The Trademark Reasonable Use Of Research

Fair use system of trademark is vital for the system of the restriction of trademark rights and also the essential role of the system of advantage balance of intellectual property rights. Fair use of trademark stipulates that the party who is not the trademark owner, based on the justice and reasonable intent, not necessarily having the trademark owner’s or the non-registered well-known trademark right-owner’s consent, use other party’s trademark or the symbols same as or similar to the other party’s trademark in order to descript one’s own products or service without causing unreasonable confusion or misrecognition of the public or dilution the trademark of the trademark owner or the right-owner of the non-registered well-known trademark. In this circumstance, the trademark owner fails to claim the infringement liability for such use.The object of fair use of trademark is trademark or symbols same as or similar to trademark. Fair use of trademark can be classified to two types-descriptive fair use and nominative fair use. The elements of fair use of trademark include subjectively "in good faith", normal use and none unreasonable damage while the limited confusion shall be permitted to exist. The justification of fair use of trademark can be the protection of consumers’legal rights, anti-unfair competition, trademark owners’ abuse of rights and the "secondary meaning" characteristic of descriptive trademarks.The characteristic of descriptive fair use is that the trademark used by the user is not the other’s trademark but the symbols are just same as or similar to the other’s trademark in appearance. If this type of use would be same as the other’s trademark in appearance, it would just be the use of the "primary meaning". This type of use shall be good faith use without causing the trademark owner’s unreasonable damage. Nominative fair use distinct from descriptive fair use is that the trademark used by the user is the other’s trademark and his products or service cannot be recognized by others if the user does not use the involved trademark, including the difficulty of description or the relatively high cost of adopting the other substitutive approaches. And also the degree of and extent to the use of the involved trademark shall be limited to reasonable recognizability of the products or service and the user must conduct none trademark-related behaviors that state the connected relationship with the trademark owner.Fair use system of PRC has the problems of indefinite concept, non-judging standards of fair use, low level of the legislation, unspecific structures, over simple regulations and the like. Therefore, fair use system of trademark shall be introduced into Trademark Law.