Standards For Judicial Determination Of Indicative Use Of Trademarks

Indicative use of trademark is an important classification in fair use.It refers to the behavior that merchants have to use others’ trademarks in order to describe the characteristics of their own products and services.The setting of the system is conducive to consumers to know the real information of the products they buy.The application scenarios of indicative use are mainly reflected in parts production,maintenance services and other industries.At the same time,there are also some emerging application scenarios in the field of Internet.There are more and more cases of indicative use in social life,but it has not received corresponding attention in the legal level.The lack of legal norms makes the judgment criteria for indicative use in judicial practice very diversified.The standards of judicial practice are not uniform in the intention,mode and effect of use.This issue has been paid more and more attention in judicial practice,and courts in Beijing,Sichuan and other places have issued corresponding trial standards.In view of the problem of judicial identification standard,this paper discusses from the following four aspects:The first part is a brief introduction to the concept,nature and types of trademark indicative use.To study the identification criteria of indicative use,we should first have a basic understanding of indicative use.The nature of indicative use is to distinguish trademark use from non-trademark use,which determines whether indicative use is regulated by trademark law.At last,classifying and sorting out the indicative use cases in practice.In the second part,three problems in the identification standards of indicative use are put forward.The determination of good faith in the use of intention lacks specific rules and judges have different standards for the determination of subjective good faith.In terms of the way of use,the way of trademark expression in judicial practice is very complicated,and the standards in practice are also different.There are also differences in criteria for determining whether the effects of use lead to confusion.At the same time,there are different judicial standards for the derogation of others’ goodwill caused by indicative use behavior.The third part summarizes the local judicial practice of indicative use,and concludes that the identification of indicative use should pay attention to whether the use is necessary and reasonable.Combing the judicial opinions on fair use,the judgment of indicative use is judged from three directions: intention,method and effect.In addition,the relevant cases tried in the United States,The European Union and other countries outside the region are sorted out to provide useful reference for the judicial standards of indicative use.The fourth part,put forward the feasible indicative use identification standard.In terms of intention of use,the subjective should have good faith,which is embodied in the fact that the product information cannot be described without using others’ trademarks.The description of the merchant should be objective and true information,and should not seek the influence of others’ trademarks to make profits for himself.In terms of the way of use,the display of its own trademark and that of others should be distinguished,so that consumers can make clear which trademark is the trademark of the product through the use of corresponding explanatory terms.In terms of the effect of use,the use of others’ trademarks by merchants should not lead to confusion.At the same time,the consequence brought by the indicative use of others’ trademarks is not to derogate the goodwill of others’ trademarks.