On Theoretic Issuses Of Trademark Fair Use

As an important part of the theory of limitation to trademark right, Trademark Fair Use refers to the conduct, using the identical or similar marks, not deemed as trademark infringement under a certain conditions. The Trademark Fair Use theory derives from the society phenomenon: the exclusive rights of registered trademark have expended so widely that may block other members to perform their social rights. In order to balance the interests between trademark owners and public people, the theory of trademark fair use has been put forward, continually revised and improved through the judicial practice, trying hard to reach the real intention of the theory that not only protect the trademark exclusive rights but also safeguard the sharing nature of the social words. The article points out there are some shortages existed in theory and practice areas of Trademark Fair Use by analyzing and discussing cases and doctrines at home and abroad, and submits the relevant solutions to specific problems. At the end of this article, there are some suggestions for building our Trademark Fair Use system. There are four parts in this paper to discuss the existed problems at present.Chapterâ… is to analysis the cases concerning with the fair use. To show the domestic practice conditions of trademark fair use well, 50 relevant internal cases are collected. After regulating and studying the cases and the present theories, some problems are found, for example lack of the unified judging standard, the less effectiveness of existing law and regulations or misunderstanding to the application premise of trademark fair use. And there are the misunderstandings to the object and essential factor of trademark fair use in this research.Chapterâ…¡is about the application premise. The application premise of trademark fair use should include two parts: the conduct of using marks should meet the needs of the external form of trademark infringement, and the user should have a right of use on the marks at some extent. To the latter premise, the validity of enterprise's name and other factors should be examined initially.Chapterâ…¢is about the theoretic issues of trademark fair use, including the object and types of the trademark fair use, the relationship between likelihood of consumer confuse and fair use. Trademark Fair Use in essence is the fair use on the trademark law. The object of Descriptive Fair Use is not the owner's trademark but the rights the user had and the words in the public area. Trademark fair use can be classified with two types: Descriptive Fair Use and Nominative Fair Use, according to whether the mark using is in the trademark sense. On the problem of the relation between likelihood of confuse and fair use, reviewing American judicial practice during 2004 to 2009, likelihood of confuse can be coexisted with fair use. If confuse becomes the essential term, especially after the third revising of the Trademark Law, the likelihood of confuse will not exclude the defense of trademark fair use.Chapterâ…£is about the legislative suggestions of building and proving the domestic trademark fair use system. The scope of application in present regulations is not wide enough, and the less specific stipulation is also the problem. This paper raises the corresponding solutions for problems above and drafts the specific clauses consulting with domestic and overseas legislations and some scholars'propositions.