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yanmei shao

Intellectual property research in aspect of mergers and acquisitions

Time:2015-01-17   Click:
Intellectual property research in aspect of mergers and acquisitions
yanmei shao

 

With regarding to the financing in aspect of merger and acquisition,   a question will be arisen- does it have anything to do with the intellectual property? the answer is ‘yes’.

 

Merger. a. and consolidation; amalgamation. This term is distinct in denoting types of corporate restructuring. in merger, one company is absorbed by another, the latter retaining its own name, identity, articles of incorporation, and by laws, and acquiring all the assets, liabilities, and powers of the absorbed company, which ceases its separate existence. in a consolidation, the corporations that are absorbed into a new entity lose their previous identities to form a new corporation. in english law, the different forms of corporate union are referred to as amalgamation. as one writer states in recommending this word, “it is convenient to have some such inclusive term for corporate unions, as they have many elements in common.”[1]

 

b. And bar. In the law of procedure, merger describes the effect of a judgment for the plaintiff. such a judgment extinguishes any claim that was the subject of an earlier lawsuit and merges it into the judgment, so that the plaintiff’s rights are confined to enforcing the judgment. bar, on the other hand, descries the effect of a judgment on the merits for a defendant. such a judgment extinguishes any claim that was the subject of a lawsuit in which judgment was rendered, including parts of that claim that were not raised in the earlier lawsuit.

 

c. Of law and equity. In traditional legal idiom, the joining of the procedural aspects of law and equity is termed “merger”---e.g.: “the history of the merger of law and equity, first in new york under the old code, and later in twenty-nine other states and territories in which codes similar to the new york code were adopted, and in england by the judicature acts, which took effect in 1875, has been covered in chapter ii.” william f.walsh, a treatise on equity 96 (1930).actually, despite walsh’s suggestion that merger did not occur in england until 1875, the fusion of law and equity began in that country with the common law procedure act 1854.

 

d. Doctrine of merger. This phrase means that something of greater importance subsumes something of lesser importance, but the context determines the precise signification. in the law of contract, for example, merger refers to the substitution of a superior form of contract for an inferior form, as when a written contract supersedes all oral agreements and prior understandings. hence, a merger clause (also know as an integration clause) states expressly that the contract has this effect.

 

 

Those are the mergers and acquisitions in the legal sense.

 

In this period (late 18th and early 19th centuries), with the development of economy of this era, the main role and function that trade mark law play is to indicate the origin and ownership of goods. for example, farmers commonly branded cattle and earmarked sheep as a way of identifying their livestock. in a similar way, merchants also marked their goods before shipment so that in the event of a shipwreck, any surviving merchandise could be identified and retrieved. in china, since song dynasty, the use of trade marks had had been prevalent such as signal which prove quality of the papers especially for printing. in 1904, the first trade marks law was legislated in china.

 

Most accounts of the history of trade marks tend to focus on two intertwined themes. one is a history of the social practices and understandings attached to the activity of applying marks to goods; the other is a positivist history of trade marks law. these two histories are often conflated in a way which suggests that the law inevitably evolves with, or ought to reflect the changes in, the nature and function of marks.[2]during the last 40 years, there has been a dramatic increase in advertising, on television and commercial radio, in newspapers and magazines, and on hoarding. one of the trade mark law is to signify that all goods or services bearing the trade mark come from a single source (the indication of origin function). the common law view was that the only function of trade mark was to indicate the source from which the good or services emanated. the inconvenience of the origin function is that:

  • The average consumer neither knows nor cares about the precise identity of the originator of the product.
  • The trade mark cannot truly be treated as an item of property in its own right, and so cannot be licensed or assigned.

 

When china began with her economical reform since 1979, she has had been experiencing twenty-six years so far. the operation of chinese enterprises has been gradually more and more intensified. according to the report of  the research was launched at a seminar in beijing, hosted by the welsh development agency (wda) and the chinese academy of international trade & economic cooperation (caitec), nearly 50% of chinese firms surveyed intend to “go global” and set up overseas operations within the next two years, confirming chinese companies’ emergence on the world stage. the research, which involved the questioning of senior executives at 102 internationally-active chinese enterprises, is thought to be the first of its kind in china.   in response to a question about when they intended to set up an overseas base, 48.4% said within the next two years.  the study was conducted by caitec - an institute under china’s ministry of commerce - and sponsored by the wda’s asia pacific team. [i]

 

