A Study On The Judicial Determination Of Trademark Nominative Fair Use

Trademark Fair use is a type of defense against trademark infringement.The first paragraph of Article 59 "Trademark Law" of China provides for trademark descriptive fair use,but there is no clear provision for indicative fair use in legislation.In theory,discussions on various aspects of the indicative fair use system have failed.A general theory was formed,and the local courts also failed to form a unified judgment point of view.With the increasing awareness of trademark rights protection,clarifying relevant key issues is particularly important for the judicial determination of indicative fair use.First of all,whether judges need to judge the likelihood of confusion when determining indicative fair use is the core issue of judicial determination.In the case of disputes over whether the indicative use is a trademark use,it is obvious that the argument that the judgment of the likelihood of confusion is excluded by directly using its nature as a non-trademark use is obviously insufficient.In fact,in order to truthfully explain goods or services,although there is a right to use another person’s trademark without the permission of another person,when the exercise exceeds a certain limit and causes consumers to confuse the source,it affects the full performance of the distinguishing function of trademark rights.That is,it damages the rights and interests of trademark owners.Therefore,not causing consumer confusion is the consequence and requirement of indicative fair use,that is,"no likelihood of confusion" is one of the elements that constitute indicative fair use.Indicative use,after all,uses the trademarks of others in exactly the same way.Therefore,the judgment of confusion is more specific than general trademark rights cases.The judge should combine the content of evidence provided by both the plaintiff and the defendant,and purchase from the general consumer.Both the attention given and the way in which the trademark user uses it will consider whether the consumer has caused confusion,and finally reach a judgment on whether it constitutes indicative fair use and whether there is trademark infringement.Secondly,whether judges still need to apply the principle of exhaustion of trademark rights when determining indicative fair use is a matter of judicial practice and theory.The indicative fair use system focuses on the distinguishing function of protecting trademark rights,and the principle of trademark exhaustion focuses on the commendation function of protecting trademark rights.The application situations of the two overlap with genuine resale cases,and they are different perspectives for analyzing genuine resale cases.The difference and distinction between the two are not the reason that prevents the two from being used together,but is precisely the reason for the parallelism.In the case that there is no express provision for both in legislation,applying the principle of exhaustion of trademark rights when determining indicative fair use can strengthen the rationale of the judgment.At the same time,when faced with a genuine resale case that threatens to damage the goodwill of the trademark owner,simply determining that indicative fair use cannot meet the judicial needs to completely resolve the case,and only by applying the principle of exhaustion of trademark rights can the trademark rights be granted.People and consumers provide more comprehensive protection.Finally,in the trial of indicative fair use cases,the rational allocation of the burden of proof can correctly combine the theory of constitutive elements with judicial practice.Since there is no applicable situation where the burden of proof is inverted,the plaintiff must bear the burden of proof for "there is the likelihood of confusion" according to the procedural rules of who claims and who to provide evidence,and the defendant can refute this.This is a kind of non-causing indicative fair use.The confusing use and the defendant’s suggestion that indicative fair use is a negative defense are consistent with each other.Of course,only after the defendant successfully proves that the use of the plaintiff’s trademark is necessary and the purpose is to specify that the plaintiff is the owner of the trademark and the plaintiff’s goods,the judge will treat the dispute as an indicative fair use determination case.