| Before judging whether the use of signs belongs to the use of trademarks,such usage has not been determined by any law and belongs to a factual act.Before judging this use,it should be seen as the use of a broad identifier,rather than being influenced by the fact that the symbol has been used as a trademark,directly skipping the analysis of the use of trademarks.In this paper,the usage requiring trademark use is called the use behavior of trademark symbolization.The reason for emphasizing symbolization is to emphasize a more abstract perspective,emphasizing that the logo as a symbol can play multiple functions and carry multiple values at the same time,rather than being used solely as a trademark.At present,the use behavior of sign is becoming more and more complex,but the systematic research on this kind of use behavior is limited.This is because of the lack of such a research perspective,the status of trademark use in the identification of infringement has been questioned,scholars did not combine the use behavior,but from the perspective of pure theory,so that the emphasis on the importance of trademark use is limited persuasive.Therefore,this paper makes a comprehensive and systematic analysis of the use of symbols in order to strengthen the premise role of trademark use in the identification of infringement from a new perspective.Based on the empirical analysis of trademark infringement cases,this paper divides the use of symbols into two categories.The first category is the use of symbols to identify elements related to goods or services.The second type is the use of the identifier as the information to identify the symbol itself.The first type of usage includes the use of the logo to identify the source of goods or services and the use of the logo to identify the content of goods or services.The second type of usage includes the use behavior used to identify the internal information of symbols and the use behavior used to identify the appearance of symbols.The use behavior of identifying the internal information,such as using the logo as a key word on the Internet,is used to identify all kinds of information accumulated in the use process of the logo and carry out information retrieval.Identifying the use of external information,such as using the logo directly as a commodity,such as using a trademark symbol as a pendant or other decorative behavior.At domestic and overseas,there are also research results on the use of signs from the perspective of individual cases.In summary,the characteristics of symbolic use behavior lie in the following three points: firstly,signs can play multiple functions;secondly,the function of source identification does not play a dominant role;thirdly,users and consumers do not have synchronous cognition of use behavior.The disputes caused by this use behavior also have some characteristics,that is,the judgment of confusion possibility in this kind of dispute is overextended;The judgment standard of trademark use is not clear;Relevant public perception is mixed in the above two judgments.Based on the above classification and characteristics of the use behavior,the trademark use from the symbolic perspective should focus more on the analysis of the use behavior itself.Specifically,the trademark use is independent of the judgment of the likelihood of confusion,and the judgment of the likelihood of confusion should be made only after the use behavior is determined to constitute the trademark use.From the perspective of the use behavior itself,we can see that the expansion of the judgment standard of confusion possibility further expands the scope of trademark right,and trademark use is the way to limit the improper expansion of the judgment of confusion possibility.Since different types of use behaviors play different functions,the analysis of use behaviors from the perspective of symbolization should pay more attention to the differentiation of various functions,that is,more attention should be paid to the judgment of trademark use.Symbols according to the communication point of view,and trademarks,as a kind of special symbols,and its use behavior of the role is also play a role in the spread of the dynamic process,that is to say,for trademark use the judgment of the need to look at in a dynamic point of view,combined with the use of the meaning of the logo itself,the user behavior and intention and consumer cognition overall judgment;At the same time,different types of symbol use behaviors have different emphases in the process of judging the use of trademarks. |
