Trademark Restrictions

The limitation of trademark rights is that in certain situations when there is a conflict between the trademark rights owner's and other's legitimate rights or the public benefit, the law makes necessary limitation to the rights and legal protection of the trademark rights owner in order to protect the legitimate rights of others, and to balance the benefit between the trademark rights owner and the public. Usually, the contents of the limitation of the trademark rights include the following kinds in various countries: fair use of the trademark, exhaustion of the trademark rights and prior use of the trademark. Limitation on the trademark manifests the development tendency of the Trademark Law. The research on the limitation of trademark rights does well to consummating trademark rights system of our country. Otherwise, it is also good for the benefit balance between the trademark rights owner and the public, and for the maintenance of the fair competition environment of the market. The limitation to the trademark rights is the request of the benefit balance theory to the trademark law. The limitation to the trademark rights is also the requirement of balancing the benefit among trademark rights owner, the consumer and the common public. The limitation to the trademark rights manifests the fair and just view on the assignment of trademark rights interests. It indicates the social responsibility of the trademark rights owner that promoting the reach and use of knowledge and information by the public. The fair use of trademark includes commercial and non-commercial use. Combining the subjective and objective aspect, there are six standards judging the fair use of trademark. The exhaustion of trademark rights can be divided into three types by the region range: international exhaustion principle, domestic exhaustion principle and regional exhaustion principle. The trademark parallel importing refers to the behavior that when the same content trademark products obtain protection in more than two countries, the importer imports (or exports) them from a country to another country without authorization. The focus of the disputation on the trademark parallel importing theory is that the exhaustion principle adopts the regional or the universal principle. The non-registered trademark could obtain certain commercial value after the use. Protection to the prior use right of the non-registered trademark is the objective need of market economy development. It can make up the shortcomings of registration principle, and be the request of the protection to the already benefit. Protection to the prior use right must conform to the essential conditions. Except our country, the various countries have all regulated the fair use of trademark in their trademark laws. In the present situation, accelerating the process of related legislation can deal with the happening situations. About the exhaustion of trademark rights and trademark product parallel importing, China should hold the opinions that utilizing the judicial rules with procrastinating the trademark law temporarily. China should also sign the international bilateral and multilateral agreements, and strengthen the international communication. Our country should explicitly stipulate the prior use right of trademark in the trademark law. After all, the prior use right of trademark is only a limited using right, and can't resist with the trademark rights. The prior use right of trademark also has certain limitation in practice.