| Trademark use refers to the use of trademarks in commodities,commodity packaging or containers and commodity trading documents,or in advertising,exhibition and other commercial activities,to identify the source of commodities or services.Due to the different subjects,purposes and stages of trademark use,China divides trademark use into three categories.In the stage of trademark registration,"trademark use acquired",after trademark registration,"trademark use in trademark maintenance",and "trademark use in trademark infringement" of the unauthorized subject.Different from the trademark use in the acquisition and maintenance stage,the main body of trademark use in trademark infringement is the unauthorized user,that is,the infringer,the non trademark owner.The use of infringement is always an important issue in the identification of trademark infringement.At present,in the practice of our country,to identify the trademark use in infringement,we need to determine whether the used trademark has the function of identification,whether it can constitute the trademark use,and further analyze whether the trademark causes confusion among the relevant public,whether it infringes the legitimate rights and interests of the trademark.The research on the determination of trademark use in infringement determination involves the demonstration of the reasonable status of "trademark use",the definition of relevant actions,the difference and connection with other infringement determination requirements,and the criteria for use determination.The above problems are very necessary.There are four parts in this article.The first part is an overview of trademark use.Starting from the concept,analyze the connotation of trademark use,and understand and analyze the different types of trademark use.By comparing the different types of trademark use,it will pave the way for the determination of the related use behavior in the trademark infringement below.The second part is about the specific content and constituent elements of the determination of the use of trademarks in trademark infringement in the current Chinese legal regulations and practices.And the research on the determination of trademark use in infringement in foreign countries and other regions.This section is a summary of the content of China’s current trademark use certification and its constituent elements.By describing the legal provisions and relevant practices of the determination of trademark use in infringements in foreign countries or other regions,we will find out the deficiencies in China’s legislation and practice,and draw on the excellent experience of other countries.The third part is to analyze the problems existing in the trademark usage system in the determination of trademark infringement inChina.The academic circles of our country have disputes on related theories,and the rationality of trademark use cannot be determined.In the relevant laws and judicial practice,there are problems of incomplete legislation and inconsistent identification standards.The fourth part is to propose solutions based on the existing problems.The first is to clarify the reasonable status of trademark use in trademark infringement;the second is to improve the relevant legislative provisions;the third is to unify the determination standards in judicial practice. |
