Research On Fair Use Of Trademarks

A trademark is a sign that carries commodity reputation,its role is to identify the source of goods or services.The expansion of trademark rights is the general trend in the era of knowledge economy.However,that cannot be at the cost of unreasonably damaging the public’s freedom of expression and market competition.Rights are limited though,otherwise"rights" will be transformed into "powers" and become "tragedies of the anti-public".In recent years,there have been frequent incidents of trademark rights abuse,especially the incident of Green pepper "touching porcelain-style rights safeguard” in Sichuan province has attracted widespread attention from academia,judicial practice and the general public.The Balance of Interests runs through the trademark law,and the fair use of trademarks is the cornerstone for realizing the purpose of trademark legislation.There are disputes among Chinese academic circles on the concept,object,expression form,and judgment criteria of fair use of trademarks.Theoretical differences have brought the adverse consequences of legislative lag,and the lack of legislation has brought difficulties to judicial practice.There are different views in Chinese academic circles on the object of fair use of trademarks,such as "the theory of trademark","the theory of trademark rights" and "the theory of trademark symbols",all of which have certain defects.A narrow interpretation of the "trademark symbol" is preferred in this paper,and the fair use of a trademark is the use in the non-trademark sense that does not damage the function of the trademark to identify the source.The fair use of trademarks is necessary for the balance of interests,the requirement for prohibiting rights abuse,and the pursuit of fairness and justice.In addition,it also conforms to the assumption of fair economic man and can produce positive social external effects.The typical commercial forms of fair use of trademarks are descriptive and indicative fair use respectively,as well as other non-commercial fair uses such as commentary,parody,and lexicography.Regarding the criteria for judging the fair use of trademarks,there are "Two Elements Theory" and "Three Elements Theory" in academic circles.Among them,the "Two Elements Theory" is to judge the subjective and objective factors,and the "Three Elements Theory" is to add the condition that there is no possibility of confusion on the basis of the "Two Elements Theory".The fair use of a trademark can tolerate a certain degree of confusion,and the possibility of confusion is not a constituent element of the fair use of a trademark.There are different expressions in the academia on whether it is "fair use" or "proper use" of trademarks.Our country’s newly revised "Trademark Law" in 2019 still adopts an enumerated legislative model,which lacks provisions on indicative fair use.In judicial practice,the relationship between the fair use of trademarks and the likelihood of confusion is unclear,there is a lack of unified consideration factors for the judgment of fair use of trademarks,different judgments in the same case and lengthy litigation procedures have negative social external effects.In order to standardize legal terminology,it is necessary for academia to uniformly express the fair use of trademarks.The relevant provisions of the Trademark Law can be revised by adopting a legislative model of enumeration plus generalization,and relevant legal provisions on indicative fair use can be added.In judicial practice,in order to reduce judicial costs and maximize judicial benefits,it is necessary to regulate the abuse of trademark rights,clarify the prerequisites for the fair use of trademarks in the judgment of infringement,and standardize the consideration factors for the fair use of trademarks.A consumer survey method can be introduced to determine the fair use of a trademark.