On The Reasonable Use Of The Trademark

With the rapid economic and social development of China in recent years involves the rational use of trademark disputes increasing, which not only includes the rational use commercial trademarks, but also often appear non-commercial fair use cases, such as discussed in this article " TCL "case," Jinhua Ham "case," FOR VOLVO "case and so on. Since 2008, the "cottage" of the wind intensified, the market can be seen everywhere "live weeks" brand washing powder, "Kang Shuai Bo" instant noodles, "Pulse robbery" beverages and other products, comes next is "genuine" products and "cottage" between goods on the trademark infringement lawsuit.Has been the trademark of most people as taboo, rather than consumers distinguish the goods or services from the most important position. Legislative practice of trademark law in China, for its trademark protection is greater than the absolute limit before the Trademark Law to modify the rational use of the mark has not be clearly defined and, therefore, an increasing number of the relevant trademark is currently a reasonable In sharp contrast to the use of inadequate legislation in our country, the system lacks. Therefore, I hope the article made the rational use of trademarks preliminary exploration for the continuous improvement of trademark law to make recommendations to the judicial practice of the future help.This article is divided into five parts:The first part of the Company v. Han Dynasty are the company for trademark infringement, TCL introduction to the controversy leads to the focus of the case: the defendant to use in advertising, "Millennium Dragon" text is infringement of the "Millennium Dragon QIANXILONG" exclusive trademark right.The second part discusses in detail the rational use of trademarks, the first of the "use" in trademark law on the definition of the word, while other countries through the study of international and regional for the rational use of trademarks expressly provided, on this basis, a trademark of induction The concept of fair use. Second, from the legislative purpose of trademark law, the balance of interests point of view, the principle of freedom of expression point of view and good faith of the four aspects of the trademark fair use rationale.The third part is based on a trademark for commercial purposes, the trademark fair use into commercial use and non-commercial use, and introduced the commercial use of the main types: descriptive and prescriptive use of non-commercial use and the use of The main types: parody, news reporting and news commentary and the use of dictionaries and other reference books. Part IV with the relevant provisions of international trademark law and protection of practice, summarizes the composition of elements of trademark fair use: the user subjective well-intentioned, the user does not use it as a trademark, users have their own trademarks, the use of objective will not cause confusion. Trademark fair use in clear Elements of a trademark on the basis of the criteria for determining fair use.Part V analyzes the rational use of trademark status of legislation and judicial practice, proposed the establishment of trademark fair use of the legislative proposals.