Reflection And Reconstruction Of The Status Of "Trademark Use" In Trademark Infringement

China's "trademark law"(2013)on trademark infringement in the "trademark use" concept and the status of the provisions are vague and even blank,the judicial practice is difficult to reasonably unify.The provisions of Article 48 of the use of trademark and Article 57 of the provisions of the" use "are and of this paper is to discuss the" trademark use" different,so in the judicial practice "will" trademark use 'as a judge of the premise condition of trademark infringement "on the lack of corresponding legislation basis.Through the comparative analysis of the relevant practice of the world's major countries,whether the "trademark use" as a precondition for the determination of trademark infringement has not reached a consensus.In addition,the trademark use "as the premise condition of trademark infringement judgment not only can cause of the trademark infringement judgment criteria of chaos,and the principle of honesty and credit is not consistent,but also not appropriate to narrow scope of the right to exclusive use of a trademark.Should therefore be first to determine whether the respondent identification conforms to the trademark elements,whether have to identify and distinguish function,and then the possibility of confusion analysis,and use it as the main criteria of trademark infringement.This article mainly uses the case analysis method,the comparative analysis method,the legal principle analysis method as well as the induction research method,carries on the expansion and the elaboration to the trademark infringement "trademark use" status.This paper is divided into four parts:The first part introduces "trademark use" legislative and judicial status in China's trademark infringement,pointed out that the "trademark use" as a trademark infringement judgment precondition phenomenon is becoming increasingly prevalent and lack of legal basis.The second part analysis and demonstration of "trademark use" as a judge of the premise condition of trademark infringement in comparative law and jurisprudence on the unreasonable,and points out that the reconstruction of "trademark use in the determination of the point of view of the concept and status of the trademark infringement should be.The third part reconstructions of trademark infringement in trademark use "concept demonstrated that it should include the following meanings:(1)the defendant must commercial logo used in commercial activities;(2)the purpose of use is to indicate the source of goods or services;(3)the use as an objective has the possibility to identify the source.Reconstruction in trademark infringement "trademark use" status,it is demonstrated that the determination of trademark infringement is the key lies in the judgment the relationship among the three elements in the defendant's use of trademark behavior whether the plaintiff identification,goods or services,operators from weakened,emphasizing sued action can damage the trademark the basic function,that is still to constitute a likelihood of confusion or downplayed the possibility as the decision whether to constitute the criteria for trademark infringement,balance of interests so as to balance the trademark right and its competitors,but also take into account consumer interests,in the long run appears to be a more appropriate approach.The forth part summarizes the full text.Pointed out that "trademark use" in the process of trademark infringement,only play a role in the necessary conditions.Determine trademark infringement should be emphasized that the respondent behavior whether the basic function of the trademark tort that still is a confusion and dilution as determine whether criteria for trademark infringement.