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The Constituent Requirements Of Trademark Use

Posted on:2021-03-17Degree:MasterType:Thesis
Country:ChinaCandidate:L MaFull Text:PDF
GTID:2416330620971810Subject:Law
Abstract/Summary:PDF Full Text Request
Trademark use has important significance and status in trademark law.First of all,trademark use has a certain impact on the acquisition and maintenance of trademark rights,the exercise of trademark rights and the protection of trademark rights;secondly,the main function of a trademark is to distinguish the source of goods or services,and it is the only way to achieve this function.In other words,trademark function is realized under the condition of trademark use.Because only through the use of the trademark can consumers associate with a specific goods or services,and build a corresponding connection between the two.Therefore,it can be said that the use of trademarks determines the "interest-bearing" of the trademark system.But at present,both in theory and practice,the research on trademark use system is not enough,especially the identification of trademark use.At present,there are two typical expressions for the definition of the concept of trademark use: the first is to define the concept of trademark use in combination with the use of the listed part after summarizing the purpose,mode and effect of trademark use,and the other is to specify the use of trademark directly by listing specific circumstances.The Trademark Law of 2013 clearly defines the use of trademarks: The act of using a trademark in a commodity,packaging or container,as well as in a commodity trading document,or in advertising,exhibitions or other commercial activities to identify the origin of a commodity,this formulation belongs to the first of these definitions,but the definition of trademark use in China's trademark law is not strict enough and specific,as a result,the use of a trademark can not be determined by the definition in practice.The recognition of trademark use is in fact the recognition of each constituent element of trademark use,only in conformity with all the elements of the content,can be recognized as trademark use behavior.Based on this understanding,combined with the current trademark law of our country to define the use of trademarks and the judicial practice there are some problems such as the way of identification is not uniform,the requirements of identification are not clear,the process of identification is not convincing and so on,the paper puts forward the justification of trademark use by constitutive elements.It is found that the trademark law of our country is not strict on the constitutive requirements of trademark use and imperfect on the content of the requirements through comparing the relevant legal provisions of extraterritoriality.The current trademark law defines the scene elements and behavior elements of trademark use,and does not specify the subjective elements of trademark users.However,the subjective intention of the trademark user directly influences and determines the purpose of the trademark use behavior,the act of using a trademark without a real intention of using it can not achieve the purpose and effect of using a trademark.Therefore,subjective intention is one of the essential elements for trademark use.Trademark use should be composed of three aspects: scene element,subjective element and behavior element,constructing the constituent elements of trademark use in order to make the standard of trademark use more clear and uniform in judicial application,so,it is natural to consider the use of trademarks from these three elements.In the process of identifying each element,firstly,it is necessary to clarify the characteristics of the element and the purpose of the specification,and then combine the relevant cases,drawing lessons from extraterritorial experiences to determine the method of identifying the element.In determining commercial activity,the authorities should not limit themselves to traditional definitions,that is,business must be profitable,but to examine whether the environment in which trademarks are used is marketable,and the geographical scope of the applicable scenarios;it is often difficult to find sufficient basis for the identification of subjective elements,so it is necessary to combine the objective use of evidence,but also according to the needs of the case should also examine the use of trademark time,use of the scene and the scope of use of such elements;while the determination of behavioral elements need to focus on whether the use of the behavior has the purpose of identifying the source,whether to achieve this purpose.By standardizing the constituent requirements of trademark use and the identification methods of each element,the identification criteria of trademark use in judicial application are clarified and unified,so as to avoid a large number of judicial disputes and waste of judicial resources,however,the constituent elements according to the trademark law belong to the general requirements for the use of trademarks,and attention should be paid to the flexible judgment of each element in the specific application.
Keywords/Search Tags:Trademark, Use of trademark, The constitutive requirements, Subjective intent
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