Research On The Relationship Between Trademark Use And Fair Use Of Trademark

The empirical analysis of judicial practice regarding trademark use and fair use of trademark shows that the constitution of trademark use excludes the determination of the fair use of trademark,which is the mainstream view in judicial practice.This view leads to two problems,one is to empty the system of fair use,with non-trademark use judgment may replace the trademark fair use;the second is to lead to the same use of trademark infringement and non-infringement of the judgment is established in an awkward situation.In fact,due to the different subjects of fair use and trademark use judgment,different subjects are bound to produce different judgments on the same kind of use.The trademark use is the use in the sense of source identification,and the source identification is the consumer’s cognition,which determines that the trademark use should be judged from the consumer’s perspective;while in the judgment of fair use,whether descriptive use or indicative use,is from the perspective of the accused.The cognition of the consumer should not be included in the elements of fair use.The accused can only ensure that he uses the trademark in good faith to describe or indicate the goods,but it cannot control the consumer’s awareness of such use.Therefore,for the same kind of use,different subjective standards will naturally have different judgments.From the perspective of consumers,trademark use is constituted,and from the perspective of users,fair use is constituted,that is,trademark use and fair use are compatible.Based on the compatibility of trademark use and fair use,the order of the two determinations should be given priority to the determination of fair use,and should be directly determined not to infringe if it constitutes the fair use;if it does not constitute fair use,it is necessary to make a further judgment on trademark use.