On Trademark Fair Use

The article starts with the basic theoretical issues of trademark fair use. It discusses the concept, essence and status of trademark fair use, explores its theoretical foundation, and introduces the origin, content and characteristics of different types of trademark fair use. It inquires its defining factors and composition elements and clarifies its relationship between likelihood of confusion and dilution. Through investigation of China’s legislation and typical cases, it presents the current situation of trademark fair use in China, and makes suggestions on how to improve the trademark fair use system based on the reference of advanced experience of the United States and European Union.The article is composed of four parts.The first part is the basic theoretical issues of trademark fair use, including the concept, essence, status and theoretical foundation. It summarizes the concept of fair use by reviewing the international legislation and the opinions of domestic scholars. The essence of trademark fair use is to use the trademark sign not as a trademark. It is to emphasize the meaning of trademark use by counterexample. As an affirmative defense, trademark fair use is of great significance on judging the infringement and the efficiency of lawsuits. The legitimacy of trademark fair use is expounded from the perspectives of trademark restriction, interests of consumers and market competition, showing the important role of trademark fair use in balancing the interests and maintaining the market order.The second part is the introduction of different types of trademark fair use. Trademark fair use can be sorted by different standards. The article classifies it into classic fair use, nominative fair use, parody, media reports and the inclusion of dictionaries. It also introduced the origin, concept and characteristic of different types of fair use.The third part is the requirements of trademark fair use. The article holds that the standards is not fixed and needs to be applied flexibly in cases. The subjective intention of the user, the way of the trademark is used and the object of the use should be put into consideration comprehensively. With the development of the Internet, cases on trademark fair use in web environment are increasing. They are the same with traditional fair use in essence, but also have some distinctions, which is necessary to be cleared.The forth part is the current situation and suggestions for improvement of the trademark fair use in our country. The article reviews the relevant legislation and cases published by Supreme People’s Court and summarizes the present status of trademark fair use in our country. In view of the existing problems, it makes suggestions from the perspectives of legislation, judicature and theoretical study.