| The trademark nominative use is the embodiment of commercial freedom of expression in commercial trade activities.It can promote free competition,the establishment of a fair market competition order,and the development of commercial transactions.At the same time,the trademark nominative use can protect the legitimate rights and interests of consumers.However,since nominative use is a direct reproduction of the trademarks,it is possible to incur conflicts with the trademark holders.In practice,trademark users are frequently litigated.At present,due to the fact that the trademark laws and regulations do not clearly stipulate the nominative use,when the judges deal with the disputes about nominative use,the judgments are quite different from case to case,because of different standards.It should be noted that the controversies about the legal nature of nominative use,the relationship between nominative use and likelihood of confusion,the constitutive requirements of nominative use,which have become a problem that the publishing and legal fields need to solve.In view of the above dilemmas,this paper starts from the status quo of the disputes and explores the theoretical controversy and practical judgment of nominative use.The full text is divided into four chapters:The first chapter explains the definition and type of nominative use,and clarifies the differences between nominative use and descriptive use.Then,this article discusses two primary disputes: the legal nature of nominative use and the constitutive requirements of nominative use.By summarizing the opinions of academia and the judiciary,this chapter lays the theoretical foundation for the following.The second chapter,studies the status quo of nominative use in detail from two aspects: Firstly,it summaries the legal provisions of nominative use,then points out the deficiency of legislation in China.Secondly,it combines the judicial case and analyze trial idea and judge’s approach,then points out serious problems of judicial determination of nominative use.The third chapter introduces the useful experience of extraterritorial nominative use.Nominative use arises and develops in judicial practice in the United States,so this part focuses on the different attitudes towards nominative use of US courts.Moreover,compares EU,major European countries and Taiwan on the legislation and judicial case of nominative use.The last chapter puts forward some suggestion for the construction of trademark nominative use.By proposing an idea for the constitutive requirements of nominative use,this article states that goodwill of the subjective aspect and necessity and rationality of the objective aspect are needed.It is clarified that nominative use can coexist with the likelihood of confusion.This article try to establish a reasonable boundary for nominative use. |
