When Ningbo divorces, how do you divide the trademarks and time-honored brands under the names of individual industrial and commercial households and companies?
There are many business families in Ningbo. The couple guarded a shop and a brand together, and slowly became famous. The trademark and brand name were also held in their hands. But once the divorce, the house and the car are divided, the most difficult thing to talk about is often the "brand": can the old brand in front of the store still be kept? Does the other party have a copy of the trademark registered in his own name? Does the valuable trademark in the company's name need half of one person?
This article explains clearly "how to divide the trademarks and time-honored brands under the names of individual businesses and companies when divorcing": first determine whether it is the common property of husband and wife, then divide it into three holding situations to talk about the consequences, then talk about the division method, the difference between time-honored brands and trademarks, proof and evaluation, and finally point out several types of high-risk actions.
1. shall be determined first: are trademarks and brand names the common property of husband and wife?
Article 1062 of the Civil Code stipulates that the income from production, operation and investment, as well as the income from intellectual property rights, etc., obtained by the husband and wife during the existence of the marriage relationship shall be the joint property of the husband and wife; in the event of divorce, the joint property shall first be dealt with by agreement between the two parties, and if the agreement fails, the court shall decide in accordance with Article 1087 of the Civil Code. Note: The law explicitly classifies the "proceeds of intellectual property" as common property, not the intellectual property itself.
Trademark rights are not only property rights, but also have certain personal and exclusive attributes, and the exclusive right of trademark is bound to the registrant. Therefore, in practice, many courts are more cautious about "directly registering the trademark change as two people", and more commonly, the property benefits of the trademark-license fees, transfer fees, profits arising from the brand in the operation-are divided as common property, or the holding party compensates the other party after the price of the trademark.
To judge who owns the trademark and brand name rights, we should focus on four points: the acquisition time (before or after marriage, the trademark takes the application date and the approved registration date as the important nodes); The source of capital contribution (whether the money for registration, renewal and promotion is common property); Under whose name is it registered; Is the holding subject self-employed, individual or company.
2. three ways of holding, three consequences
the same is a "piece of brand", hanging in whose name, the legal consequences vary greatly.
1. Individual industrial and commercial households, personal name registration
if a trademark is registered in the name of a self-employed person or an individual, and the proceeds generated by the trademark are applied for or operated by the joint property after marriage, the proceeds shall be the joint property of the husband and wife. The right to operate the self-employed, the operator's identity itself is not directly "one person and half" of the property, but the store's equipment, inventory, accounts receivable and brand income, can be divided into the scope. A common treatment is that the trademark belongs to the party that continues to operate, and the other party is compensated by its price.
2. In the name of a limited company
trademark registration in the name of the company, it belongs to the company's assets, not the personal property of shareholders, not to mention the direct division of the trademark, divorce is the equity. But trademarks are often the most valuable assets of a company, and their value is reflected in the valuation of equity. If the amount of capital contribution in a limited liability company in the name of one party is divided and the other party is not a shareholder, according to Article 73 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the the People's Republic of China of the People's Republic of China: With the consent of more than half of the other shareholders and clearly waiving the preemptive right, the spouse may become a shareholder; otherwise, the income from the transfer of capital contribution may be divided.
3. One party registered before marriage and added value after marriage.
A trademark is registered in the name of an individual before marriage, and the trademark right itself is usually his personal property before marriage, and the other party cannot directly divide the trademark. However, after marriage, the proceeds generated by the brand through licensing, operation and publicity are common property and can be divided.
Several ways of 3. division: how to divide it before landing
how to divide the entry after the qualitative is clear. This type of intangible assets is not like a house can be cut across the line, there are several common options.
- Discount compensation. Most common: The party that continues to operate acquires the trademark and pays compensation to the other party at the appraised or negotiated value, either in installments or in packages with the property and deposits.
- Valuation. When there is a big difference, a qualified institution can be entrusted to make a price for the trademark and brand name (goodwill), taking into account the popularity, service life and profitability. The cost and cycle are not low, and whether it is worth evaluating should be settled in advance.
