Research On The Fair Use Of Trademarks Of The US And China

The fair use of trademarks as an important defense of trademark infringement playsan important role in prevention of abuse of trademark rights and protection of the rightsand interests of others and social public interests. There are a lot of issues about the fairuse of trademarks in real life, but the rational regulation has not been set down intrademark law in our country, which brings some difficulties to the administrationenforcement and judicial trial. With the increasing protection of intellectual property andthe improvement of people's awareness of protection of intellectual property and lackingattention given to restrictions of intellectual property rights on the contrary, moretrademark owners abuse their rights. The system for fair use of trademarks can balancethe interests between trademark owners and others as an effective system to prevent theabuse of trademark rights. In this paper, the United States and our country's legislativeand judicial practice for this system are preliminary analyzed, hoping to make somecontribution to the improvement of trademark law.The partâ… is about the meaning of the fair use of trademarks which has two types:non-trademark manner fair use and trademark manner fair use. The fair use of trademarksis the use of the same or similar mark, for non-owners of a registered trademark, withoutobtaining permission of the mark'owner which is not considered as infringement. Fairuse of trademarks can be divided into non-trademark manner fair use and trademarkmanner fair use by the original meaning that whether the non-owners plan to use astrademarks.The partâ…¡and partâ…¢are about the two types. In these two parts, first we analyze the legislation and cases of the United States. Then, we analyze that of our country. Nontrademarkmanner fair use is that the owner of a registered trademark cannot prohibitnon-owners to use the same or similar marks'primary meanings to describe their goodsor services in good faith, without that the use is likely to result in consumer confusion.Trademark manner fair use is that the owner of a registered trademark cannot prohibitnon-owners to use the owner's trademark to specify a certain relationship between thegoods or services of themselves and that of the mark'owner, without that the use is likelyto result in consumer confusion.In the last part, we analyze the lack of legislation on fair use of trademarks in ourcountry and give our legislative proposals.The fair use of trademarks is not contradictory to the trademark infringement. Itspurpose is not the restriction of the rights of registered marks, but the prevention of theabuse of trademark rights. Though most scholars think trademark fair use is a kind oflimitation on the trademark rights that is speaking from a broad sense, trademark fair useis not limiting the rights in a narrow sense, because fair use is not considered asinfringement of trademarks. It is necessary to establish reasonable system for the fair useof trademarks, though we can distinguish fair use from infringement by the touchstone oftrademark infringement.