Research On Legal Protection Of Trademark Passive Use

In recent years,domestic disputes surrounding the common name of trademarks have appeared one after another.It can be seen from a series of typical cases that after the original trademark owner put his own products on the market,the public for the purpose of simple expression of the image,the product name of the original trademark owner or the trademark attached to the product is spontaneously created a common name to refer to the products produced by the original trademark owner,and these common names has been widely publicized,commented and reported.Over time,these common names have the same effect as the original trademarks,that is,they can distinguish the source of goods or services and the business reputation of the original trademark owners.The use of trademarks for propaganda,reporting,and commenting by the public is called passive use of trademarks in the academic world.However,the concept of passive use of trademarks has not been regulated in the legislation,and its nature has always been controversial in theory.As a result,the courts in practice have different judgments when trying to hear the above-mentioned related cases.In view of this situation,this paper takes the case of "Guang Yun Gong Bing" as the entry point,systematically analyzes the nature of passive use of trademarks and the legitimacy of legal protection of passive use of trademarks.Recommendations for the passive use of legal protection of trademarks.The text of this article is divided into the following six parts:The first part introduces the basic situation of the case in this article,and summarizes the focus of the dispute in this case,that is,whether the passive use of trademarks is a trademark use,and in practice,can you claim that third-party registration is not justified? Based on this,the article will be expanded.The second part defines the passive use of trademarks,and clarifies the concept and type of passive use of trademarks and the relationship with the active use of trademarks.The third part demonstrates the legitimacy of the legal protection of the passive use of trademarks from the four aspects of conforming to the legal substantive justice,protecting the goodwill from infringement,safeguarding the interests of consumers and conforming to the theory of labor acquisition.The fourth part mainly expounds the dilemma faced by the legal protection of trademark passive use.It is mainly reflected in the fact that the current legislation does not expressly stipulate the passive use of trademarks.The theoretical circles have different opinions on the nature of the passive use of trademarks.The judgments of the courts for the same type of cases are not the same.The fifth part takes the United States as an example to conduct extraterritorial research on the passive protection of trademarks.By introducing the judicial practice experience and theoretical results of the United States in the passive use of trademarks,it provides reference and reference for the construction of the legal protection mechanism for the passive use of trademarks in China.The sixth part proposes to improve the legal protection of the passive use of trademarks.On the one hand,it recognizes that the passive use of trademarks constitutes trademark use and incorporates them into the existing legislation;on the other hand,in the judicial practice,the protection standards for the passive use of trademarks are clarified,so that the referee of the case has a unified standard for reference.