On Legal Issuses Of Trademark Fair Use

Nowadays the cases about trademark fair use become more than before. The typical cases in China are XUEHUA flour case,SANZHUJUN case, and DENGYING beef case.In foreign countries there are so many complicated cases,for example Playboy v.Terri Welles,K.P.Permanent v. Lasting Impression Inc.,and The Beach Boys case.These cases remind us the words of Justice Holmes:the right of trademark is to prevent the third party from selling his own goods as those of the proprietary of this trademark.If using of trademark is to tell the truth and not deceit the public, we have no reason to prevent.Trademark is not taboo.In the field of trademark fair use,compared with flourish cases and conflicts,the native legislation has shortcomings and the relative system is deficient.Compared with the comprehensive and thorough research in foreign countries,native scholars pay so little attention to this field and discuss it few times.So issues about trademark fair use are very important in theory and practice.This essay is composed of four parts.Partâ… ,the author sets forth the definition of use of trademark,and then introduces the ideas about trademark fair use.Based on this,the author induces the conception of trademark fair use.I classify the trademark fair use into two types.One is commercial fair use,and it includes descriptive and nominative fair use. The other one is non-commercial fair use,which includes news report, codification of dictionary and parody.At last,the author compares the fair use of trademark and copyright.Partâ…¡,from the aspect of promoting market competition,protect the interests of customers,preventing the abuse of trademark right,and promote the free speech right,the author justifies the system of trademark fair use,and puts forth the value of this system.Partâ…¢,based on the situation and judicial experience of our country, reference to the legislation of other countries,I sum up the criterion of trademark fair use and analyse the typical domestic and foreign cases.Partâ…£,in order to solve the problems of our legislation and settle the disputes in practice,the author puts forward the legislative suggestion of trademark fair use as a conclusion.