lo Kat , for example, if the license JDB continued to claim that the relationship between the old and new alternative mark , while protecting the part of consumers ( like the last red tank Wong Lo Kat herbal tea consumers ) , but it may make the loss of those who sustained extensive drug alone like Wong Lo Kat brand , but consumers do not care about the recipe change , or continuous streaming GPHL new expansion consumers. This is in fact sustained damage " Wong Lo Kat " trademark goodwill and create new confusion , and therefore is unacceptable .
Sixth, freedom of expression operators
When operators to disclose beneficial to consumers to make informed decisions and true information using someone else´s trademark , trademark law may hold a tolerant attitude . The most typical scenario is that comparative advertising . In this type of advertising , the operator will own certain characteristics of goods and commodities are compared to others , so that consumers get more objective information. This comparison will often affect the part of the consumer ´s willingness to buy the product being compared to the detriment of being relatively operators. In the interests of consumers and operators of conflict, many countries in Europe and America in order to protect the name of freedom of expression , select the interests of consumers . [ 31 ] For comparative advertising of legal legitimacy does not clear. [ 32 ] Some scholars believe that our law as a whole tends to be more negative its legitimacy. [ 33 ] However , a complete denial of comparative advertising academia views are rare.
As in the case of comparative advertising , trademark law in many countries choose to protect freedom of expression or that the interests of consumers , so in the case of termination of the license , trademark, whether it should make a similar choice - emphasis on freedom of expression licensee to to protect the consumer´s right to informed choice ? As mentioned earlier, some consumers are expected to product quality and stability , not to be a priority on the protection of the interests of trademark law . Operators simply focus on freedom of expression , there is not much convincing : After the termination of the license agreement , operators publicity contact between the old and the new trademark , mainly for their own commercial purposes , so the licensee will be difficult for the court to believe that their commercial freedom of expression must go beyond the protection of the licensor of goodwill.
Some might say that even if trademark law prohibiting propaganda permit the licensee to the fact that public media is still possible in the name of consumer education news , to achieve the transfer of goodwill. For example , "Wong Lo Kat " case , after the termination of the license , the parties dispute continued, public media narrative repeatedly in news reports , " Wong Lo Kat JDB renamed " the fact that some consumers continue to be pulled back from the licensee where the licensee people there. In this sense , an independent public media coverage and advertising licensee similar effect . However , the law did not limit the public media for non-commercial purposes of such facts objectively reported. For the public , such restrictions involving freedom of speech or freedom of the press in the public domain in the name of protection of trademark rights to limit the spread of this type of objective news , is unthinkable.
However, the public media expression or freedom of speech does not mean the licensee has the same freedom. In cases concerning freedom of speech , the court generally distinguish between political freedom of expression and freedom of commercial expression . [ 34 ] trademark laws restricting freedom of political expression , the freedom of expression than limiting commercial much more cautious , or that commercial speech only have limited freedom of speech protection . [ 35 ] public media for licensing the objective facts of the case reports, belongs to the category of political expression or in a gray area between politics and business ; was promised in the commercial relationship between the old and the new alternative promotional occasions trademark , more to the for commercial purposes. Trademark law for this type of commercial restrictions on freedom of expression , should be easy to be accepted.
In addition to commercial property expression , the licensee´s freedom of expression is limited by other legitimate basis is a trademark license contract and trademark licensee relationships between people . As mentioned earlier , the contract requires the licensee to perform after the termination of the license accompanying obligations not hitchhiking . Selected entry permit the licensee after the contractual relationship , to give up some of the commercial freedom of expression - the license shall terminate upon propaganda substitutes between the old and the new trademark . Does not exist between the public and the media or third party trademark owner of such trademark license contract relationship , so they can still be under the aegis of freedom of expression , freedom to propagate this fact. Similarly, in comparative advertising cases, does not exist between the operator and the owner of the trademark licensing relationship constraints , and thus the freedom of commercial expression can shelter comparative advertising . [ 36 ]