Research On The Cognizance Standard Of Trademark Use In Trademark Infringement

As the core concept in trademark law,"trademark use" plays an important role in obtaining,maintaining and protecting trademark rights.However,because the traditional trademark use situation is simple and easy to identify,the role of "trademark use" in trademark infringement is not prominent.However,cognition will change and develop with the development of practice.With the diversification and complication of trademark infringement,the research on trademark use in practice is deepening day by day.In China’s early judicial practice,due to the lack of clear understanding of the standard of trademark use and its positioning in trademark infringement,the basic argumentation logic of related cases is not consistent.It was not until the Pfizer case in 2009 that the Supreme Court established the independent status of trademark use in trademark infringement judgment.The Trademark Law in2013 clarified the purpose of "trademark use"-to identify the source of goods.The Guide to Trademark Infringement Judgment in 2020 reiterated its independent element status,listed specific use cases,and listed the judgment of "trademark use" With the emergence of a series of controversial cases,such as foreign-related licensing processing,keyword bidding ranking,and trademark infringement of TV program names,the identification of "trademark use" has become the difficulty and focus when the court adjudicates the above cases.Under this background,combining with the new trend of judicial practice and theoretical research,it is pointed out by theory and needed by practice to choose the traditional consideration factors and reasonably define their identification standards in order to deepen the understanding and application of "trademark use" in trademark infringement.The identification of "trademark use" should be regarded as an independent component of trademark infringement judgment,and the realization of the status of this independent component has an important impact on the definition of the identification standard of "trademark use".The former is not only due to the explicit requirements of the statute law,but also due to its profound theoretical and practical value.On the theoretical level,the expanding concept of confusion and its relative subjectivity lead to the irrational expansion of the exclusive effectiveness of trademark rights,and a more definite "trademark use" is urgently needed as a precondition for infringement judgment.At the same time,by reaffirming the pre-requisite status of "trademark use",the trademark function involved in trademark infringement can be clearly limited to the source indication function,and the tendency of only infringing on the quality assurance function and advertising function of trademarks can be corrected as trademark infringement.On the practical level,the identification of "trademark use" is of great value to clarify the boundary between trademark law and anti-unfair competition law,that is,to judge whether the trademark law or anti-unfair competition law should be applied to the alleged infringement.At the same time,trademark law is not aimed at relieving the possibility of confusion in any form.In the case of "double identity" presumption of confusion,taking "trademark use" as the precondition of infringement determination can prevent the improper application of confusion standard.In addition,what seems to be "different judgments in the same case" in judicial practice is a concrete analysis of whether the behavior involved constitutes trademark use.Different answers to this question will lead to different results of infringement determination,and the determination of "trademark use" has unique value for understanding such "conflict" cases.In order to realize the above value,we must start with the identification standard of "trademark use".If the identification standard is intertwined with the possibility of confusion,the value cannot be discussed.Therefore,the improvement of the standard of "trademark use" should be based on its "independent status" in trademark infringement,and the key lies in realizing the distinction between the standard level and the possibility of confusion.Therefore,the traditional "consumer identification standard" should be abandoned,so as to separate the repeated inspection elements such as consumer cognition,trademark salience and popularity from the identification standard,and focus on the use behavior itself.At the same time,combined with the objective goal of the identification standard,the specific identification standard should be defined as follows: First,as far as subjective elements are concerned,abandoning the elements of "consumer cognition" does not mean not doing any subjective exploration,but making efforts to objectify the subjective intention of the actor,that is,exploring the subjective intention from objective behavior;Secondly,as far as the use effect is concerned,the trademark use behavior in trademark infringement only needs the possibility of identifying the source of goods;Thirdly,as far as the form of use is concerned,the traditional element of "prominent use" should be understood as being directly noticeable in circulation.Fourth,the scope of commercial activities should be reasonably limited.Only when the economic advantage obtained by the actor is directly related to the trademark use behavior can it be regarded as a commercial activity under the condition of "trademark use".