Research On The Fair Use Of Descriptive Trademark

With the deepening of China's intellectual property strategy,More and more trademark owners are awakening their awareness of rights.In judicial practice,descriptive trademark litigation cases are increasing continuously.The legitimate use system stipulated in Article 59 of China's Trademark Law is constantly confronted with doubts in judicial trials.Facing the litigation brought by the descriptive trademark owner.When users defend on the grounds of fair use,they have different understandings and applications in identifying specific elements and related concepts.There is a pressing need to guide the judicial practice.The trial of trademark infringement cases are complicated and changeable,which makes the trial of judges more difficult.In order to adapt to the rapid change of specific tort cases,the constituent elements of fair use system need to be further clarified.Through the analysis of typical cases,sort out works and papers about the relevant laws and regulations of descriptive fair use in China and foreign countries.The author found that there are still divergent opinions on the specific elements and related concepts of the descriptive fair use system of trademarks in academic circles.In specific judicial practice,the view of Judges are also different.The most prominent problem faced by the judicial and theoretical circles is whether the possibility of confusion should be recognized as a constituent element when identifying the specific constituent elements of fair use.On the division of burden of proofs,further discussion is also needed.This article is divided into four parts.Specifically as follows:The first part: through a brief introduction to the “Jierou” case,points out the controversial focus of the case,thus leading to specific disputes in judicial practice about the descriptive fair use system.The second part: starts with the basic problems of descriptive and fair use of trademarks,analyzing the recognition criteria of descriptive marks and trademarks,analysis of the object and essential characteristics of descriptive trademark fair use system.Descriptive signs come from daily life,even though trademark owner obtains the trademark right.However,the protection of the professional rights of registered trademarks still has inherent limitations..The author believes that the object of the fair use system is not trademark,but the rational use of some symbols or symbols identical to trademark.Essentially,the system belongs to a restriction on trademark rights.The third part: through the combination of judicial cases,analysis of three elements of fair use of trademarks commonly existing in China's judicial practice.Combining with American judicial precedents,this paper demonstrates and analyses the constituent elements of judicial and theoretical disputes.Correcting the One-sided understanding of subjective good will elements.Clarifying the possibility of public confusion should not be taken as a constituent element.The fourth part:summarizes the shortcomings of descriptive trademark fair use system in judicial legislation,and puts forward feasible suggestions on the basis of full text demonstration.