Research On The Legal Issues Of Fair Use Of Registered Trademark

How to identify someone’s behaviour to be "fair use" of the registered trademark? Article59of the new Trademark Law has made guiding principles on this issue, but lack of specific operation rules. The primary goal of this article is to solve this problem, and then this article will do research on the problems of "the expansion of the fair use way of registered trademark" and "the distinction between ’fair use’ and ’intelligent use’".The basic idea of this article is to fully respect the judicial practice and to develop institutions of Chinese Law by working on the judicial cases. Firstly, this article explores that the development and application of the institution of registered trademark in judicial practice by using the method of case categorization, especially of the "specific operation rules for identifying fair use". Secondly, dogmatics of law is the important analysis method of this article. This article believes that "not cause the confusion of relevant public" is the composition element of fair use by using the method of "legal system" and "legislative intent", except the fair use of certification marks. At the same time, this article believes that fair use is the "positive right limitation" way. Finally, by using the methods of ’"economic analysis’,’interest balancing’ and ’comparative law’", this article believes that "nominative fair use" and "non-commercial use" should be the way of fair use of registered trademark. Moreover, the distinction between "fair use" and "intelligent use" is large, and the judicial practice should use the concept of "fair use". In a word, this article believes that the institution of fair use of registered trademark in our country has explored the stages of "simple transplant" and "rooting gradually", and entering the stage of "subjective consciousness". In the same time, the judicial cases have provided the enough nourishment for the development of this institution.