Research On The Trademark Commercial Fair Use

Trademark has the basic function that distinguishes the sources of different goods or services and shows gradually the great economic values in our modern society. there have been some issues about how to balance the interests between the trademark holders and the public. The exclusive right of trademark protects the holders'right. With the development of the Second Meaning theory, this kind of protection expanded into the public domain and broke the balance of interests between the trademark holders and their competitors or the public. In order to rebuild the judicial balance, the defense of trademark commercial fair use came into being. Trademark commercial fair use is a limitation on the trademark right, which plays an important role in balancing the interests between trademark holders and their competitors and protecting the public's right. Comparing with the comprehensive and thorough research on legislation and judicial practice in America and Europe, the amount of research in our country is unsatisfactory. Due to the simplicity of the legislation, Article 49 in the Implementation Ordinance of the Trademark Law, judges have differing opinions on how to determine the defense of fair use, leading to different judgments even when the facts are the same or similar. With the increasing number of such cases, the legislative defect will discourage the legalization in our country. Under such circumstances, this article, consisting of three chapters and not including the Preface and the Epilogue, investigates the defense of trademark commercial fair use and hopefully have some contributions in accelerating its establishment and application in China.Chapterâ… introduces the general theory of trademark commercial fair use. This chapter is divided into two parts. the first part gives a general and overall introduction, and then makes a definition of trademark commercial fair use. The second part tells its content and explains the values of trademark commercial fair use.Chapterâ…¡exploits the development of trademark commercial fair use in America and Europe. Based on their legislation and judicial practice, this chapter analyzes the two types of trademark commercial fair use: descriptive fair use and nominative fair use, and generalizes their criteria.Chapterâ…¢provides some legislative proposals about trademark commercial fair use, based on the investigation of the current situation in China. This chapter begins with the current situation of legislation and concludes that the legislative defect causes the judicial dilemma. In order to improve the current situation, some legislative suggestions are made, based on the nature and criteria of trademark commercial fair use.