Trademark Fair Use System Research

Jinhua hams is special local product of Jinhua city Zhejiang province.It originated from Song Dynasty.And it has a long history about 800 years.Zhejiang Food limited company gained registered trademark of Jinhua Ham by administrative instrument.From then on,Zhejiang Food Inc.had accused many companies in Jinhua city.Zhejiang Food Inc.considered that these companies used Jinhua Ham typeface,they infringed the registered trademark fight of Jinhua Ham.But,Zhejiang Food Inc.used to lose a lawsuit.That's because the deed——companies in Jinhua city who produce Hams use JinhUa Ham typeface is the fair use of trademark.Trademark fight means the trademark owner can exclude other people to use his trademark.Recent years,the trademark fight has the trend it becomes powerful increasingly.And many countries have restricted the trademark right,because no restrict and no fight.The most important manner of restricted of the trademark right is the fair use of trademark.From law and philosophy,there is contradiction between the fight of trademark and the fight of information freedom of public.One hand,the trademark owner creates the trademark,and has the trademark right by registered.The trademark owner tries to enlarge the range of the trademark fight.On the other hand,the public need the intellectual products about trademark right.Then the individual benefit of trademark owner collides with the public benefit of the society.We choose benefit balance system to settle disputes between them.And the fair use of trademark is a good way.From the economics,the trademark fight is the fight of property.It is the personal property of the trademark owner which is protected by law.But,the trademark right is the right of monopolization also.And the aftermath of monopolization is no competition.The trademark owner becomes powerful by right of monopolization,and supplants other competitors.Then the final casualty is consumer.So,no restricted of trademark right is not good for market economy.It is important to establish the fair use of trademark.The fair use of trademark has many forms,mainly is divided into the fair use of business and fair use of not business.And the fair use of business is divided into the descriptive fair use,the nominative fair use and parody.The fair use of not business is divided into the fair use of press media or natural comment,the fair use in dictionary.Many developed countries or regions have established the fair use of trademark,such as European Community Trademark Law Act item 12,Lanham Act item 33,Germany Trademark Law Act item 23,Japan Trademark Law Act item 26,Hongkong Trademark Law Act item 34,Taiwan Trademark Law Act item 23.I combine lawmaking of other countries and our own fact,bring forward some advice.First,consummating the legislation as soon as possible,the system of the fair use of trademark will be included in our Trademark Law.Second,describing the fair use of trademark in listed and summarized way.Thirdly,clearing the standards of the fair use of trademark.Fourth,using the Anti-competition Law as a supplement,to cover the loophole of the Trademark Law and the Implementation of the Trademark Law.I hope it can arose attention of scholars and relational department.And then the fair use of trademark of our country can be consummate.