Study On The Determination Of "Trademark Use" In Trademark Infringement

This paper takes the case of trademark infringement of "crossing the line of fire" and "assault war" as an example,which leads to the determination of"trademark use" in trademark infringement.With regard to the judgment of"trademark use",the academic community and judicial practice unanimously recognized "identifying the source of goods or services" as its core element,but on the specific issues of how to determine "trademark use",there are alleged infringers"active use" or "passive use",the scope of use,Whether the popularity of the original trademark,etc.,needs to be considered.Therefore,this paper attempts to construct a complete theory of judgment,under the premise of adhering to the two principles,further specify the "use with source identification function" principle,so that the"trademark use" in trademark infringement can be smoothly decided.The body is divided into six parts.The first part:introduces the twists and turns of the case,invoking the important evaluation in the judicial document,summarizing the focus of the dispute,and to derive the main problems to be analyzed in this paper,the latter few sections will closely focus on the main issue.The second part:two parts to redefine the "trademark use".First of all,by comparing the two main concepts of "trademark use" and combining the current non-profit organizations to use registered trademarks more in non-commercial activities,for-profit organizations use the Internet for non-commercial use of trademarks,it is concluded that "trademark use" refers to the use behavior with the purpose of distinguishing the sources of goods or services,which is enough to have a commercial impact on the relevant public.In addition,the understanding of"trademark use" is enhanced by distinguishing between "trademark use" and the proper use of trademarks.The third part:By introducing the different positioning of the current"trademark use" in trademark infringement,analyzing the shortcomings of the current views,and re-concluding the positioning conclusion of "trademark use" in trademark infringement,that is,"trademark use" is the prerequisite for judging trademark infringement.The conclusion not only clarifies the relationship between"trademark use" and "confusing possibility",but also provides research significance for the study of "trademark use" behavior in trademark infringement.The fourth part:Analysis of the two principles that must be followed in determining "trademark use" in trademark infringement.It is proposed that in trademark infringement,the judgment of "trademark use" must first determine that the alleged infringer is "actively used" the trademark logo involved,and then the use of the act shows the role of "identifying the source of goods or services".The fifth part:Because the "initiative" certification of the "active use" principle of the alleged infringer is quite difficult,and only when the trademark logo involved in the alleged infringer's "active use" has the object effect of showing the source of goods or services,can the "trademark use" be established.And the determination of"identifying the source of goods or rervices" is controversial in academic circles and practical activities,"herefor,this section will specifically explain the "use with source identification function" as the one determination principle of "trademark use"in trademark infringement.By decision subject,the alleged infringer to use the trademark logo in the way,scope and degree of the four aspects of the argument,positively affirmed the "identification of the source effect" need to consider the above-mentioned specific factors,strengthen the identification of using the principle of "source identification function",for the "trademark use" judgment to build a complete and feasible scheme.The sixth part:Conclusion and Prospect.First of all,by applying the above-mentioned method of determining "trademark use",re-evaluate the case that leads to the main problems of this article,and draw different conclusions from the judgment made by the trial court,that the defendant's use of the trademark logo involved in the case,although it belongs to the "trademark use",but does not constitutes direct trademark infringement,but constitutes unfair competition.At the same time,the "trademark use" determination system built by myself is full of period,I hope that the method of judging can be used in practice,to solve the judgment problems of "trademark use" behavior in trademark infringement.