Research On The Necessity Principle Of Free Use In Trademark Law

Protection of trademark rights,consumer,and fair competition are the three major objectives of the Trademark Law.The necessity principle of free use is supposed to become the basic principle of the Trademark Law because of guaranteeing the specific mark for free use of market entity to achieve the goal of protecting fair competition.The realization of the necessity principle of free use depends on registration reject system and defense system of trademark infringement.The connotation of registration reject system is to realize totally free use of market entity by declining register of marks lack of distinctiveness.In accordance with those indispensable signs,although registered,they can still be used by defense system of trademark infringement within reason.Defense system of infringement contains defense of fair use,trademark prior use,indicative use and exhaustion of trademark rights.By verifying the distinctiveness system through the necessity principle of free use,it can be found that distinctiveness is not for identifying sources but for distinguishing goods and services.Conventional signs is not supposed to acquire distinctiveness by using.Functional marks are restricted to three-dimensional marks,which ignores that graphic marks,color marks and sound marks could be functional.The above aspects should be adjusted in amendment of Trademark Law in the future.By the verification,it also can be found that the current Trademark Law lacks system of indicative use and exhaustion of trademark rights,which can be constructed in the future revision of the Trademark Law.Concerning the existing system of prior user right in the current Trademark Law,it of great significance to comprehend the point of time as "announcement of preliminary examination" and define "the original use scope" as the category of the original goods or services.