Research On The Indicative Fair Use System Of Trademarks

The first appearance of indicative fair use of a trademark was in a trademark dispute before the United States Court of Appeals for the Ninth Circuit,where the court used it as a basis for trial.Since this case,more parties to trademark disputes have applied this basis,which has led to its continuous improvement in judicial practice.The indicative fair use system of trademarks can safeguard the public interest of society while taking into account the legitimate rights and interests of trademark owners,and has a utility and value that cannot be underestimated.At present,many countries have formally included the indicative reasonable use system of trademarks in the explicit provisions of the law,but our academic and judicial practice circles have discovered the importance of the indicative reasonable use system of trademarks relatively late,and some of the key relevant provisions have not yet reached a unified view.Therefore,the study of the system has important theoretical and practical implications.By analyzing and grasping two typical cases of indicative and reasonable use of trademarks in China’s judicial practice,the paper extracts the main basis of the court’s judgment.The use of case analysis research method,from the selected cases to discover the current China’s trademark indicative reasonable use of some problems in the judicial practice,to reflect on this.Then,a detailed study on the meaning,nature and boundaries of indicative fair use of trademarks is carried out in conjunction with the latest views of the academic community.The paper analyses the elements of trademark use implicit in the express provisions of trademark law and concludes that it should be characterized as non-trademark use.The research pace of foreign research on the indicative reasonable use of trademarks is earlier than our country,and the research ideas and judicial practice experience is more mature,the paper uses comparative analysis research method,the development of the United States,the European Union,Japan’s system to comb and compare,in-depth thinking about the valuable experience and gain inspiration.Based on the current basic situation in China,we will analyze the feasibility of constructing an indicative fair use system for trademarks in China from both the legislative and judicial aspects.On this basis,recommendations are made for the construction of a system of fair use of trademark instructions in our country.In addition to the macro-principles that the system should have been created to follow,the criteria for determining whether an act of trademark use constitutes an indicative fair use of a trademark are clear from a practical and prudential perspective.Among them,whether the element of "likelihood of confusion" should be included as one of the criteria for recognition has aroused alot of controversy in both academic and judicial practice,and the paper,after analyzing and arguing,advocates that it should be positioned as an auxiliary consideration for the recognition criteria.