- Licensed Use. It is agreed that the trademark shall be owned by one party and that the other party shall be licensed to use it within a certain scope and period of time, or that the proceeds of the license shall be distributed on a pro rata basis. According to Article 43 of the Trademark Law, licensing others to use a registered trademark shall sign a license contract and report it to the Trademark Office for filing and announcement. Without filing, it shall not oppose a bona fide third party.
- common. In theory, it can be agreed to be shared, but it is easy to use and dispose of the deadlock, and it is inconvenient to operate externally, so be cautious.
- Transfer split price. If both parties no longer operate, they may transfer the trademark, name and assets together (sign a transfer agreement in accordance with Article 42 of the Trademark Law and jointly apply to the Trademark Office) and divide the proceeds; The premise is that someone takes over and handles similar trademarks on the same or similar goods together.
4. don't confuse "old brand" with "trademark."
the "time-honored brand" in Ningbo's population contains several layers of things, so we can't just focus on trademarks.
1. Font size and enterprise name
the name is the core part of the enterprise name, the self-employed also has the name (including the name), by the market supervision department in accordance with the "enterprise name registration management regulations" and other registration management, carrying years of accumulated goodwill, customers and reputation. Font size is not equal to trademark, but it is often used together with trademark. If one party continues to use the old brand, it is often better to keep business than to fight for a trademark alone.
2. Change of self-employed operators: time-honored brands can continue
in the past, when a self-employed person changed his boss, he had to cancel and then re-register. As soon as he canceled, his name, font size and unified social credit code were all gone. Now, in accordance with Article 13 of the Regulations on Promoting the Development of Individual Industrial and Commercial Households, self-employed individuals can voluntarily change their operators or transform into enterprises, and directly apply to the registration authority for change registration. After the change, the original unified social credit code, font size, and establishment time remain unchanged. Relevant administrative licenses can also be extended. After the divorce, if the party who continues to operate takes over the self-employed, the brand name and "old shop" can be continued. The regulation also requires that the changed operator should settle the tax payable and properly handle the original creditor's rights and debts.
5. evidence, assessment and risk points
for the party advocating division, it is not enough to have a trademark registration certificate alone, but also to string together "acquired within marriage, joint operation and actual income" with evidence: proof of rights, such as trademark registration certificate, renewal record, business license and articles of association; Evidence of operation and income, such as license contract and filing, franchise contract, sales flow and tax payment record; Input evidence, such as payment records of registration fee, renewal fee and promotion fee; evidence of value, such as valuation reports, comparable prices. If the trademark is only registered but not actually used and does not bring benefits, the benefits that can be distributed are very limited. On the contrary, it is necessary to fix the evidence as soon as possible, especially the store running water.
1. Unauthorized transfer or cancellation of trademarks by one party
according to Article 42 of the Trademark Law, the transfer of a registered trademark requires the transferor and the transferee to sign a transfer agreement and jointly apply to the Trademark Office, and the registrant cannot unilaterally transfer at will. The evidence should be fixed as soon as possible, negotiate pressure or apply for property preservation.
2. The company's trademark is used by individuals free of charge.
The trademark is used free of charge by individual shareholders or related parties under the name of the company, which is tantamount to moving the interests of the company and all shareholders out, which will affect the valuation of the company and may also harm the equity interests of the other party.
3. Tax and business issues of self-employed renaming
the self-employed change operator must settle the tax, provide the tax clearance certificate, and properly handle the creditor's rights and debts and sold prepaid card coupons, etc. Before and after the change, the operator also needs real-name verification. If you intend to change the operator to hand over the "time-honored brand", you must sort out the tax and debt together to avoid "receiving the store but not receiving the account".
6. FAQ
q: Do I have to give half of the trademarks registered and registered in my name after marriage?
