On The Judicial Determination Of The Proper Use Of Trademarks

The fair use of trademark is an important tool to protect the freedom of speech in the commercial activities, and is also an important reason for the infringement of trademark right. In recent years, the national trademark law has been clearly defined,such as the United States,"blue ham law" thirty-third (b) paragraph (4),"the European Union trademark regulations," the provisions of article twelfth, Japan's trademark law,such as the provisions of article twenty-sixth. But in our country,the research on the system of the fair use of trademark is much later, but the domestic trademark infringement cases are frequent and the dispute is constant. In 2013 the revised trademark law fifty-ninth will be the original "trademark law," the provisions of the provisions of the forty-ninth rose to the legal level, but also reflects the current China's trademark right to use the system. But there are still some problems about the system.First of all, the research on the legal system of the right to use the trademark in our country is mainly about the study of the advanced legislative practice and the classical precedent in foreign countries, and the discussion of the system's type and constitutive requirements. In fact,basic theory of fair use still has a lot to reflect,for example the trademark fair use is not to use the trademark, the use is only a sign, in order to improve the system of trademark fair use, it is necessary to study these basic theory problems; secondly,China's legitimate use of trademark rights the legislation is not comprehensive enough, China's "trademark law" only provides for the proper use of narrative, other types are not involved; finally, the problem to be solved explicitly the legitimate use of the trademark as well as the standard of judgment in the judicial practice, the judgment from the court in recent years as the use of trademark rights case, a trial even retrial results are not consistent, and even some opposite, this is mainly due to the lack of rules of trademark fair use elements and is now complete Legal provisions are too simple, resulting in a lot of cases can not apply the rule, the judge in the trial of cases only reference related tort law,the trial is in accordance with the elements of trademark infringement, trademark fair use is established without examination. Therefore, it is not only of theoretical significance, but also of practical significance to study and improve the system of fair use of trademark.Based on the reference of domestic and foreign scholars, this paper is divided into two parts to study the current situation of China's trademark right to use system.The first part discusses the concept, the nature and the main types of the trademark right to use system. The trademark fair use of trademark refers to the non human information of their products or service properties,uses,raw materials, such as origin to consumers, or to truthfully explain their relationships with others trademarks,goodwill and trademarks by others in a reasonable way, not as their own trademark use, not damage the legitimate interests of the owner of trademark behavior. Therefore,the proper use of trademark is not a trademark use behavior in essence. The types of fair use of trademark can be divided into commercial use and non-commercial use,this paper focuses on the analysis of three types of commercial use.Second most of the major commercial of the legitimate use of the three types,namely, the proper use of the proper use of the indicative, proper use and comparative advertising in the concept, form and criterion of the combination of case identification.Finally, it puts forward some suggestions for improvement of the system.