Study On Legal System Of Trademark Nominative Use In China

Nominative use is a kind of fair use of trademark,but it is not formally established in China’s trademark legislation,which leads to the different ways of dealing with cases involving nominative use in our judicial practice.Based on this,the paper puts forward the identification standard of nominative use on the basis of the typological analysis of the relevant cases in our practice.This article firstly analyzes the nature of nominative use and illustrates its legitimacy from three perspectives: commercial expression,interest balance and trademark identification function.Then,by summing up the practice of handling such cases in our country,and drawing on the advanced experience of foreign legislation and justice,it is suggested that this principle should be determined from two aspects: subjective good faith and the reasonable of objective behavior.At the same time,this paper tries to refine every element more detailed from the reality of our country.In view of whether “non-confusion possibility” should be used as one of the judgment elements,this paper breaks through the previous research to analyze from the premise of behavior nature,and proves that this element should not be used from the three aspects of saving judicial costs,legal logic and interest balance.In order to perfect the nominative use of trademark in our country,the author puts forward some feasible suggestions by summarizing the existing problem at the end,including using the expression of “fair use” uniformly in judicial practice,clarifying the scope of “confusion”,adding the regulation of nominative use in Trademark Law and clarifying its identification standard in judicial interpretation.