Research On The Systematization Of Regression Of Trademark Use Doctrine

As a typical object of intellectual property,trademark is a kind of intangible property in nature.The reason why it can become the property protected by law is not about the value of the form,but about the goodwill inherent in the trademark arising from trademark use,which can bring the market competitive advantage.And it should be owned by trademark users as a product of management work and prevent it from being stolen or misused.At the same time,from an objective perspective,trademark is essentially an information symbol to distinguish the source of goods or services.In addition to the trademark form,it needs to have a specific meaning to constitute a complete information symbol.And the meaning is to indicate the source of the goods or services by trademark use.Therefore,we should regard trademarks use as the core of the trademark legal system.However,China’s trademark law has been unswerving developing towards trademark registration doctrine,while ignoring trademark use is the basis of the legitimacy of trademark rights,and deviating from trademark use doctrine and the essence of trademark and substantial fairness.The deviation is reflected in the whole process from the formation to the elimination of trademark rights.In terms of the acquisition of trademark rights,we just give priority to the first application and the first use is always secondary,and there is no trademark use requirement.In terms of the maintenance of trademark rights,trademark use also has not been regarded as a necessary condition.In terms of trademark rights protection,the status and standard of trademark use determination are still unclear.What’s more,in practice,the deviation leads to the disorder of malicious trademark squatting,which obviously damages the interests of operators,consumers and fair market competition order,and to the phenomenon of trademark registration without use,which causes serious waste of trademark symbols,administrative and judicial resources and other social public resources.Therefore,it is necessary to standard the deviation of the system,regress to trademark use in a systematic way,and back to the essence of trademark and substantial fairness.The definition of the category of trademark use is the necessary preparation.Trademark use is a special concept in trademark law.Although the definitions of trademark use in different countries and regions are not exactly the same,there are still some commonalities.In theory,the use of trademark should contain the connotation of commercial and source identification.And it is a legal fact that needs to be transformed from evident facts which is transformed from objective facts.And it is free,boundless and open.At the same time,there are usually four general constitutive requirements of trademark use: the main body is the owner or the other one who doesn’t violate his will;the object is a legal trademark with distinguishing feature;it is based on the production and operation needs and has intentions with source recognition;in an appreciable and public and prominent way.In addition,there are other special types of trademark use,intent use,passive use and implicit use.The intent use is preparatory behavior for trademark use.The passive use is the use of trademark or its substitute mark by the public,and its legal effect generally belongs to the trademark owner.The implicit use refers to the use of trademarks only in the background code of the web page,which cannot be directly perceived by the relevant public and thus is difficult to identify the source and is not a real trademark use but still can be an act of unfair competition.The acquisition of rights is the starting point of the system.Therefore,the first step of systematic regression is to standard the deviation of trademark right acquisition system and make it clear that trademark use is the basis of right acquisition.In the historical evolution of trademark rights acquisition,the trademark protection system was developed in the Common law system based on trademark passing off,and the pattern of trademark right acquisition by use was naturally formed.Then most civil law countries had directly established the trademark registration system,while Britain and the United States had also gradually accepted the trademark registration system on the basis of adhering to the principle of trademark use.And finally,regressing to trademark use doctrine to remedy the defects of trademark registration doctrine.As the main branches of trademark law,trademark use and trademark registration constantly wrestle with each other because they have different system values and defects.The pure trademark use can guarantee the legitimacy and substantive fairness of trademark rights,but lack of protection efficiency.And the pure trademark registration is to the contrary.There is actually a contest between fair value and efficiency value.According to the principles of coordination,value ranking and proportion coordination of legal values adjusting,we should adopt the mixed acquisition mode,carry out active substantive examination of trademark use,set trademark use as a necessary condition for trademark registration to achieve more fairness,and adopt loose standards of trademark intention identification to achieve more efficiency value.The realization of trademark value depends on the memory and association of the relevant public that depends on the continuous use of trademark.So the maintenance of trademark is also inseparable from the trademark use.Therefore,the second step is to standard the deviation of trademark right maintenance system and strictly take trademark use as the right maintenance requirement.The maintenance system mainly consists of trademark renewal,cancellation and invalidation,and the value of trademark use is different in specific systems.In renewal,the actual use shall be the prerequisite.In cancellation,it is necessary to distinguish discontinued situations from unused situations and adopting the way combined with active and passive cancellation,and emphasize the truthfulness and standardization of trademark use.In invalidation,the application for registration without the intention of use should be absolutely invalid.Based on these,it is necessary to further clarify identification methods and standards of trademark use.The proof of trademark use is the premise of trademark identification.The collection of evidence and the validity of evidence will affect the final identification result.On the basis of sufficient evidence,it is necessary to focus on the non-use situation that leads to trademark cancellation and invalidity.The non-use in cancellation should satisfy two requirements,continuity and justification.And it should be noted that symbolic use is not a real use.And the non-use in invalidity needs to be judged from the objective situation of registered trademarks and the objective behaviors of registered trademark owner.In addition to these,the complete trademark legal system also includes the right protection system.Therefore,the third step is to standard the the deviation of trademark right protection system and adhere to trademark use as the core of rights protection.The traditional protection of trademark rights is mainly based on the theory of confusion,and the actual use of trademark is the premise of confusion,and the wider and deeper the use is,the wider and deeper the protection of trademark rights will be.So we should take the trademark use as the core of protection,delimit the boundary of trademark protection according to the scope and degree of trademark use,and implement the doctrine of trademark use.Giving strong protection to the pre-used unregistered trademarks,about their right of defense,objection and invalidation,while giving weak protection to the unused registered trademarks,restrict their right to tort relief,raise objection or invalidation,and to transfer and licensing trademarks.At the same time,in the identification of direct trademark infringement,the identification of the trademark use should be a separate,front-loaded requirement.For example,in the case of fair use of trademarks,narrative use,illustrative use and others which don’t have source identification function,can’t be trademark use and can be excluded from infringement.But for indicative use,it does have source identification function.So it is necessary to further judge whether it has the possibility of confusion.And in the foreign case about original equipment manufacturer,the non-public use is not trademark use but can be indirect infringement in some cases.Finally,we should pay attention to the coordination of the trademark use system while regressing to the doctrine of trademark use.Firstly,coordinate the relationship between trademark freedom and public interest protection,strengthen restrictions for the public health protection,like on tobacco,alcohol,unhealthy foods and other goods negative to public health.Secondly,coordinate the relationship between compulsory use obligation and legitimate defense demand,and clarify the exceptions such as joint trademark,defense trademark and defensive trademark of non-profit subject that can be exempted from trademark use obligation.Thirdly,coordinate the relationship between the prior use and the prior registered of trademarks,improve the trademark coexistence system,take advantage of its function of solving trademark disputes and coordinating the interests of registered trademark owners and unregistered trademark owners,and admit the legal coexistence and the coexistence agreement directly on the basis that its damage to the consumers’ interests can be controlled in a limited level.