Another pragmatic question will be arisen-how can our enterprises to “go global”. during 1980s, the majority of the foreign companies enter into chinese marketing with the forms of joint venture or choosing a chinese company as agency to singly selling their product as the first step to enter into chinese marketing,.in 1990s, foreign company started to establish manufacturer in mainland of china for sake of producing goods and selling overseas. for example, when i worked in raymarine, a world leader in marine electronics develops and manufactures the most comprehensive range of electronic equipment for the recreational boating and light commercial marine markets. designed for high performance and ease-of-use the award-winning products are available through a global network of dealers and distributors. the raymarine product lines include radar, autopilots, gps, chartplotters, instruments, fishfinders, communications, software and systems. their sole agency in china is sunshine raymarine electronics co., ltd. the form of corporation is join venture. this is a typical case that our national electronic enterprise introduces to the ship-owners in china various advanced and reliable marine electronic equipment, including two –way radio, sart, epirb. vhf radio, fishfinder, radar, gps, gmdss station etc.

 

  . Therefore, in the period of 1980s and 1990s, chinese enterprises are mainly as import and export, however, our enterprises omitted to establish and improve on their own brand. in the short- time, such method could help and support our own national enterprise to import the advanced technology of foreign company, nevertheless, in the long-time, our enterprise always follow the western advanced technology but could not be independent. in this sense, lenovo become the first one who tried to bite the crab’. from the first step to change its name to carry out merging pc business of  ibm, lenovo-a chinese non-state run company, depending on technical innovation gave account of good example while they emerge into the global competitive stage.

 

Thanks for the head of department of affairs of the americas and oceania, mr. he ning, who answers the inquiries about the intellectual property which influence the trading between china and america. he replies that to protect intellectual property and safeguard the benefit of interested person are not only of necessity for the purpose of establishing international faith and launching international cooperation but also being improved the market mechanism and accelerating it of china herself. the government of people’s republic of china is responsible, in the respect of protecting intellectual property; the attitude and activities of chinese government is unequivocal. within twenty years, people’s republic of china has both established the sound and safe system and, meanwhile, strengthened the enforcement of intellectual property right through a series of measure. the government of people’s republic of china has promoted the protection of intellectual property as strategic level. at present, chinese government has been making great effort to implement method of social science and development; enhancing structure of industry and encouraging the innovation and creation. we regard that which whether the intellectual property right will have been protected indeed or not is one of the key point for sustained and stable growth of national economy in the approaching ten or twenty years. china as one of the developing country, she has limited financial and material resources. the protection of intellectual property is a long-term and tough work. the government of people’s republic of china is willing to strengthen wide-ranging corporation with every countries including united state and international organisation. we all will be contributed to give an impetus for the form of favourable atmosphere and system of respecting knowledge and advocating science.

 

It is worthwhile to mention a new form of corporation named consortiums. in term of commerce, it means temporary association of a number of countries, companies, banks, etc for a common purpose or a group of companies or people with similar interests or  aims who have agreed to work together. china anhui for international cooperation techno-economic cooperation is the first company in anhui province since millennium who has undertaken the most number amount of contractor. owing to the large-scale of international cooperation which is related to international financing and banking, international electromechanical product trade international shipping and another aspect. with more and more our state-owned cooperation “goes global”.  the law does play more and more important role between even multinational corporation. that which is like during the interview of head of department of import and export of electromechanical products, when the question was inquired what he considers about the role of intellectual property such as patent and trademark play in area of processing and export. the question is responded that china has been the third trading country in respect of the quantity of the goods and commodities, nevertheless, the quality of the goods and commodities are not fairly competitive. we will actively guide our mechanical and electronic enterprises to enhancing independent capabilities and abilities of innovation and creation, supporting export of independent intellectual property and brand, accelerating industry of mechanics and electronics and enhancing international competitively abilities, propelling and change the increasing way whose export of mechanical and electronic goods and promoting the increasing quality and efficiency in accordance of method of  social science and development.

 

 

 

 

 

 

 

 

 

 



[1] h.w. ballantine, ballantine on corporations s288, at 680-81 (rev.ed.1946).

[2] f.schechter, the history foundations of the law relating to trade marks (1925); g.ruston,’on the origin of trade-marks’(1955) 45 tm rep.127 (tracing 6,000 years of use); t.drescher,’the transformation and evolution of trademarks: from signals to symbols to myth’ (1992) 82 tm rep 301, 309-321. scandecor  development ab v. scandecor marketing ab [2002] fsr (7) 122,128-138 (lord nicholls).



Personal statement: the author promises that this piece of work is created originally. the author takes this opportunities to thank for all the support and help from my tutor markwing,  simon lacey and professor shanqing shao and all colleagues in raymarine.