On The Trademark Fair Use

The paper is composed of four parts.Part I is an overview of the trademark fair use, focusing on the meaning and significance of the trademark fair use. In the author's opinion, the definition should cover all types of the trademark fair use. The trademark fair use is a use of any person other than the trademark owner with good faith under the permission of trademark law, which should not be regarded as trademark infringement. There are broad sense and narrow sense in the meaning of the trademark fair use, and the narrow sense is the commercial fair use. The paper focuses on the narrow sense. The establishment of fair use doctrine satisfies the need of limitation on trademark rights, and it is necessary to protect consumers the right to learn the truth and the right of free speech.Part II is about the types of trademark fair use. In the author's opinion, the trademark fair use in commercial area includes descriptive use, nominative use, and direct comparative advertising. The descriptive fair use analysis is appropriate where a defendant has used the plaintiff's mark only to describe his own product or service. Conversely, the nominative fair use analysis is appropriate where a defendant has used the plaintiff's mark to describe the plaintiff's product or service, and where a defendant wants to indicate the intended purpose of his product or service, in particular as accessories or spare parts. In this part the author analyzes the specific types of commercial fair use with domestic and abroad cases.Part III is about the estimating elements of commercial trademark fair use. Since trademark fair use is the limitation on trademark rights, it is necessary to discuss the estimating elements of the commercial fair use. In the author's opinion, a trademark fair use must satisfy the following estimating elements at the same time, which are subjective element, objective performance element and objective effect element. Lack any of the there elements will not constitute a commercial fair use.In part IV the author points out the disadvantages of Chinese current legal system of the trademark fair use, which are the lower legal hierarchy, the narrow application scope and the poor operationality. In the end the author also gives an advice to Chinese legislation on trademark fair use in the future.