Study On Indicative Use System Of Trademark In China

The Trademark Law has always attached great importance to the protection of the exclusive right of trademark,on the one hand,because the acquisition of the civil right of exclusive right of trademark by the market participants through the legal procedures will be conducive to the market development of the market participants,and will also strengthen the competitiveness of the market participants and thus improve their revenue;on the other hand,the efficient development of the market participants will promote the growth of the overall economic level of the country.However,if the trademark owner is granted the absolute monopoly of the trademark,it will somehow inhibit the development of the market,so it is very important to allow others to use the trademark owner’s trademark under certain circumstances,which has led to the trademark fair use system gradually began to attract heated discussions,and the trademark fair use system of trademark indicative use has gradually entered the public’s view.The trademark descriptive use is clearly stipulated in the Trademark Law,but the trademark indicative use system is not formally specified in the Trademark Law,although there are relevant provisions in some documents of relatively low validity,but there are still unclear provisions.At present,the academic circles have slightly different opinions on the issues related to this system,and the number of cases related to the indicative use of trademarks in practice is increasing year by year,but the courts around the world do not have a more unified adjudication ideas and views,which leads to a large difference in the trial results of similar cases.The focus of the debate is mainly on whether the indicative use of a trademark is a trademark use or a non-trademark use,how to judge the constitutive elements of the indicative use of a trademark,and whether the possibility of confusion is included in the constitutive elements.These problems have not been solved through the four amendments of the Trademark Law.Through visual analysis of the existing cases in judicial practice and research on the views of relevant scholars,the author found that the problem has not been solved for the following two reasons: First,because of the late establishment of China’s trademark indicative use system,the public has not paid enough attention to trademark rights and interests,and the economic benefits of the case itself are not high due to limited judicial resources.Has not been able to attract attention,the second is due to the existence of too many views and doctrines in practice,has been in the middle of controversy.The author believes that despite the divergent views in the theoretical circles,some commonalities can still be found.Therefore,we should base on the essence of the indicative use of trademarks,and at the same time take into account the local characteristics of China and draw on overseas experience to sum up a relatively reasonable scheme,so that the indicative use of trademarks system is more operable and practical.This paper is divided into four chapters as follows.The first part defines the concept of indicative use of trademarks and clarifies the essence of indicative use of trademarks.The first part defines the concept of indicative use of trademarks and clarifies the essence of indicative use of trademarks.It is argued that indicative use of trademarks refers to the use of trademarks by non-trademark owners to indicate the source of the goods they sell or the scope of services they provide,subjectively in accordance with the principle of honesty and credit,and objectively in accordance with the necessity and appropriateness of the use.In the second part,it is pointed out that at the legislative level,there are fewer normative documents on the indicative use of trademarks in China,and the current documents with provisions on this are of low validity and not perfect in legislation;in judicial practice,some courts still have to consider whether the use of the trademark user has caused confusion with the goods of the trademark owner,and believe that only if it does not cause confusion can the indicative use be established.Some courts also have different views on the constitutive elements of trademark indicative use,such as "two elements","three elements" and "four elements".The author analyzes the above situation one by one and summarizes the problems that need to be solved,so as to make the following suggestions for improvement.In the third part,since the development of the trademark indicative use system in the United States,the European Union and other countries and regions is relatively well developed,there are many places worth learning from,and through the analysis of their legislative development and judicial practice one by one,the part that is suitable for China’s local conditions will be applied to China’s trademark indicative use system.In the fourth part,the principles for the establishment of China’s trademark indicative use system are clarified;the elements of trademark indicative use are analyzed in terms of subjective good faith and objective behavior to meet the necessity and appropriateness;and the factor of excluding the possibility of confusion from the elements of trademark indicative use is clarified,because the natcure of trademark indicative use is non-trademark use,the burden of proof belongs to the plaintiff,and the possibility of confusion is not related to the trademark.Finally,through the analysis of the above issues,a more reasonable adjudication path is concluded.