Study On Constitutive Requirements Of Trademark Fair Use Rule

The trademark fair use rule is one of those which put limitations on the abuse of trademark right. The Third Amendment for <Trademark Law>, Article 59, 1st paragraph specifies trademark fair use rule, totally copies the content of <Trademark Law Implementing Regulations> Article 49 and is lack of constitutive requirements, including object of trademark fair use, extent of application of trademark fair use rule, behavioral models of trademark fair use and applicable standards of the rule. Besides, whether to consider the likelihood of confusion is the core issue to study constitutive requirements. On the premise that the new <Trademark Law> has introduced the ‘confusion’ theory, the clear enlightenment should be given in relevant legal document in case that confusion and contradiction would be caused in the process of the evidence presentation by the perpetrator and judicial discretion.However, missing constitutive requirements is long-standing problem and hard to be solved during the amendment process of trademark law. Perhaps numerous viewpoints do a disservice for solving the problem. Constitutive requirements of the trademark fair use rule remain unclear, which result in the usage limitation and poor operability. While the above problem exists, problem has risen in judicial practice when judging fair use cases.Given the above reasons, this essay uses “Constitutive Requirements of Trademark Fair Use Rule” as the study topic. Without the attempt to study the solution for the above problem, “Trademark Fair Use Rule” is theoretic merely. The study contents are divided into four parts: object of trademark fair use, extent of application of trademark fair use rule, behavioral models of trademark fair use and applicable standards of the rule. Clarifying the object of trademark fair use is the premise and base of constitutive requirements study and then other constitutive requirements can be clarified. Offering reasonable proposals are the final purpose of this study. So this paper has six chapters.The first chapter introduces the general situation of trademark fair use rule and introduces a questionThe second chapter is about object of trademark fair use: trademark and similar logo.The third chapter is about the extent of application of trademark fair use rule: commercial use.The forth chapter discusses behavioral models of trademark fair use: descriptive fair use and nominative fair use.The fifth chapter discusses applicable standards of trademark fair use rule, including study on the likelihood of confusion.The sixth chapter summarizes the constitutive requirements of trademark fair use rule, and offering reasonable proposals to improve trademark fair use rule.