Research On The Fair Use Of The Registered Trademark

With the development of the functional evolution of the trademark,the trademark included more and more commercial value .The change of protection mode have also taken place. In theory, although the argument of the trademark,"monopolizing doctrine"and"the instrumentalism",has never stopped,in practice,the expansion of the resources of the trademark,"confusion theory"and"Legend theory"lead to the appearance of the theory of trademark rights based on the intangible assets. The scope of the Trademark is also growing with the tendency of the expansion. With the theory of"secondary meaning"developing, trademark contains larger public attribute,personal interest expanded and the balance of the interest broken down. The expansion of personal right is blind, so a theory of the system which prevents the expansion is necessary to correct the imbalance in justice. Fair use of the trademark is one of the ways to limit the expansion of trademark. In the theoretical research,the connotation and extension of fair use is far from system analysis. We should clarify the basic concepts which can be clearly defined the connotation and denotation of the fair use. The object of fair use of the trade mark is the trademark rights rather than trademark itself. If we confuse this concept ,we may cause the dislocation of the fair use. In many countries,"The use of a trademark"identified trademark infringement play an important role. The object of fair use is the prohibited items, rather than exclusive rights which decide the use of the fair use should be non-trademark use. The traditional standard of judgment of fair use includes goodwill,non-use of the trademark and not cause confusion or dilution. As the essence of the trademark law and the logic of the system,this paper doubt that the standard of judgment of fair use should not include not to cause confusion or dilution of the subjective criteria.