Trademark Fair Use System Research

The typical principle in intellectual property law is "exchange", under which there is the legal spirit of equity. Comparing with copyright law and patent law, right limiting sections in trademark law are much simpler. But this doesn't mean it's less important to limit the right of trademark nor is it useless to research on it. On the contrary, in fact, articles on trademark right limiting, focusing on fair use, are quite helpful in keeping competition in the market, protecting the right and interest of customers, ensuring the right of free speech. However, with the enlarging of trademark right especially that of famous marks and lacking more attention given to right limiting, on many occasions it's difficult to take such sections into effect. My goal is to explore the domain of fair use of trademarks for the improving of trademark law.Part Ⅰ is about the meaning of "use of a trademark", the reason and scope for fair use of a trademark. From trademark laws of several main countries or regions, we can say generally that the "use of a trademark" in trademark law is a kind of a commercial use in good faith, going with sell of commodity. Such and of use reflects the essential function of a trademark-to tell people the manufacturer, and also guarantees the function taken into effect. Beginning with the "use of a trademark" will do a great favor to our next explore on the fair use of a trademark.Then, what's the reason for legal protection of the fair use of a trademark? I think we can see it from at least 2 points. Firstly, the elements of most trademarks are from public domain. We shouldn't, and in fact we can't deny the use of original meaning of these words and other symbols. Secondly, the terminal aim of trademark law is to realize the public interest, which means here the interest of customers. The right to learn the truth i.e. to learn basic information about the commodity including the source, is the key of customers interest. What's more, the right to learn the truth refers to the freedom of information in the constitution, a result from free speech, which values more than economic freedom, a result from right of property.So we can make a conclusion that the fair use of a trademark is the use without pay under the permission of trademark law which wants to protect the customer interest and the right of free speech. It includes the descriptive use, collateral use, parody, news report or comment, dictionary embodying, in which the first two types belongs to commercial fair use, and the other falls into noncommercial fair use, we can see:Part His about the elements of the commercial fair use of a trademark as well as its reflection in particular types. As for the elements, there are 3:Firstly, the use is in good faith, without any intention of anti-competition.Secondly, the mark isn't used as a trademark.Finally, and also the most important, the use doesn't lead to confuse or the possibility of confuse or dilution of a famous trademark.Descriptive use is very common, because it's just to use the original meaning of "secondary meaning" marks. Collateral use is also supposed to make, the public learn the truth about the goods. Through precedents, you will see how the elements we mentioned above are used to judge a fair use.In Part HI we discuss 3 particular types of the noncommercial fair use, focusing on the parody. Parody comes of copyright law. Now it is widely used in relation to selling goods, and thus it isn't purely noncommercial, so does it still fall into general speech? Parody always points to a famous mark. A successful parody keeps the public from confusion, but does it dilute the famous trademark? Through the recent case Mattel v. MCA Record, we can see how the American court delt with the parody of trademarks. In the whole process, protection of free speech is of a great weight.