Research On Legal Issues Of Descriptive Fair Use Of Trademarks

In recent years,more and more defendants have used trademark descriptive fair use to escape plaintiff's allegations of infringement.The legal basis for descriptive fair use of trademarks derives from the provisions of Article 59(1)of the Trademark Law of China.Its legislative purpose is to prevent trademark right holders from abuse of rights and violate the freedom of expression of the public.Although there are relevant regulations in the legislation,the content of this clause is too general and follows the Article 49 of the “Implementation Regulations of the Trademark Law” promulgated before 2014.The content of this clause covers the objects and components of descriptive fair use of trademarks.There are no specific provisions on the specific applicable standards such as the scope of application,and there are no relevant national standards to supplement the relevant standards.Due to the fact that the current Chinese laws and regulations do not specify the applicable standards for descriptive fair use of trademarks,and the cases of trademark infringement cases have become increasingly complex in recent years,the applicable standards of judges in trial cases are not uniform in judicial practice.It is not conducive to China's promotion of strict justice and realization of the basic strategy of governing the country according to law.By combing research and descriptive fair use of related works and papers,the author finds that not only is the applicable standard of judicial practice in China,but also the specific application standards for the rational use of trademarks by the theoretical community are divergent.At present,no consensus can be reached.Therefore,the author believes that relatively consistent standards should be concluded to make the descriptive fair use rules more practical,so that they reflect the legislative purpose and value of the formulation of the rules.Therefore,in the light of specific judicial cases,the author begins with a description of the object of descriptive fair use,its constituent elements,and the scope of application.To correctly define the concept of descriptive fair use,it is necessary to clearly the object of describe fair use.This is the premise and basis for the construction of descriptive fair use of components,and it is clear that the components can accurately determine the scope of application of descriptive fair use.This article is based on the logical order between these standards.The full text consists of an introduction and five parts.The details are as follows:The first chapter is the brief introduction of the case.Through the introduction of trademark infringement dispute "mud",points out that in the case of disputes,surrounding the controversial focus leads to this article to study the focal point of the problem,namely the trademark descriptive fair use of objects,the components of the descriptive fair use of trademark,trademark descriptive fair use scope.The second chapter is divided into three sections which discuss the objects and concepts of descriptive fair use of trademarks.The first section describes the semantic analysis of the descriptive fair use of the label;The second section discusses the object of the trademark description fair use,namely the same or similar symbol with the trademark;Section 3 defines the concept of trademark descriptive fair use.The third chapter is divided into two sections to discuss the components of descriptive fair use.The first section describes in detail the extraterritorial law research related to the descriptive fair use of constitutive elements,analyzes the application of descriptive fair use in judicial practice in the United States,and introduces the specific provisions for descriptive fair use in other countries and regions;In the second section,discusses China's relevant provisions on descriptive fair use of constitutive elements,which focuses on analyzing the relationship between descriptive fair use and the possibility of confusion,that is,whether the two are compatible,and whether “conflict impossibility” is a component of descriptive fair use.which is the most controversial point of all circles at present.The first section of the fourth chapter outlines the legislative purpose of the descriptive fair use of the trademark and specifies the legislative purpose of the legal rule in order to clarify the scope of application;In the second section,we cited examples of the scope of application of descriptive fair use of trademarks and pointed out that the current law does not seem to properly narrow the scope of application of the rules.The author believes that the scope of application of the rules should include all registered trademarks and not only "second meaning" trademarks.The fifth chapter is divided into two sections.The first section discusses the insufficiency of the descriptive fair use system of trademarks in China.That is,the legislation is too rough and the terminology is not uniform.The application scope of the rules is too narrow and the constitutional requirements are not clear.The second section proposes suggestions for improving the descriptive fair use of trademarks in China,and hopes that the relevant departments will use uniform terminology,correctly divide the scope of application,clarify the constitutional requirements,and issue judicial interpretations supporting legislation.