The Research On Indicative Use System Of Trademarks

There is no clear trademark indicative use system in China at present.Some courts deny that the indicative use of trademarks has the effect of avoiding infringement,and even the courts that admit this effect have different views on the nature and establishment requirements of this use.The difference of views on the indicative use nature of trademarks lies in whether the trademark logo can play the role of identifying commodities,and the difference of views on the establishment conditions focuses on the relationship between the possibility of confusion and the constitutive requirements,and what are the criteria for determining the rationality and necessity requirements.These disputes are mainly caused by the lack of relevant legislation on indicative use of trademarks in China,and there is no unified understanding of these issues in academic circles.The same case is judged differently in the judicial trial,which infringes on the legitimate rights and interests of relevant obligees and seriously damages the judicial credibility of our country.Therefore,it is of great theoretical and practical significance to study this system.Through the research of foreign legislation and practice,it can be seen that the civil law countries generally define the indicative use of trademarks as non-trademark use,and both the civil law system and the Anglo-American law system have specified the constituent elements of the indicative use of trademarks in detail.Although there are some differences,the constituent elements are both subjective and objective,requiring operators to use other people’s trademarks without intent to infringe others’ trademark rights and interests,and it is necessary to use them and the way of using them is also in line with general rationality.Practice abroad has provided experience for China to build the indicative use system of trademarks.According to the attributes of written law in China,we should add the system of trademark indicative use from the aspects of law,judicial interpretation and other normative documents,and refine the elements and identification standards.First of all,the trademark indicative use,a fair use system,is formally incorporated into the trademark law.Secondly,the constitutive elements of indicative use are supplemented by judicial interpretation.Thirdly,the provisions for indicative use should be supplemented in the normative documents of the corresponding administrative organs,so as to provide the basis for law enforcement for the trademark administration organs.Finally,the relevant provisions of the Anti-Unfair Competition Law will be improved through the minutes of internal court meetings,and the basis for determining the establishment conditions of trademark indicative use will be supplemented.Through the above methods,we hope to promote the indicative use of trademarks to gradually develop and mature in judicial practice.