The Research On The Interest Protection For The Passive Usage Of Trademark

Trademark, a landmark symbol during the procedure of the commodities’ production and sale, it aims at being used by others and bringing conveniences to others and the proprietors as well. Trademark’s registration system, whose practical significance is not to claim the proprietary right, but to make the consumers distinguish the commodities’resources by the means of using the trademarks, and then choose the consumption. That is the legislative purpose and basic principles of trademark law.Recently, along with the passive usage of trademarks, there are a series of cases about the dispute of the trademarks’registration, the trend is getting more and more severe. With regard to the passive use behaviour, whether it can be treated as the behaviour of using trademarks, which is still controversial between the judicial and academic circles. The research about the cases’appearances is merely the diverse understandings towards the articles of law. While the research about the essence is the gambling between two theories of value-"the theory of manufacturer motivation" and "the theory of the consumer protection". As for this, I prefer the latter one, the reason is that consumers play a key role in achieving trademark’s function, without the participance of consumers, it will be worthless for the proprietors to use trademark, as there are no targets. In addition, making the final judgment of sticking the "usage" to the active usage of the trademark’s proprietor, which inevitably seems to against the true justice for proprietor, confound the commodities’resources for consumers, mislead the public consumption, and it will encourage others to follow the people who have registered the first but violated honesty to some extent. I would like to discuss three issues from the angles of trademark owners, consumers and the people that try to register first:(1) the definition of "the usage of trademark" in trademark laws;(2) seeking the balance between "the formal justice" during the procedure and "the fair justice" of the result of judgment;(3) the value orientation between ""the theory of manufacturer motivation" and "the theory of the consumer protection". Finally, I think we should admit the legal effect of the passive use behaviour, lead the passive use to the current legislation, which can not only satisfy the legal basis during the judgment, but also the real justice of the result of judgment, accord with the purpose of legislation of trademark laws, and then achieve the protection of the interests of using trademarks passively.The whole dissertation is divided into four chapters:The first chapter is the summary of the relevant problems to the passive use behaviour. According to analyze the social situation of juridical practice and summarize the research results at home and abroad, we come up with the concept of the passive use behaviour. In view of this, I summarize and analyze three characteristics the concept has. Moreover, the chapter includes two discussions, one is the subject of the interests protection of using the trademarks passively, the other is the legal basis and essentiality to implement the protection.Chapter two can be divided into two parts, one is the observation of the lawmaking, which mainly focus on the current situation of the protection of using trademarks passively, the other is the discussion about the existing problems on the basis of the former one. In terms of the former part, it can be divided into two parts:one is the current articles and regulations of lawmaking; the other is the court’s attitude towards juridical practice. The existing problems of the protection are manifested in four points: firstly, a lack of current lawmaking in the concept of " the passive use of trademarks"; and then the people who have benefits with trademarks are in the legal quagmire; moreover, the discussion that is hidden behind the dispute, which is the discussion between the "the theory of manufacturer motivation" and "the theory of the consumer protection"; finally, that is the awkard situation between the formal and essential justices in judicial practice, which is always be put in a double squeeze.The third chapter is mainly about the observation and reference of the current situation of the passive use of trademarks abroad. There are two aspects:On the one hand, the cases of American "BUG"、"Bunny Club" and "Coke", what they have inspired China’s juridical practice; On the other hand, the case of Australia "Barefoot", is a breakthrough for the use of trademarks. In addition, it also establishes the value orientation of "Consumers’interests first":The dispute of the trademark right, which is based on the discussion of the cases, is not only a problem of private rights, but also refers to the interests of consumers and the honest competitive order.The last chapter, is about the observation of current situation of the juridical practice of passive use, analyzing the existing problems. On the basis of borrowing the foreign judgmental experience, considering the basic functions of trademark and the purpose of trademark lawmaking. I put forward a series of system constructions for improving the lawmaking protection of the passive use of trademark, in addition, dividing specific measures into both lawmaking and juridical levels.