The Limitations Of Passive Use Theory Of Trademark

In recent years,our country appeared in a series disputes triggered by the registration of trademark nicknames,and has the growing potential,such as the "Sony" case ",“Guang ben”case,"land rover" case,etc.Judiciary and academia on protecting the trademark nicknames has been controversial,with some scholars advocated to introduce passive use theory of trademark to solve the problem of trademark nicknames.The passive use theory shall enjoy the consumers or the public the right to use trademarks belong to the use of trademarks as the trademark owner.Passive use of trademark is relative to the active use of trademark,according to the provisions of the trademark law in our country,the use of the trademark refers to trademark owner or its client sales and other activities in the use of the trademark,that is the active use of trademark.Explore the difference of representation is the difference of the subjects.According to the social economy development condition and the existing system of trademark,the author thinks that the passive use theory of trademarks has limitations in our country.First,the passive use theory of trademarks may lead to a conflict with the existing trademark system.Second,according to the relevant provisions of the Trips agreement,trademark rights as private rights,passive use theory has violated the trademark rights of private right and the contract nature of the trademarks.In addition,a country's legal system should be adapted to the economic foundation,the current trademark law protection of trademark rights to promote free competition and economic development,more focused on the manufacturer incentives.Therefore,the author through discussion about the meaning of the "use of trademark" in the trademark law and the study of foreign related system and the legal system of our country,in the end,the author thinks that the passive use theory of trademarks has limitations,there is no need to introduce the theory in our country.According to our current legal system also can achieve the interests protection of the trademark under the passive use theory.The whole dissertation is divided into three chapters:The first chapter is an introduction of the passive use theory of trademark.This chapter mainly divides into three parts.The first part mainly introduces the origin of the problem.The second part introduces the characteristics of passive use theory of trademarks.The third part introduces reasons for introducing the passive use theory of trademarks.The second chapter is the limitations of passive use theory of trademark in our country.This chapter mainly divides into three parts.The first part mainly introduces the theoretical defects existing in the theory.The second part introduces the conflict between passive use theory of trademarks and the trademark legal system in our country.The third part introduced Critical thinking of the American relevant system,we should be based on our country's existing legal system to seek relief.The third chapter is our country's existing legal system can provide relief for the protection of the trademark nicknames.This chapter mainly divided into two parts.The first part mainly introduces the relief through trademark law.The second part introduces the relief through anti-unfair competition law.