Study On The Identification Of The Fair Use Of Trademark

The fair use of trademarks is one of the most frequently used infringement defenses in trademark rights disputes.It refers to unauthorized use of others trademark while providing goods and services.Such a system is under the category of trademark rights restrictions which is disputable and imperfect compared with the more mature system of trademark rights protection.In August 2013,the third revision of the “Trademark Law” sets out regulations for the fair use of trademarks.The current "Trademark Law" establishes a framework of rights restriction consisting of the fair use of trademark rights,the priority use and the exhaustion of rights.However,provisions of fair use are ambiguous as its realm is indefinite,which lead to dispute when it comes to whether a issue belongs to the category of fair use of trademarks.The incessant emergence of applicable issues means it is necessary to refine the conditions and clarify the standards for the fair use of trademark.The indicative fair use of trademarks is an important part of the trademark fair use system and it is a kind of well-meaning use of other people's trademarks or trademark information to objectively explain the characteristics,uses,and service scope of their products in business activities.It is of great significance to balancing public interests and prohibiting the abuse of power of trademark rights holders.There is no regulation on indicative fair use of trademark in the existing legal system,which goes against the fact of the constant emerging of application cases and hence results in failure in adjudication consistency and authority.Consensus has yet been reached in the academic circle,and there are only a few number of pertinent and in-depth studies on it.The key to solving the problem lies in clarifying the judging standards for the fair use of trademark.In light of such a situation,this article starts from the reality of our country and analyzes the status of theoretical research and judicial practice at the present stage.Based on the nature and circumstances of indicative fair use and drawing on foreign identification standards,the paper tries to improve the standard of indicative fair use in China in a attempt to provide some reference for judicial practice.This article first presents the problem of unclear identification standard of the indicative fair use of trademark.After analysis,it turns out that it is necessary for our country to establish an indicative trademark fair use system.And after investigating the development status of legislation and judicature,the author finds that the mainproblem is the ambiguous standard.In order to find out the theoretical differences on the standard of the indicative fair use and further analyze and integrate the relevant theories of the indicative and fair use,the author finds that the theoretical divergence focuses on whether the confusion theory should be applied.The article first clarifies the legal connotation and rationality basis of the indicative fair use through the theoretical analysis,analyses the views of different doctrines on the standard of the indicative fair use and than analyzes the relationship between the indicative use and the possibility of confusion.In order to ensure the continuity and accuracy of the analysis process,the article also conducted an literature interview on the identification criteria of foreign study on the indicative fair use,such as the development process and classic cases of the indicative fair use in the United States and the European Union.On this basis,this paper attempts to present suggestions for improving the identification standard of indicative fair use,analyze the legal orientation of indicative fair use in China,and point out that we should pay attention to legislation and judicature in the process of transplantation.Three criteria for identification are expounded,and the reasons for the adoption of the identification standard and the specific performance in the application are explained.It is considered that the standard of confusing possibility should be excluded from the standard of identification.Finally,the paper explores the scope of application,and identifies problems that may be encountered in the future development.