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paper代写-The Goodwill Right

2018-06-13 | 来源:51due教员组 | 类别:Paper代写范文

下面为大家整理一篇优秀的paper代写范文- The Goodwill Right,供大家参考学习,这篇论文讨论了商誉权。商誉权是商誉在法律上的反映,是指商誉主体依法对其创造的商誉所享有的专属权和不受侵害权。商誉权作为一项民事权利,已成为法学界的共识。从内容上看,商誉权具有人身性和财产性的双重内容,与传统的知识产权相似。另外,在实践中,商誉权作为一项知识产权,已日渐得到世界各国的普遍承认及保护。

Goodwill Right,商誉权,英国论文代写,论文代写,paper代写

Goodwill is a reflection of goodwill in law, which refers to the exclusive rights and the right to be infringed by goodwill subject to the goodwill created by the law. As a civil right, goodwill right has become the consensus of law circles.

However, there are different views on the right of goodwill to belong to the category of civil rights.

At present, there are three kinds of theories about the legal attribute of goodwill right: This theory equates goodwill with reputation right, and holds that goodwill and reputation right belong to personality right. For the legal person, the right of reputation of the legal person and the right of goodwill of the legal person are not different in essence, the right of goodwill is the core content of the right of reputation, the goodwill reflects reputation, the two concepts are unified. The difference between legal person's reputation right and goodwill right mainly lies in the different subject of infringement right.

When an enterprise's reputation is infringed by the ordinary person, its infringement is the reputation right, when an enterprise's reputation is infringed by its competitor by the counter unfair competition law standard means, its infringement is the goodwill right. This theory is actually a kind of compound right, which holds that goodwill has dual attributes of personal rights and property rights. The infringement of the right of goodwill not only infringes the intellectual property rights of the subject, but also violates the right of personality. This kind of tort is a kind of concurrence tort, its infringement object has two, one is the commodity, the performance is the infringement commodity reputation, the second is the goodwill main body, manifests is violates the commercial prestige. When the object of infringement is mainly commercial reputation, and the competition and infringement of commodity reputation, goodwill right is a kind of personality right. In this case, goodwill infringement is regarded as an infringement of reputation.

On the basis of admitting the right of goodwill to the property of personality right, this theory holds that the defect of the theory of personality right lies in neglecting the property of goodwill right, and the right of goodwill is mainly embodied in the rights of property interests. Scholars who hold this view believe that the essence of goodwill is an objective social evaluation, the creation of mental and intellectual, not the material form, and the immaterial nature of goodwill determines the property of intellectual property right of goodwill. Furthermore, goodwill is proprietary and relevant to a wide variety of information, which is combined with a variety of tangible materials to conform to the inherent characteristics of intellectual property. From the content, the right to Goodwill has a dual content of personal and property, similar to the traditional intellectual property rights.

In addition, in practice, the right to goodwill as an intellectual property rights, has been increasingly recognized and protected by all countries in the world. The key to classify the right of goodwill in intellectual property is the property of intangible property, or the immaterial nature of its object. In this sense, we can say that the right to goodwill is consistent with the inherent characteristics of intellectual property. The immaterial nature of object is the essential characteristic of intellectual property, the emergence of goodwill is due to the business of the main body in the management of advanced business philosophy, scientific management methods, superior geographical location, continuous technological innovation and excellent staff quality so that enterprises have won the recognition and goodwill of customers, thus forming a huge economic value. This recognition and goodwill constituted by a variety of factors exist only in the minds of the customers and do not have tangible physical forms.

Moreover, from the perspective of the formation of goodwill, goodwill is the crystallization of the operator's comprehensive creative work, which condenses the intellectual achievements of the operators and should be the object of intellectual property law protection. From the content, the right to Goodwill has dual attributes of personal rights and property rights, similar to the traditional intellectual property rights such as copyright, patent and trademark. The right of goodwill has property, which is a special property interest of immaterial form. Goodwill, as the recognition and evaluation of the quality reputation of the commodity or service provided by the social public, can bring great economic benefits to the commercial subject. At the same time, goodwill right also has personality attribute, goodwill is the social public to the commercial main body's good evaluation, one of the most important aspect is to the commercial main body's management reputation or is the commercial subject and the good relationship between the customer good appraisal. It is established with the establishment of commercial subject, always with the specific commodity producers or operators, leaving the specific commodity producers or operators, it does not matter the right to goodwill.

Goodwill has a proprietary nature. That is, goodwill can only be enjoyed by commercial subjects, and other legal persons who do not engage in commercial activities do not enjoy goodwill. The goodwill of an enterprise can only belong to the enterprise that produces the goodwill, it cannot exist separately from the enterprise, nor can it be transferred to other people alone. And goodwill is the creation of human brain, intelligence, its essence is a variety of information, these information and a variety of physical materials, in line with the inherent characteristics of intellectual property. Intellectual property protection object is the knowledge product, the knowledge product has the non-material characteristic, always must through certain objective form manifests, causes the knowledge product creator person to be able to understand, this kind of objective manifestation is to its intellectual property protection condition one.

Through the above analysis, we can see that the right of goodwill conforms to the characteristics of intellectual property. The protection of goodwill as a kind of intellectual property rights conforms to the principle spirit of the WIPO Convention, conforms to the development trend of goodwill protection, conforms to the requirement of market economy development. As expressly provided in article 2nd, 8th of the WIPO Convention, intellectual property includes: rights relating to literary, artistic and scientific works ... Rights relating to commodity trademarks, service marks, trade names and other commercial markings and rights relating to the prevention of unfair competition all other rights arising from intellectual creations in the fields of industry, science and literature and art. The scope of the definition can be said to encompass all the achievements of human intellectual creation, it should be considered that it covers the right to goodwill, especially the "rights related to trademarks, trade names and other commercial logos", and the rights to prevent unfair competition, which embody the protection of goodwill right. Therefore, it is in accordance with the principle spirit of the WIPO Convention that the right of goodwill belongs to the category of intellectual property. In addition, in practice, as an intellectual property right, goodwill has been widely recognized and protected in the world, and goodwill right is classified as "stopping unfair competition" in intellectual property rights system. In international multilateral investment agreements, goodwill and copyrights, patents and trademarks are all forms of assets that can be used for investment.

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