| At present,there are many theoretical disputes of the identification of trademark nominative use,such as whether nominative use belongs to trademark-use,the nature of the defense of nominative use,and whether “no likelihood of confusion” is one of the identification requirements.In view of the above three theoretical disputes,many scholars hold different views,which cannot be concluded.In judicial practice,the plaintiff and the defendant have a big dispute about the result of the judgment.And there are conflicts of views between different levels of courts.Chinese courts have different cognition and operation paths for trademark nominative use: judgments in recent years reflect 8 different requirements and 4 identification paths.The identification mechanism of trademark nominative use is as follows: firstly,both the legislative norms and the academic connotation indicate that the trademark nominative use does not belong to the trademark-use,which has been supported by most judicial practices.Secondly,the trademark nominative use is a non-infringement defense that belongs to the factual defense.The reason is that,from the perspective of the constitution of infringement,nominative use itself is a non-infringement which does not conform to the constitutive requirements of trademark infringement.In addition,the argument logic of “infringement-blocking theory” cannot be established.And “noninfringement theory” has been widely adopted in judicial practice.Thirdly,based on the purpose of the system,the rank of the recognition stage and the reference of the comparative law,the “likelihood of no confusion” is not the identification element for nominative use.Different from the constituent elements,the identification elements of nominative use are only “necessity” and “rationality”.Finally,the identification stage,identification elements and the subject of proof responsibility of nominative use identification and likelihood of confusion analysis are so different that there is no way to confuse them.The standard of trademark nominative use should be perfected from two aspects of legislation and judicature.In the aspect of legislation,the trademark nominative use rules should be constructed.One is to establish the fair use clause in the trademark law;the other,the constitutive elements and consideration factors of nominative use should be explicated in documents such as law and judicial interpretation.At the judicial level,the standard of identification of nominative use should be amended mainly from the following three aspects: first,explicit the identification stage of nominative use defense;Second,the plaintiff should prove a higher degree of likelihood of confusion;the third is to adopt the three-step method of behavior nature recognition,elements recognition,interest balance principle test. |
