Trademark Passive Use Of Legal Protection

In the traditional sense of the trademark use behavior, the way is limited to the holder’s active use. But in recent years, there are a series of cases about the dispute of the trademark registration, which makes trademark passive use problems begin to come into people’s eyesight. In passive used situation, the use of the trademark subject from trademark holders in the traditional theory are transferred to the public and the media, this is obviously contrary to the traditional theory, therefore passive use behavior is controversial, the focus of the controversy focuses on:(1) does passive use behavior belongs to the category of the trademark use?(2) what is standard of the passive use of trademark? There is no denying that the fact that the passive use of trademark makes a certain impact on the traditional theory of the trademark law. Whether should give legal status of passive use of debate, it embodies the conflict between "formal justice" and "substantial justice", and the conflict between "Consumer protection theory" and "Manufacturer incentive theory".On above, this paper analysis the domestic and foreign some typical cases and theoretical results, the conclusion is, the protection of the passive use of trademark has become a trend. Therefore, in the author’s opinion, trademark law should return to legislative intent of protecting the rights of the consumers, and give the passive use of trademark the corresponding legal status from the legal level. Our purpose of trademark protection, not only is to protect the operators’ accumulated reputation through the use of the trademark is inviolable, but also to protect the consumers’ right that consumers can free choice in purchasing certain goods and services based on the guidance of the trademark. So, either active or passive use, as long as the trademark in use process to produce the influence and build up a refer to the relationship between the trademark and particular commodity, and it becomes an important standard of distinguishing producers and product quality, and then the trademark should be protected in law.The paper is divided into four chapters.Chapter One. From the concept of the passive use of trademark, this paper collects some cases to show the condition of legislative protection and judicial practice of the passive use of trademark in our country.Chapter Two. The basic theory of the passive use of trademark is introduced. Legitimacy and necessity of protection of the passive use of trademark is argued in law theory. At the same time, this paper clarifies the relationship between trademark active use and passive use, concludes that the two are not completely opposites, but can realize the organic unity.Chapter Three. The paper introduces a set of theoretical results of dealing with the passive use of trademark(public use rules). Through the analysis of typical cases in the development of the rule, the paper strives for giving reference about protection of the passive use of trademark.Chapter Four. On the basis of borrowing the foreign judgmental experience, considering the basic functions of trademark and the purpose of trademark lawmaking. I put forward some suggestions for improving the lawmaking protection of the passive use of trademark.