(1) Borrower's investor qualification risk
This risk involves not only the current intellectual property laws and regulations, but also other laws and regulations, such as civil law and company law, including the lack of important legal documents related to borrowers, or the failure to perform necessary annual inspection, registration and change procedures, which leads to the inability to meet the application conditions of banks.
1, the lack of legal documents means the lack of rights certificates, which makes intellectual property rights unable to be fundamentally established. As a right, intellectual property should have a certificate of rights. Once some rights certificates are lost or legal documents that can prove the relationship between the rights granted are lost, it will be impossible to verify or determine the ownership of the rights.
2. China stipulates that intellectual property rights, especially patents, must go through some necessary procedures such as annual inspection, registration and change. Some companies can't make loans if they don't perform their duties.
When the loan period, or the time of loan application, spans the annual inspection year, such as a company's loan in April, the loan period should be checked from June to April of the following year. In the meantime, lawyers and bank customer service managers are required to urge them to carry out the necessary annual inspection, otherwise it will bring financial risks.
4. Investors are not the owners of intellectual property rights. The investor is the guarantor, which can be a lender or a guarantor, but it must be the owner of intellectual property rights. If investors do not have official authorization documents from the state to prove that they are the owners of intellectual property rights, it will definitely cause financial risks.
(2) Risks caused by defects in the collateral.
1. Pledges (trademarks or patents) are not authorized by the State Trademark Office or China National Intellectual Property Administration according to law, including those that are under application and have expired. In this case, the company cannot get a loan.
2. The ownership of the pledge is unclear. First of all, the pledge must belong to the borrower or the investor, otherwise its ownership may involve many problems in the company law. It may lead to disputes, disputes or lawsuits on ownership issues among borrowers, investors or related third parties after the loan is issued, which may lead to the freezing, sealing up or unrealizability of the pledge, and may also directly lead to the borrower's inability to repay the loan.
3. There are legal risks such as infringement disputes, early termination or being declared invalid. According to the provisions of China's patent law, the patent right can be declared invalid at any time, so this legal risk is not a defect of the pledge itself, but a secondary risk. This requires some legal precautions in advance to ensure the safety of borrowing.
4. Other legal defects.
(C) the risks brought by the current administrative management system
1. The ownership is disputed and the rights are unstable. Disputes over the ownership of patents and trademarks may be submitted to the Patent Reexamination Board or the Trademark Review and Adjudication Agency. Once reviewed, the original ownership status may be overthrown. In this way, the ownership of intellectual property rights is in a relatively unstable state, which is not conducive to protecting the rights of pledgees and related beneficiaries.
2. The pledge of intellectual property rights shall be registered. China National Intellectual Property Administration or Trademark Office is the statutory administrative department for the pledge registration of patent rights or trademark rights. Because the AIC is not connected with China National Intellectual Property Administration and the State Trademark Office, if the investor's industrial and commercial registration is changed, but the corresponding obligee is not changed in the State Patent Office or the AIC, some enterprises will take improper measures to handle the registration procedures, which will affect the rights of the pledgee.
3. publicity. How should the trademark be publicized after pledge? The current laws and regulations do not clearly stipulate this, so it is difficult for the public to inquire in some convenient ways. This makes it difficult to examine the pledge of trademarks.
4. Disclosure of relevant information. The relevant administrative departments do not disclose some information about intellectual property rights to the public. The public cannot easily inquire.
5. Be cautious. When the pledge registration department of the State Trademark Office requests the pledge, it shall pledge the same or similar trademarks as the pledge. How to judge the identity or similarity of trademarks is too subjective, which leads to the excessive discretion of trademark office examiners and increases the difficulty of quality examination.
(4) Other risks
1, the risk of incomplete bank loan procedures. The operating rules and basic policies of banks may not fully comply with the provisions of laws and regulations, thus bringing legal risks or loopholes.
2. Deal with risks. There is no mature and unified intellectual property trading market in China, so it is relatively difficult to realize intellectual property rights, and there are certain disposal risks.
3. Cross-risk and value evaluation of law. Law is responsible for the qualitative aspect of matter, while evaluation is mainly to evaluate the stipulation of its quantity, and there are some vague overlapping parts between them. At these intersections, lawyers and evaluation agencies need to cooperate. Even if there is a good market prospect, the quality with legal defects will lead to the distortion of its value evaluation; On the contrary, it is meaningless to legally meet the requirements but have no value. In view of the above risks, Bank of Communications has taken the following measures for the intellectual property pledge loan model:
(1) The design and setting of law firm's participation mode and process. Lawyers use professional knowledge to participate in the planning, design and process formulation of intellectual property pledge loan model. Prevent the occurrence of risks from the system, and once risks occur, they can also be effectively controlled.
(2) Lawyers participate in all-round financial services such as pre-loan review, post-loan management and pledge disposal. Law firms with qualifications recognized by banks intervene in financial services, and investigate, witness and review the borrower's qualifications, loan purposes, pledge ownership, pledger's qualifications, borrower's loan purposes, repayment sources and operating conditions. From the perspective of the legal profession. Post-lending management is mainly to monitor major business changes after lending, such as the change of collateral or the closure and merger of the company. Guarantee institutions mainly monitor their operating conditions and financial conditions before lending. If there are legal risks during the loan period, they should be dealt with in time and make legal preparations for the disposal of the pledge. The lawyer service should follow up the disposal of the pledged property and make legal preparations for the normal repayment and disposal of the pledged property. At the same time, the asset appraisal institution should also consider the future disposal in the early evaluation.
(three) the establishment of banks, lawyers, evaluation and guarantee institutions to participate in the financial platform. Risks are not isolated and static, but are interrelated before and during the loan-a risk and a legal fact are interrelated with other facts, so from the perspective of risk prevention, only banks, lawyers or appraisers are incomplete. The following conditions are required for these intermediaries to provide these services at the same time: they are independent of each other and do not collude with each other, but they must reach an understanding in the end.
(four) to participate in the drafting and revision of some management measures of the relevant administrative departments, and to solve the problem of risk prevention from the source.