Abstract:
The inherent advantages of the trust system align closely with the legal and practical features of intellectual property (IP). Driven by national policy initiatives, there is clear demand for its application in the IP field. China currently faces institutional impediments, including uncertainty as to the ownership of trust property, an underdeveloped trust registration regime, and incomplete rules on trustees’ duty of loyalty. In the early twenty-first century, Japan developed an open, flexible, and modern trust law framework through reforms to the Trust Act and the Trust Business Act. Specifically, Japanese law expressly provides that the trust property shall vest in the trustee upon the establishment of the trust; it establishes trust registration as a central element of the trust system, generally adopting a registration-based opposability regime while making registration a constitutive requirement for the transfer (or vesting) of industrial property rights into the trust, thereby strengthening legal certainty and transactional security for industrial property trusts; and it sets out an enforceable general clause on trustees’ duty of loyalty, together with detailed provisions addressing restrictions on competitive conduct, defenses and exemptions from liability for breaches of the duty of loyalty, and the legal consequences of such breaches. China should draw on the above legislative experience of Japan to remove existing institutional obstacles and enable IP trusts to better support China’s innovation-driven economy.