Research On The Passive Use Of Trademarks

The basic meaning of the existence of brand is making consumers and the public acknowledge the source of commerce or service,and the 48 thclause of the current Trademark Act has defined that “recognizing the source of commerce” is one of the essential standards for so-called “use” in the Trademark Act.When speaking of the subject and way to use the trademark,the traditional concept considers that the behavior of using the trademark means all commercial using behaviors of a trademark owner using the trademark on his or her commerce or service.The subject must be the trademark owner and the way of using must be using the trademark on the commerce,packaging or container,and the commodity trading instrument,besides,his or she can also use the trademark on publicity,exhibition,and other commercial activities.However,with the cases of Lafite,Guang Yun Gong Cake,etc.,the judicial circles and the scholar circles rethink about the connotation and extension of trademark use.Lafite,Guang Yun Gong Cake,Rover,Sony Ericsson,ofo Bike,etc.are not the registered trademark,and some of which even have never acquired the authorization from the merchant.However,after those brands were put into the market,the public like the consumers and the press considered these as the official brands and replaced them with the brand provider.After being used by the public for a long time,these items,which are not belonging to the authentic famous brands,however,have built a close connection with the brands.They definitely work as the basic function of“recognizing the source of commerce” stipulated in the Trademark Act.So whether should the accumulated goodwill of the famous brand belongs to the former trademark owner? And if there is a third party applying for registration with the same trademark name,how should we affirm the infringement act? There aren't abundant legal basis on these kinds of questions.In order to solve the problem of the protection of the trademark identification and commercial interest ascription,some scholars put forward a "passive use theory",which defines the behavior of setting up a close connection between the special goods having been used by the public for a long time with the brand as the passive using behavior of the trademark.However,the passive use of trademark has continuously been causing new contradictions and disputes,and the legal lacuna on that issue will make the free-ride behaviors unscrupulous,which could damage the benign competition in the market and hurt the active feelings of the trademark owners.On the other hand,it would cause that many same types of cases might have totally different results of judgement made by different judges.In the process of appealing,the judicial resources are wasted,what's more,the judicial authority would be hard to kept.People start to focus on and discuss the concept of “passive use” because of the trouble they have met in reality,but whether or not the concept of passive use could be put into use successfully and legally still has great debates in judicial practice.The controversy mainly focuses on whether or not the passive use is contained in the meaning of trademark use;if passive use is reasonable under behaviorism and consequentialism?and is the essential meaning of trademark laws tending to protect the interests of consumers or that of operators?Focusing on the disputes above,the author has made a comparison research on the theories and cases between at home and abroad,and thinks that it is essential to have trademark protection for those recognizable brands used by the public and the passive use theory is able to fill in the gap in relevant stipulations in present Trademark Act of our country.Hence,the author bases on the forming process of the passive use theory,defining the concept of passive use from the aspects ofjurisprudence,the principle of trademark laws,and the meaning of trademark,and analyzes the value of researching the passive use theory to the judicial practice in our country,finally,the author gives advice for having a classified suitable passive use theory on recognizable brands used by the public usually.The paper has been divided into three chapters.Chapter One: Illustrate the concept of passive use by researching and analyzing the forming process of the passive use theory on the brands in our country.Chapter Two: Illustrate the academic and practical value of researching the passive use theory of brands and further provide the qualitative standard of the passive use behaviors on brands by making a contrast of the protections and the research status on recognizable brands between at home and abroad.Chapter Three: Combining the latest case,the author provides the suggestion on using a classified passive use way on trademarks and relevant standards,besides,the author provides a theory of limited passive use of trademarks.