The Function And Cognizance Standard Of “Trademark Use”in The Determination Of Infringement

"The trademark use" is an important concept,which appears in term of trademark infringement chronically,in our country,that generally considered it as the elements of determining the infringement established as well,when the courts at all levels in adjudicating such cases,they usually regard constituting a "trademark use" as the elements of judgment of trademark infringement.The forty-eighth article in the new revised "trademark law" adds this point "using for identifying the source of goods" to the original definition "use of trademark",and this additionally causes the consideration of if this provisions can directly apply to the determination of ‘trademark use” in infringement judgment,and further leads the discussion of "trademark use" status and identification standard in the infringement judgment.It doesn’t have a clear definition for practice to "trademark use",lacking of clear standards as well and it makes the scholars come up with many queries on the status of "trademark use” in infringement judgment.This article summarizes that regard the " trademark use " as the theoretical level of judgment elements and the relevant chaotic situation of application of this prerequisite in the practice of national judicial adjudication,gives comprehension of use in the context of infringement of statute and defines " trademark use “in the context of infringement.On this basis,it clearly defines the element status of it in the infringement judgment,carry out discussions on the views that the educational circle query,and clarifies the relationship between it and other principles in trademark infringement.Finally,combined with the practice cases of foreign countries,this article investigates the consideration factors of "trademark use" in trademark infringement and probes into the judgment standards in trademark infringement cases.