Study On The Nominative Fair Use Constitutive Requirements Of Trademark

The restrictions and protections of trademark are important area in trademark study. The fair use of trademark plays an important role in trademark restriction system. The nominative fair use is one of fair use styles and its function is to balance the interests between the trademark owner and the public, makes the signs, words or other marks which should be in public domain in certain solutions in public domain. It is aimed to forbid trademark owner to abuse his rights. Due to the late development of the commercialization of the economy, the legislation of trademark in China is seriously lagging, and there is no statutory provision about the nominative fair use in China. Although Chinese law lacks of the statutory provision, it is common in judicial practice. The nominative fair use of the trademark is exceptional contradict of trademark infringement, but it still presences many shortcomings because of the underdeveloped legal system. The problems about the nominative fair use of trademark are argued in both theorists and judiciary, one of the hot issues argued is what the elements of the nominative fair use are. This article discusses the elements based on the nature of the nominative fair use, compared with the elements of nominative fair use from other countries and districts cases or trademark law, concluded what the nominative fair use elements of trademark should be in China.In this thesis is composed by four parts.The first part of the thesis is to discuss the legislation and the judicial about the nominative fair use of the trademark. After summarizing the issue which exist in the judicial and the legislation, author conclude that the main reason why the issue exist is the undefined constitutive requirement.The second part of the thesis is to introduce the constitutive requirements in theory. There are two kinds of constitutive requirements. One of them includes as follow:(1) good faith;(2) use the trademark to describe the characters of the good and service;(3) the use reflects no likelihood of confusion. The other includes as follow:(1) good faith;(2) use the trademark to describe the characters of the good and service. The issue is whether the likelihood of confusion should be considered in to the constitutive requirements of the nominative fair use.The third parts inspects the specific provisions from other countries and the Taiwan region, including cases and statutory provisions. In this chapter, the author collects cases from The United States, The European Union, Japan and the Taiwan region, and analyses the elements of nominative fair use from the cases. Generalizing and evaluating the different elements from different countries and regions to put forward the elements content of the nominative fair use of trademark.The last part of the thesis aims at to analyses the content of the nominative fair use constitutive requirements in China. The issue is discussed on the nature of the nominative fair use, to clarify what the “use” means in the nominative fair use. To build subjective aspect and objective aspect elements to identify the nominative fair use of the trademark, and to clarify that the confusion possibility is not one of the elements to identify the fair use. Make sure that the elements of the nominative fair use should include the methods of using the trademark and the intentions of using the trademark.