Research On The Use As Trademark In The Trademark Infringement

In the early economic trade activities,the brand effect was not being paid attention to,the packaging and decoration of goods as well as its trademark was also being overlooked.As the packaging and decoration of goods are relatively simplistic,even if trademark infringement happens,it is still easy to make a judgment.Along with the development of commercial trade,the importance of intellectual property law has being gradually embodied in the real life of human beings.Enterprises have laid more and more emphasis on the their own trademarks.In addition,the economic interest which the trademark brings to enterprises makes the trademark itself being an very important role in the enterprises.Generally speaking,infringement comes with economic interest,as the trademark contains a great deal of economic interest,it has led to a lot of trademark infringements in one way or another by peer enterprises and non-peer enterprises.Trademark infringement brings the infringers with a lot of interests.Meanwhile,it not only bothers the trademark right holders a lot,but also affects the benign development of the market in a certain extent.Therefore,the discussion of the trademark infringement behavior proves to be undoubtedly an important issue in the study of trademark law.The use as trademark in the sense of trademark law is a core content in the trademark law.It maintains an inseparable relationship with trademark infringement.In judicial practice,the use of trademark law is usually a precondition for trademark infringement.Therefore,there is theoretical value and practical significance to do research on the use as trademark.The focus of this paper is to: 1)introduce the use as trademark in trademark infringement;2)summarize and analyze the use as trademark;3)point out the academic debate concerning the issue of the use as trademark;4)explain the reason why the use of trademark should be the premise of trademark infringement.Meanwhile,this paper analyses the components of the use as trademark as well as the current condition of the use as trademark in network environment.This paper is divided into four parts:The first part synoptically introduces the connotation of the use as trademark and the significance of study.This part also points out the importance of the use as trademark in justifying the rationality of the trademark law,making trademark functioning well,obtaining and maintaining trademark law,judging trademark infringement,accumulating business reputation and so on.At the same time,on the basis of different proceeding,this part classifies the use as trademark and introduces the main classifications.In the end,two related concepts to the use as trademark will by analyzed: one is non use as trademark,the other is fair use of trademark.The second part begins with the controversy of whether the use as trademark is the premise of trademark infringement,and then analyzes two opposite views.Based upon the analysis of these two opposite views,conclusion could be drawn that the judgment of trademark infringement should have its premise on the use as trademark.The third part analyzes the components of the use as trademark in the trademark infringement.And then points out that to constitute the use as trademark in the circumstance of trademark infringement,three elements must be included: 1)the trademark must be used in business activities in its home country;2)the trademark must be used publicly;3)the function of the trademark to identify the source of goods must be embodied.The fourth part analyzes the use as trademark in the network environment.Based on the analysis of online market,this part puts forward that the characteristics of online market is global,virtual and informational.By virtue of these characteristics,this paper discusses the components of the use as trademark in the network environment.Finally,two fashionable kind of uses of trademark in the network will be discussed: one is taking advantage of others' trademark as domain name,the other is taking advantage of others' trademark as meta revisit tag.