On The Legal Determination Of The Indicative Use Of Trademarks

As a type of trademark fair use, trademark indicative fair use is not only an important part of trademark restrictions, but also a significant defense in a trademark infringement action. With the development of market economy and society, disputes over indicative fair use of the trademark rise accordingly, however, relevant rules and regulations in this aspect have not been made. Therefore, how to identify an indicative trademark fair use becomes a problem in legal practice. In this article, Based on both case studies and theoretical analysis, this issue will be discussed through analyzing legislation and law practice at home and abroad. This article mainly focuses on the basic theory of trademarks indicative reasonable use as well as the introduction and assessment of its elements theory, clarifying the relationship between trademark indicative fair use and confusion possibility in trademark infringement. Besides, this paper will explore and analyze the legislation and law practice at home and abroad, thereby discovering the identification standard of trademark indicative fair use and its judgment method.Firstly, by analyzing the rational use of trademarks indicative's meaning, characteristics, combined with analysis of the nature and the contents of the trademark use, this article argues that the nature of trademark fair use should be the trademark use. Then, combining with practical needs I analyze trademark indicative fair use and believe that as a trademark limitation system, the necessity of establish its standards is to balance the need for trademark owners and the public interest to prevent the abuse of trademark rights, to protect the interests of consumers,to maintain fair and free competition in the market.After that, through evaluating the core theories containing various viewpoints about the elements of trademark indicative fair use, analyzing the relationship between trademark indicative fair use and confusion possibility in trademark infringement, this article holds that trademark indicative fair use theory can't be independent of confusion possibility theory and can not replace the latter, furthermore, no confusion should be taken into account in identifying indicative fair use.In legal practice, many foreign countries have legislation and many typical cases about indicative of fair use. In these cases, identification criteria of is not exactly the same, but in fact have been included subjective goodwill, objective reasonable behavior, causing no confusion, which is worthy of reference and learn from. The indicative of fair use at home is currently only be tried in administrative normative documents and guidance of local courts, simply and superficially. Administrative law enforcement and judicial practice has not yet formed a unified determined identification criteria.On the basis of theoretical research, combining study on legal practice, I hold that the identification of trademark indicative fair use should establish goodwill, a subjective standard, objective behavior of necessity and proportionality, the objective effect which won't cause confusion, these three necessary criteria and analyzing the judgment elements and methods of these criteria.