Reflection On The Trademark Fair Use

Fair use originated copyright law, refers to the unauthorized use of part or all of thecopyright owners’ works, and does not belong to the tort system due to the specialprovisions of the law. Most of domestic scholars have proposed to introduce the trademarkfair use into law field, as the limitation on the trademark rights. They considered that thetrademark fair use is use of another’s registered trademark under certainconditions, it shallbe regarded as an infringement of trademark rights.The author believes that transplant theconcept of trademark fair use in the field of trademark law is not reasonable. As a tag, thereal value of trademark itself is not tag’s design and production of labor value, but thetrademark represents goodwill. The function of a trademark is distinguishing the source ofgoods or services significantly, in order to avoid the buyers being confused on the sourcesof goods or services. Creative knowledge is the object of patents and copyright, using therights holders’ knowledge products would infringe on the rights of their exclusive rights.Trademark has "double meanings" of the commercial marking and the general publicwords. The essence of the trademark fair use is, when trademark is used as a commonvocabulary rather than trademark sense, it is using the public resources and the freedom ofspeech, it does not infringe on trademark exclusive rights and it is legal.Trademark fair use is a false concept. This article has three parts: In the first part, firstof all research is the common sense of "trademark fair use" system. This part starts from itsconcept, characteristics, theoretical basis and analysis etc, to elaborate the basic theory oftrademark fair use ".In the second part, the author questioned the authenticity of the concept of "trademarkfair use", to clarify the particularity of the trademark "fair use" system by comparing the"trademark fair use" condition with the fair use condition of copyright and in the patent.Then the following part discusses the controversial about the concept of "the trademark fairuse".In the third part, the author reconstructs the trademark using system, clarifies therestriction system of intellectual property rights and studies the classification and theparticularity of trademark rights restrictions. The end of this thesis defines the specific circumstances of the "trademark fair use". After removing the concept of "trademark fairuse", the author concludes the original classification with the use of generic sense,none-infringement of commercial use and none-infringement of the non-commercial use.