Trademark Fair Use System Research

Trademark fair use is an important defense in trademark infringement allegations. It is a crucial part in preventing abuse of trademark rights, protecting the legitimate interests of non trademark owners and public interest. China Trademark Law has been amended twice, but it still doesn't have trademark fair use articles. As a complement to the Trademark Law, the Implementing Regulations of the Trademark Law has adopted trademark fair use system for the first time. However, unfortunately, its article is too general and unmanageable so that it has brought difficulties to our law enforcement and justice administration. Therefore, my paper focuses on correcting and improving China's trademark fair use system by discussing basic theories of trademark fair use and analyzing specific fair use types. The author proposes some practical standards and suggestions about how to distinguish trademark fair use situation, and the author wishes this paper can be helpful in China judicial practice and trademark legislation.This paper has four chapters.The first chapter introduces the basic theory of trademark fair use. This chapter primarily introduces the concept of trademark fair use, and then it discusses the object, scope and classification of fair use which are subjects scholars are mostly debating about. Then this chapter analyzes the meaning of trademark fair use in legal theory basis and practical basis. The author thinks trademark fair use means that under certain conditions, if good-faith non-trademark owners fairly use other people's trademarks or words which are similar or the same as other people's trademarks, this kind of use is not a trademark infringement.The second chapter is about content of descriptive trademark fair use. Firstly, this chapter introduces the concept of descriptive trademark fair use. Then it discusses generation and development of trademark fair use in the United States, especially the relationship between trademark fair use and likelihood of confusion, and subsequently it introduces fair use statutes in other major countries and areas in the world. This chapter is ended by conclusions about how to distinguish descriptive trademark fair use in the subjective and objective aspects.The third chapter is about content of nominative trademark fair use. It has similar structure as the second chapter. Firstly, this chapter introduces the concept of nominative trademark fair use and the differences between these two kinds of fair use. Then, it introduces the generation and development of nominative trademark fair use in the United States and also addresses relevant statutes in other major countries and areas. At the end of this chapter, the author proposes some test methods about how to distinguish nominative trademark fair use in both subjective and objective aspects.The fourth chapter summarizes the trademark fair use system in China, points out the main problems, and proposes a series of solutions about how to improve trademark fair use system.