Study On The Criteria For The Nominative Fair Use Of China

The Nominative Fair use of trademarks is an important type of fair use of trademarks and belongs to the content of the trademark rights restriction system.The system is an effective means to balance the right of consumers to know and the exclusive right of trademark owners to ensure fair market and free competition.There is a great controversy in China’s identification criteria for the fair use of trademarks.Due to the lack of legislation in China,the judicial practice community faces a large dilemma in the handling of trademarks for the fair use of trademarks.In the case of the "FENDI" case,the case of the two-instance court differently decided that the trademark should be used reasonably and reasonably.Through the search,the author obtains the cases involving the fair use of trademarks in the judicial practice of our country,and analyzes the consideration factors of the fair use of trademarks by various courts.Although the indicative use of trademarks has not been rectified in China,the local courts in the judicial trials,the indicative use of trademarks has been recognized as a reason for trademark infringement defense.From the investigation of the identification path of the trademark’s nominative fair use in various courts,it is known that in the judicial practice circles of our country,there is also controversy about the identification of nominative fair use.The focus of the dispute is also whether the requirement of “no confusion possibility” is required.The court holding the two-point view mainly considers the rationality of the trademark usebehavior itself,while the court with the three-dimensional view is based on the consideration of the consumer’s understanding.Since the Chinese law has not yet stipulated the fair use of trademarks,the local courts in the trademark infringement disputes face the defense of the defendant’s nominative fair use.The judges who“cannot refuse the referee” can only use their own understanding to identify the trademark.Whether the rational use is established will not only give the judge too much discretion,but also the standard of identification of the trademark’s indicative and reasonable use will not be uniform because of the different understanding of each judge.This judicial chaos not only undermines the judicial majesty.It will also make the relevant stakeholders feel at a loss.In view of China’s relevant provisions on the rational use of trademarks and the current judicial situation,China urgently needs to clarify the system of indicative and rational use of trademarks at the legislative level and unify its certification standards.There is no concept of " Nominative Fair use of trademarks" in our country’s legislation.Relevant documents on the fair use of trademarks are mostly documents issued by the State Administration for Industry and Commerce and guiding the administrative law enforcement or the local high courts in order to facilitate the trial of lower courts.The released solution documents have problems of low level of effectiveness,narrow scope of application,inconsistent standards,and even failures.Therefore,in order for the trademark to be used reasonably and rationally,this important means is to play a role in China.The key is to clearly and unify a set of effective trademark nominative fair use identification standards.At present,the viewpoints of China’s theoretical circles on the criteria for the fair use of trademarks are mainly the "two essentials" and the "three essentials".The "two essentials" theory includes the subjective goodwill elements and the necessary and reasonable elements of objective behavior,while the "three essentials" theory believes that in addition to the above two elements,there must be a result element of "there is no possibility of confusion." It can be seen that in order to unify the criteria for the indicative use of trademarks,it is necessary to resolve the relationship between nominative fair use and the possibility of confusion.To study the Nominative Fair use of trademarks,we must start from its source.By combing the typical case of the United States,the birthplace of the trademark’s nominative fair use,the author analyzes the consideration factors of the US court’s nominative fair use of trademarks,and focuses on the attitude of the US courts on the relationship between the fair use of the trademark and the possibility of confusion.The development of the US Mark’s nominative fair use certification standards.While the United States belongs to the Anglo-American legal system,although the indicative use of trademarks originates from this,it has always been developed through case law.In view of the fact that China is a civil law country,the author has also studied the development of the trademark nominative fair use criteria in the EU.Although the development of the EU’s trademarked fair use system is later than that of the United States,it has a relatively mature and unified indicative rational use theory and judgment factors.Through the analysis of the court’s indicative use criteria for trademarks in typical cases in the US and the EU,it is concluded that the indicative use of the trademark should be considered in consideration of whether the subjective nature of the user is appropriate and whether the objective behavior is necessary and reasonable.At the same time,whether there is a possibility of confusion is one of the consideration factors for judging whether the trademark’s nominative fair use behavior is reasonable.Through the comparative study between the United States and the European Union,the author believes that the EU’s practice of using trademarks in an indicative and rational manner into culture and clarifying its standards of recognition is worth learning from.The Nominative Fair use of trademarks is an important type of reasonable use of trademarks and has its unique existence.This is recognized in both the theoretical and judicial circles in China,but in its nature,the theoretical community still uses trademarks.And non-trademark use disputes.The author believes that the use of trademarks in commercial activities is indicative of the use of trademarks in commercial use.At the same time,the existence of the nominative fair use of trademarks is of great significance for protecting consumers’ right to know,the freedom of speech of other operators,and maintaining fair competition in the market.Therefore,China should add nominative fair use in the Trademark Law.Provisions to make up for its lack of legislation.The core issue of the trademarked fair use system is the determination of its certification standards.There is no clear indication of the fair use of trademarks in China’s legislation,and the theoretical and practical circles still have disputes about their criteria.There are two main points and three elements in the discussion of the criteria for the fair use of trademarks in the theoretical circle.The second element states that the identification of the trademark’s indicative and reasonable use should be based on the necessity and reasonableness of the user’s view of goodwill and use,while the three elements say that in addition to the above two conditions,there should be no need for confusion.In the judicial practice circles of our country,when the courts hear cases involving the Nominative Fair use of trademarks,the factors that are considered by different courts are not the same.For example,in the "Lenovo" case,the trial court held that the identification of the trademark’s nominative fair use should be considered from the subjective goodwill of the user and the use of the trademark within a reasonable range without prejudice to the legitimate rights and interests of the trademark owner,and the "PRADA" case The trial court is considered in terms of subjective goodwill,the rationality of the use of the behavior and the use of the consumer can not cause confusion.It can be seen that the dispute over the nominative fair use of trademarks is the focus of both the theoretical and practical circles,and whether the criteria for its recognition should include “there is no possibility of confusion”.Therefore,solving this problem will promote the unification of the situation of the fair use of trademarks in China’s judicial practice,which has very important theoretical and practical value.The author analyzes the relationship between the Nominative Fair use of trademarks in the United States and the European Union and the “no possibility of confusion”.It is considered that the fair use of trademarks is not confusing,that is,if the use of behavior causes confusion,then This kind of use behavior must not meet the "reasonable" condition,and it cannot be considered as nominative fair use.Therefore,the author believes that the possibility of confusionshould be taken as a factor to consider whether the use behavior is reasonable.At the same time,the author believes that there are two conditions,namely,subjective goodwill and use behavior,which are necessary and reasonable in accordance with the trademark’s nominative fair use.At the same time,the possibility of confusion should be taken as a consideration for judging whether the use behavior is reasonable.Finally,the author suggests that in determining the subjective goodwill of the trademark’s nominative fair use,the user’s specific use should be used to infer whether the intention is justified;whether the indicative use of the trademark is necessary is mainly based on whether the user can describe the trademark without using another person’s trademark.The nature or scope of the goods or services;whether the indicative use of the trademarks is reasonable is mainly based on whether the use of the trademarks of others by the user can clearly and truly reflect the true relationship between the user and the trademark owner.Specifically,it can be considered whether the user has added descriptive text next to the trademark mark of another person,whether it is prominently used or used in large quantities,whether it is marked with its own trademark,whether it conforms to commercial practice,and whether it causes actual confusion of consumers.