The Research On The Passive Use Of Trademark

This paper, takes the case of "Guang Yun Gong Bing" trademark infringement as an example. The focus of this case is the nature and legal effects of passive use. Whether the passive use of trademark is legal or not? It has been always argued by the Judiciary and Jcademia. The surface is different understanding of the law, but the nature is the balance between "Manufacturer Incentive Theory" and the "consumer protection theory ", between the "formal justice" and the "substantial justice". This paper uses the theory and methods of natural law, demonstrates the passive use of trademark as an objective existence of legal significance. Additionally, this article attempts to expand the scope of the passive use of trademark. It’s not just the using of the public, the businesses are also played a crucial role. Therefore,gives an interpretation for obstacles for the theory, and comes to the view of the passive use of trademark should be recognized.This paper is divided into six parts.Part I: Introduing the basic informatiom of this case and the the important views and classic statement. The following parts analyze the point deeply.Part II: Analyzing the legal status of the passive use of trademark from the three aspects. Firstly, by sduding of the letter of the law, comes into a conclusio that the provision of trademark law system is not clear; secondly, by analyzing of important cases in in recent years, knows that the strict "active" view gradually turns into the "passive"; finally, summarizes the view of the passive use of trademark, and analyzes the "link " theory and the "public use of the mark" theory at the same time.Part III:Through the rules of classical theory of the “American public using” and the “Australian barefoot case” classical theory,deduced the inevitable trend of the passive use of trademark is considered by more and more people in world judicial practice. Summaring foreign Theory Enlightenment and judicial practice on the passive use of qualitative issues.Part IV: Analying the point of the passive use of trademark. The paper focus on the nature, the origin and the using of trademark. To support the view of the passive use of trademark next.Part V: The necessity of recognizing the legal status of the passive use of trademark. To discusse the legitimacy of the passive use of trademark from the theory of natural law, the private attribute of trademark right and so on.Part VI: The advices of the passive use of trademark. First to build a legal model that the public could understand and accept. Next, to amend the related laws and set up judicial interpretations at the same time. Finally,clearly defines the constituent elements of the passive use of trademark.