Not necessarily "one half". The law clearly belongs to the couple is the proceeds of intellectual property rights; Trademark rights themselves have personal and exclusive attributes. In practice, the court generally does not directly decide to change the trademark to be shared by both parties, but deals with the property benefits brought by the trademark, or the holding party compensates the other party after making the price. The amount of points should be judged in combination with the time of acquisition, the source of capital contribution, the contribution of both parties and the actual income.
Q: The trademark is registered under the name of the company. Can I directly request the trademark to be distributed to me during divorce?
Usually not. The trademark under the company's name is the company's assets, not the joint property of husband and wife, can not be directly divided, to be divided is the equity. If the amount of capital contribution in the name of one party in a limited liability company and the other party is not a shareholder, it shall be dealt with in accordance with Article 73 of the (I) of Interpretation of Marriage and Family: a majority of the other shareholders agree and waive the right of first refusal to become a shareholder, otherwise the proceeds of the transfer of capital may be divided.
Q: The trademark I registered before marriage made a fire with the other party after marriage. Can the other party share it?
The trademark right itself is generally still personal property before marriage, and the other party cannot directly divide the trademark. However, the income generated by the trademark after marriage is common property and can be divided. If the other party pays funds, labor and channels for the brand appreciation after marriage to make the trademark appreciate significantly, it can claim compensation for the appreciation part, but the claiming party must prove the income and contribution after marriage.
Practical Experience of 7. Lawyers
to take over such disputes, the first step is not to rush to sue, but to find out the family background of this "brand. Let the parties organize three things: first, the bottom book of rights, which lists all trademarks, trade names, enterprise names and shop names into a table, and writes down the registration subject, application date, approved registration date, category, validity period and renewal one by one, whether it is self-employed or held by the company, and what is the ownership structure; The second is the income bottom account, arrange the license contract, franchise agreement, store and online store flow, tax record and bank flow according to time to see when the trademark and brand name will really make money. The third is to put in the evidence, sort out the registration fee, renewal fee, promotion fee, site and labor expenses, and judge whether the acquisition and maintenance of trademarks use premarital property or joint property of husband and wife. The key to finding a breakthrough is to distinguish between "trademark rights and interests" and "branch equity": trademarks in the name of individuals or self-employed individuals, focusing on brand income and price compensation.
After finding out the family background, we should arrange the evidence and rhythm together. The most vulnerable part of a trademark dispute is that before the evidence is fixed, the other party has already transferred, licensed or simply given up renewing the trademark. Therefore, as soon as any sign of change is detected, it is necessary to take the lead: if it can be downloaded publicly, the trademark files, registration information, transfer and license announcements made public by the State Intellectual Property Office should be kept intact first; If you need to ask the other party or the company, such as the license contract, the company's account book and the use of the trademark, it shall be locked through written correspondence, lawyer's letter and even proof and preservation in litigation as soon as possible. The rhythm should be prioritized: if the other party may dispose of the trademark and cancel the subject, the action should be quick; If the price is not reasonable, you can take it easy. Don't talk about the relationship completely. The brand needs to be managed by people.
At the negotiating table, the line of thought should shift from "dividing things" to "counting benefits". The value of this kind of property is highly dependent on continuous operation. It is not good for anyone to split it into two halves. More realistically, the party who continues to operate will leave the trademark and name, and settle the interests of the other party in one lump sum or in installments with the assessed price or negotiated price. If necessary, it will be packaged with real estate, deposits and equity. The parties should also be reminded to avoid several common mistakes: first, only focus on the trademark registration certificate and ignore the same valuable things such as the name, license qualification and customer channels; The second is to believe that the other party's "brand is worthless", without evaluation or evidence, and the final compensation is far lower than the actual one. Third, the agreement only says "the trademark belongs to a certain party", however, it does not write whether to cooperate with the change, whether the license will continue, how to distribute the proceeds, and how to deal with the breach of contract. It is suggested that trademarks, trade names, equity and real estate should be included in the overall divorce plan, with a clear discussion and a paper drop. If there is really no agreement, don't delay, and timely determine the share and compensation through litigation.