A Study On The Identification Rules Of "Trademark Use" In Trademark Infringement ——In Two Typical Cases

Due to the characteristics of novel types and complex situations of trademark infringement cases,it is difficult for the court to follow the general pattern of infringement determination,and only take "confusion" and "misidentification" as the sharp edge to solve the case,and it is difficult to make effective response to the complicated forms of infringement.This problem is particularly prominent in cases such as "keyword use","foreign-related licensing processing" and "TV program infringement disputes".Based on the above problems,the concept of "trademark use" has been introduced in practice since 2009（see（2009）Minshen Zi No.268 Civil Judgment）,and then the theoretical and practical circles began to focus on the relationship between "trademark use" and trademark infringement.Through consulting relevant materials,the author found that the legal basis for discussing the identification standard of "trademark use" in infringement cases is mainly Article 48 of the Trademark Law,the latter half of which provides a legal basis for the identification of "trademark use".However,the provision does not clearly stipulate the "trademark use",which leads to great disputes in the recognition of "trademark use" both theoretically and practically.For now,the theoretical study of the judicial referee and controversies about the "trademark use" is mainly manifested in the following several aspects: first,although the "trademark use" are reflected in the system,but the lack of a clear definition,especially for trademark right verification "use of trademark" and "use of trademark" whether in tort should make the same understanding remains controversial;Secondly,there are still different views on whether "trademark use" should be taken as the premise of infringement.Some scholars believe that "trademark use" is not an independent factor of consideration,but coincides with the rule of possibility of confusion.Finally,there is a lack of unified criteria for the identification of "trademark use",and there are difficulties in the identification of "trademark use" in judicial practice.Based on the above problems,this paper discusses the issues related to "trademark use" from two typical cases by case analysis.First of all,there is no substantial difference between trademark confirmation and "trademark use" in the context of infringement.Both emphasize the role of mark identification and should be understood as trademark use in commercial activities for the purpose of exerting the role of source identification.Secondly,"trademark use" and the possibility of confusion are independent factors to be considered in the determination of infringement,there is no so-called subordination relationship,"trademark use" should be the premise of the establishment of infringement.Finally,when determining whether the use behavior constitutes "trademark use",the actor subject criterion should be adopted,focusing on the significance of the trademark,the actor’s purpose of using the logo,the way of use and the effect.