Research On The Standard Of Indicative Use Of Trademarks

With the continuous strengthening of trademark law to protect trademark rights,the system of fair use of trademarks has gradually attracted attention.As an important form of rational use,trademark indicative use has not been formally established in China’s Trademark Law,but in judicial practice,it is often recognized as an important defense of infringement in the courts.Nevertheless,whether the use of trademarks constitutes indicative use or not,different courts often produce different results,and the main focus of the different results is the ambiguity of the criteria for determining the indicative use of trademarks.This paper is divided into four parts to discuss the identification criteria of trademark indicative use:In the first part,the definition of trademark indicative use is sorted out and summarized.It is the trademark user who uses trademark owner’s trademark in good faith and reasonably to indicate his business status and commodity characteristics.This is important meaning to counterpoise the public interests and forbid the misuse of trademark rights.Secondly,starting with the legislation and judicature of our country,this paper analyses the legislative and judicial situation of trademark indicative use.As we can see from the research articles,there are no provisions on the indicative use in our law.Only when the indicative use of trademarks is mentioned in the administrative regulations,not only the level of legislation is low,but also the problems encountered in our judicial practice are not solved.The second part,mainly on the indicative use of trademarks in the elements of the specific overview,respectively,from good faith use,reasonable use,confusion possibility of three aspects.Among them,the most controversial point in academic circles is whether confusion theory should be considered in the indicative use of trademarks.Confusion is the premise and foundation of trademark infringement,but the use of trademark which constitutes confusion does not always cause infringement.Therefore,from another point of view,trademark infringement can be defined from whether the source function of trademark identification is destroyed,because the essence of trademark protection lies in the protection of the only link between trademark and trademark owner,without destroying this link,trademark infringement will not be constituted.The third part compares and studies the emergence and development of trademark indicative use standards abroad,and finds out that trademark indicative use in the United States has experienced a repeated process of confusing factors;while in the European Union,trademark indicative use is a top-down development process.Examples of classical cases,compared with China,combined with China’s national conditions,lay a good foundation for the formulation of indicative use of trademarks in China.The fourth part puts forward advice on perfecting the standard of indicative use of trademarks in China.Firstly,it elaborates the subjective and objective identification criteria,and holds that the indicative use of trademarks should not contain elements without confusing factors.Secondly,further analysis of the reasonable boundaries of trademark indicative use identification standards,that nothing is completely isolated,non-interference,in the identification of trademark indicative use,certain confusion can be tolerated.