Research On The Trademark Limitation System Under The Network Environment

As the superstructure, Legal System’s every large-scale adjustment were began inproductivity transform. The development course of trademark system is similar. Along withthe arrival of the Internet era, people quickly into a virtual network environment. However, itis still in a blank of the trademark system compatible with the network environment.Especially the trademark limitation system, which is imperfect in the reality of the physicalenvironment, is facing unprecedented challenges with the impact of the new features of thenetwork environment. So this paper based on the new features of the network environment,analyze the applicable conditions in the network environment of the trademark limitationsystem which formed in the traditional environment and put forward a reasonable proposal toimprove and perfect our network trademark limitation system.In addition to the introduction, this paper is divided into four parts:The first part mainly summarizes the trademark limitation from three aspects. Firstly, thearticle discusses the definition of the trademark limitation theoretically, which consider that:the trademark limitation refer in particular to a limitation when the owner of the trademarkexercise its proprietary rights. It belongs to right limitation in the dynamic sense, and it is alimitation on the power effectiveness and the exercise of the rights. So it does not contain ageneral static sense of regionality and timeliness limitation. Therefore,“trademark limitation”can be defined as “The law based on justification to exert the burden to the owner of thetrademark, and limit the exercise of trademark right, so that it does not go beyond theboundary of trademark right or infringe upon the interests of others or the public interests. Inorder to achieve the trademark balance between the private interests and the interests of athird person and social public interests.” Secondly, by summarizing the basic types oftrademark limitation under the traditional environment, the article states clearly that the typeareas of the trademark limitation——statutory limitation and intended limitation. Thirdly, thearticle starts from the transformation of the applicable environment of the trademarklimitation system: From the “one-dimensional society” which based on the traditionalphysical space to the “two-dimensional society” which based on the co-existence oftraditional physical space and the new emerging cyberspace. With the changes of theenvironment, the application of the trademark limitation system is changing. The second part starts from two major logical starting points and legitimacy basis of thetrademark limitation to explore the theoretical basis of the trademark limitation system. Thetwo major logical starting points are: the contradiction between the private interest and thepublic interest, monopoly and antitrust contradiction. At the same time, the legitimacy basiscan be explored from the five major theories: the theory of Natural Rights; the theory ofBalance of Interests; the theory of Fairness and Justice; the theory of Law and EconomicsIncentive; the theory of freedom of speech under the Constitution Road.The third part starting from the basic characteristics of the network environment and newchallenges which brings from the network environment, analyzes the possible trademarklimitation system and the specific circumstances of the trademark limitation under thenetwork environment: Trademark Fair Use (the Trademark Parody behavior under thenetwork environment, the use of the trademark behavior in the network news reporting andnews commentary, the recruit trademark behavior in the process of the codification network“encyclopedia”, the trademark use based on freedom of speech in the Enthusiast website orconsumer criticism website, the descriptive and indicative use of the trademark in thenetwork); the Prior Use right of Trademark; the Trademark Exhaustion; and the TrademarkCoexistence Agreement.The fourth part is based on the characteristics of the network environment and thespecific application circumstances of the trademark limitation under the network environment,analyzes the necessity of perfecting the trademark limitation system under networkenvironment, and put forward some proposals to improve and perfect our trademark limitationsystem. First, take the summarized and enumerated legislative model to provide the system oftrademark limitation specifically in our Trademark Law. Second, working out a networkTrademark Separate Regulation to clear the specifically applications of the system of thetrademark limitation under the network environment, based on the special nature of thenetwork environment.