Research On The Standard Of Trademark Indicative Fair Use

Indicative fair use of trademark is the restriction of trademark right and the embodiment of free commercial expression in trade activities.It aims to balance the interests of all parties in business activities and share social resources more fairly and reasonably.However,the use of others’ marks in the way of instruction belongs to the direct presentation of others’ registered trademarks without permission.This kind of reproduction use behavior is easy to conflict with other people’s trademark rights,so in practice,this kind of use behavior often involves litigation.Therefore,it is necessary to fix the elements of how to identify this kind of fair use of trademarks and give it its due legal status.However,it is a pity that the current legislation of our country has not made specific provisions on the indicative fair use of trademarks,the court’s understanding of the indicative fair use of trademarks is lack of legislative guidance,and the subjectivity of judicial adjudication cases is strong.At present,the standard of trademark indicative fair use in China mainly focuses on the dispute of "three elements" and "two elements",that is,whether the "confusion" element should be included in the standard on the basis of the actor’s subjective good faith and reasonable behavior.It is very important that the subjective intention of trademark user is good for the behavior of using trademark not to be included in the scope of trademark right.However,the understanding of goodness should not be limited to the ignorance of traditional "goodwill",which will greatly narrow its scope.In the current trading environment,it is reluctant to say that users do not know the effect of their behavior.We can appropriately expand its scope to include "subjective integrity",which is more in line with the requirements of the current market situation.Of course,the rationality of the behavior itself is also its proper meaning.What kind of behavior can be used as a reasonable basis in the identification? Based on the summary of the results of the judicial judgment,we should make a comprehensive evaluation and assessment of the scene of the use behavior,whether the expression is prominent,whether the necessary explanation is attached and other factors,as the final basis to judge whether the behavior is reasonable or not.Finally,based on the consideration of litigation efficiency and other reasons,the reference factor of "confusion" factor into the identification standard will only cause the confusion of argumentation elements,and the system is completely regarded as the possessor of confusion possibility,which has no value at all.Therefore,the identification of this kind of use behavior in China is more suitable for the demonstration of "two elements".