The Researeh On Component Of Nominative Use Of Trademark

With the continuous expansion of the protection of trademark rights,the fair use of trademark system has gradually aroused.heated debate.Our country's trademark reasonable use system including classic fair use and nominative use,and the classic fair use has been added to the newly revised Trademark law,but the nominative use did not formally established in China.At present,there are different opinions in the academic circles about the nominative use,and there are a lot of use in defense indicative cases in practice,meanwhile,there are many obvious differences among court finds,the focus of controversy is how to judge the elements of the nominative use.Therefore,this article collects ten representative case,which is focus on the elements of nominative use system.The article is divided into four parts to discuss the elements of the nominative use:The first part,to summarize the definition of the nominative use and its applicable situations,it can be applied specifically to two kinds of situations:The expression of the source of goods in the resale link.A description of the service provided to the owner of the trademark,secondly,according to the two types of classification,we see the nominative use as the commercial use of non Trademark Law.Finally,compare the two kinds of rational use,the classic fair use is mainly related to the first meaning of the trademark,and the nominative use is mostly related to the second meaning of the trademark.The second part will be divided into four parts:explain the necessity of commodity,specific ways of marking behavior,whether the use of behavior will produce ambiguity,whether the people will use other people's trademark visibility to obtain improper benefits.So,to judge the good faith,we can combine specific behavior with these aspects.The third part is the same as the second part,we judge the rationality of the behavior from the following aspect:whether highlight use of another's trademark,whether deliberately hide their trademark,whether it is clearly beyond the limits of reasonable use.In the fourth part,we first define the confusing elements,which can be divided into the actual confusion and the likelihood of confusion;Secondly,this paper introduces the development of the confusing elements in the United States through a number of cases,the United States of America's current judgment standards are not completely unified;The final list of views and practice Chinese academic practice,through the analysis and practice of the theory,combined with the situation of our country should be confused as the nominative use elements.Finally,the author points out the practice of Chinese academic circles,Through the analysis and practice of the theory and combined with the situation of our country,we should see the confusion as the nominative use element.