Study On The Introduction And Application Of Proportional Principle In The Trademark Law

With the continuous development of economy,enterprises and individuals pay more attention to the protection of intellectual property rights.Trademarks,as an important part of intellectual property rights,are constantly highlighting their economic and social benefits.However,protection must be infringed.In recent years,the number of trademark infringement cases in the judicial field is on the rise,which increases the workload of the judicial trial system.At the same time,the increasingly complex cases also invisibly put forward higher requirements for dealing with trademark infringement cases.The principle of proportionality is originally the "imperial clause" in the field of public law,but in recent years it has gradually emerged in the field of private law,including intellectual property rights,which reflects the inclusiveness of the principle of proportionality and the appropriateness in the field of private law.The principle of proportionality can be divided into three levels of operation,which can provide a guiding principle for the trial of trademark infringement cases,and guide the final result to the direction that is consistent with the legal purpose,the infringement is the smallest compared with other means of the same effect,and proportionate to the purpose(safeguarding the interests of trademark owners,promoting market economy).The Trademark Law and its related judicial interpretations also directly reflect the principle of proportionality.The provisions of the Trademark Law on the cross-category protection of well-known trademarks,the protection of unregistered well-known trademarks and the establishment of the right of first use of trademarks reflect the essence of the principle of proportionality to varying degrees.However,it is still impossible for laws and regulations to explicitly introduce the principle of proportionality into the guidance or application of trademark law.In recent years,there have been relevant discussions in academic circles,but a complete theoretical system has not yet been formed.With the development of judicial practice,the principle of proportionality will be gradually introduced into trademark law,and the scope of application in the field of trademark infringement will be increasingly expanded.This research topic will have a long-term practical significance.After reading many related works of the principle of proportionality in detail and combining with its application analysis in trademark infringement judgment,the author finishes by searching for judicial examples.Writing of this article.In general,this paper follows the research idea of "asking questions-analyzing problems-solving problems",and first elaborates the background and significance of the topic.this paper first elaborates the background and significance of the topic,then summarizes the current research situation at home and abroad,comments on it and raises the question of this paper,then introduces the concept,connotation,extension and characteristics of the principle of proportionality,and demonstrates the necessity of introducing the principle of proportionality in trademark law;and then,in chapter 4,it expounds the principle of proportionality.The application of the principle in the current trademark legislation and judicature of our country puts forward that the principle of proportionality has been substantially embodied in the trademark legislation of our country.Finally,this paper argues that the application of the principle of proportionality in the field of trademark infringement should be limited,and it should be applied when the two or more parties involved are in a disparate position.After clarifying the applicable conditions,the author demonstrates the applicable method of the principle of proportionality in the determination of trademark infringement,that is,the specific examination of the three subordinate principles of the principle of proportionality.Then,it chooses three aspects: trademark reverse confusion infringement judgment,well-known trademark infringement judgment and trademark infringement damages judgment.It specifically discusses the individual application of the principle of proportional display in trademark infringement judgment,in order to make some analysis and perfect suggestions on the judicial practice of trademark infringement judgment.