Research On The Theory Of Trademark Fair Use And The Improvement Of The System

Differences in commodities require trademarks,but with the development of commodity exchange,trademark plays an increasingly important role in promoting commodity exchange,standardizing market order,promoting the upgrading of industrial structure of enterprises and improving national competitiveness.The function of trademark is no longer limited to the identification of sources,such as quality assurance function,advertising function and cultural function began to get more recognition and attention.In this context,it seems to have become a social consensus to strengthen trademark protection,which partly leads to the realization of the private interests of trademark owners to promote the expansion of the scope of trademark rights control and matters through court litigation or lobbying,the most typical of which is well-known trademarks can be protected against dilution.The rights of well-known trademark owners are no longer limited to preventing others from using in the sense of identifying sources.Such expansion of rights,if boundless,will inevitably affect the free competition that is the foundation of the economy,and may also restrict the freedom of speech or expression of the public.One of the main policy objectives of trademark law is to promote economic and social development,while protecting trademark owners from confusion,the law needs to maintain the space for free competition to promote economic development,at the same time,trademark law should also be able to protect the public’s freedom of speech and expression will not be unreasonable restrictions because of excessive trademark protection.It is under the influence of this policy objectives that the court,proceeding from the public interest,imposes various restrictions on the continuous expansion of trademark rights,so as to achieve the needs of social policy.The protection and restriction of rights are two aspects of the same problem.The restriction of trademark rights can protect the private interests of trademark owners while not damaging the interests of other market competitors and the relevant social public.From this point of view,the system of trademark rights restriction can not only restrict trademark rights,but also protecting the social interests of trademarks.Trademark fair use is the typical system of trademark rightsrestrictions.The concept of fair use in trademark law originated from the trademark right holders trying to expand the rights of trademarks for the rights of symbols to limit the other using trademarks.From the perspective of competitive freedom,the restrictions on trademarks include descriptive fair use,nominative fair use,functional fair use and customary fair use,of which the most important are descriptive fair use and nominative fair use.The first fair use system in the trademark law system is the descriptive use of the original meaning of the trademark by other competitors.For the original meaning of trademarks,they are in the public domain from the beginning,which is a public resource available to everyone,and the registered trademark owners of such trademarks,to a certain extent,obtain the "benefits" of the sale of goods or services through the use of this public resource.This kind of public resource will not magically disappear from the public domain just because it becomes someone’s trademark or is included in someone’s trademark.Therefore,other competitors also have the right to use this public resource in good faith in the original meaning of the trademark or the term containing the trademark.Nominative fair use of trademark is developed from the case law of the United States,which is mainly based on the need of the general public to know the true relationship between specific goods or services.Nominative fair use also prevents excessive expansion of trademark rights.However,for the two main types of fair use,the relevant legal documents and theoretical studies in China generally take "confusion of impossibility" as the core to construct the criteria for judging fair use,which makes the fair use system lose its significance.In practice,such regulations or theories are easy to produce "chilling effect",other competitors often do not use the trademark for any possible use in order to avoid possible infringement litigation,which in fact leads to the expansion of trademark rights.Therefore,from the perspective of competitive freedom,it is not only necessary to clarify the types of fair use,but also necessary to clarify the criteria for judging fair use in trademark legislation,and this criterion should not be centered on the "confusion of impossibility".From the perspective of freedom speech.In various trademark infringement litigation,trademark owners try to claim their trademark rights on any occasion,even including trying to prohibit non-commercial expression.But in today’s society,trademarks have not only had an impact on people’s consumption,but also on the way people express themselves and even talk about the world.With the continuous use of trademarks,besides the information of identifying sources,some well-known trademarks inevitably transmit brand information,which includes not only the information of identifying sources,but also the information of brand culture,corporate image and consumer status,which undoubtedly endows trademarks with more communication space.The law should allow the public to use the trademark expressively while protecting the source function of trademark.If the trademark rights are expanded to absolute symbol rights,the freedom of speech and expression of the public will be restricted.In addition,commercial speech is also an important part of freedom of speech,which inevitably involves the expressive use of trademarks,but as long as such use does not cause consumers to confuse the source of goods or services,nor does it cause the dilution of well-known trademarks,it should not be recognized as infringement.The construction of trademark fair use system can respect the rights of trademark owners,at the same time,minimize the anti-competitive effect of trademark protection and protect freedom of speech.Therefore,most countries have established trademark fair use system through legislation,but the common problem faced by these systems in the establishment process is how to build a set of specific rules that can balance the interests of trademark owners,other market players and the relevant social public,so as to minimize the uncertainty of the system.The system of trademark fair use in the Trademark Law of China was established relatively late,and the legal documents about trademark fair use in the early stage only existed in the lower legal rank of department regulations,normative documents and local judicial opinions.It was not until the amendment of the Trademark Law in 2013 that the fair use clause of trademarks was formally added,but the relevant provisions only contained the provisions of descriptive fair use and functional fair use,without considering the balance of the interests of all parties in other use scenarios,which resulted in the indicative use and customary use of trademarks without statutory basis.In addition,the construction level of trademark fair use system in China’s Trademark Law is still relatively low,and the design of relevant provisions is relatively rough,which only stipulates fair use through enumeration,but does not involve the judgment of fair use,resulting in difficult operation in judicial application.Although some local judicial opinions have further explanations on trademark fair use,the application scope of local judicial opinions is limited,and there are obvious inconsistencies in local judicial opinions,especially in the interpretation of judgment standards,which can easily lead to disputes in judicial practice,which to a certain extent affects the fair use behavior of non-commercial trademark holders.At present,although there are provisions about the fair use of trademarks in the Trademark Law of our country,these provisions are not a set of legal system with complete functions,so it is necessary to revise and improve the relevant provisions.As a country with a tradition of written law,China should build a set of specific rules in the Trademark Law that can balance the interests of trademark owners,other market participants and the relevant social public.According to the characteristics of different types of fair use,the relevant legislative models should adopt comprehensive legislation and general legislation,and in the selection of types of fair use,it is suggested that descriptive fair use,nominative fair use,functional fair use and customary fair use should be included.Specifically,the provisions on nominative fair use and customary fair use can be added to Article 59 of the Trademark Law,and the provisions on descriptive fair use and functional fair use can be improved at the same time,so as to reflect the value pursuit of balancing the interests of all parties.In addition,the "rationality" judgment standard of fair use should be clearly defined in the Trademark Law,so as to guide judicial practice,unify judicial opinions and avoid confusion in judicial practice.In the judgment of "rationality",factors usually need to be considered include: the purpose of using trademarks,the nature of the trademarks,the way of using trademarks and the impact of use on trademark owners.