Research On Nominative Fair Use System Of Trademark

Nominative use refers to a trademark system in which the seller or service provider uses the trademark of the owner in good faith and reasonably for the purpose of indicating the true information of the products or services provided by itself,but does not infringe the trademark right.The Ninth Circuit Court of the United States creatively put forward the concept of nominative use in a trademark dispute case tried in 1992.The judge Kozinski who tried the case clearly regarded nominative use as a supplement to the limitation of trademark rights,and put forward the standard of ‘three elements’.Up to now,the academic and judicial circles have been arguing about the difficulties of nominative use,such as the determination of its identification standard or the connection with the confusion theory.Therefore,the study of this system has important theoretical and practical significance.Throughout China,the provisions on nominative use mainly exist in the administrative regulations issued by the former State Administration for Industry and commerce.Although these documents have a low legal level and are provisions made for specific fields,the existence of these documents clearly indicates the existence of nominative use in China and recognizes the system to a certain extent.In addition,in order to solve the problem of lack of legal basis in cases involving nominative use,some local high courts in China have issued some documents by means of guiding opinions to refine the provisions of the system.China’s current laws and regulations have not yet stipulated the nominative use.However,there are a large number of cases related to this in the judicial judgment,which leads to the risk of different judgment standards due to the differences of judges’ consideration standards in practice.Therefore,in the face of the emerging cases involving nominative use,it is urgent to speed up the pace of clarifying the legal status of the system in our country and make the judges have laws to abide by in the trial of such cases.In a word,China should take the provisions of foreign countries on nominative use as a reference guide,and should not blindly apply the template of other countries,so as to create an nominative use system suitable for China’s actual social situation.On the construction of the nominative use system,the main ways are as follows: first,clarify the legal status of the trademark nominative use in China from two aspects: the establishment principle of the trademark nominative use system in China and the perfection of Article 59 of the trademark law;Secondly,from the two elements of goodwill and the necessity and rationality of use behavior,we should construct the identification standard of trademark nominative use,and‘no possibility of confusion’ should be excluded from the identification standard;Finally,from the perspective of judicial application,it is pointed out that the court can conduct the trial of nominative use cases from the following two stages: the first stage determines whether the trademark is used or not,and the second stage identifies whether it meets the identification standard of nominative use.