The Research On The Determination Of Nominative Fair Use Of Trademarks

Nonimative fair use of trademarks is a trademark infringement defense system that has existed for a long time and is applicable to judicial practice.The theoretical basis lies in the theory of trademark rights limitation and the principle of balance of interests.For a long time,due to the lack of legislative provisions,there has been a divergence of views on the nature of the nonimative fair use of trademarks and the requirements for its identification.The of the nominative fair use of the trademarks should be based on the premise that the alleged behavior constitutes trademark use.Then,it is necessary to meet the three requirements,the necessity,within reasonable limits,and no possibility of confusion.The three requirments also applies to the determination under the context of online search keywords and domain names,but internet features should be considered in this process.In the context of network search keywords,it is also necessary to consider factors such as advertising labels and search result pages,while in the context of domain names,it is necessary to pay attention to the expression of the domain name itself and examine the content of the website pointed to by the domain name.In addition,in judging the “possibility of confusion”,it should be noted that the “relevant public” has a higher degree of recognition under the internet background.This paper is divided into four chapters.In Chapter One,there introduces the basic theory of nominative fair use and reveals the current legislation,judicial stuations and problems.It includes the introduction of the meaning,origin,evolution and development,and the theoretical basis of nominative fair use of the trademarks.It also reveals the shortcomings of the current legislative norms and the conflicts in judicial decisions.At the same time,it points out that more factors need to be considered in this process of identification than the general situations due to the complication of internet environment.The Chapter Two specifically elaborates how to determine the nominative fair use of the trademark.It demonstrates the opinions that trademark use is independent and is the prerequisite for the determination of nominative fair use of trademarks by contrasting the controversial views on the nature of nominative fair use.By summarizing the opinions of different judgements,the paper sums up the three specific requirements for judging whether the use constitutes nominative fair use,that is,the necessity of use,the use within reasonable limits,and no possibility of confusion.During this process of determination,the section“possibility of confusion” introduces the view changes in American judicial practice for reference.The Chapter Three extends the discussion on the specific situations of nominative fair use of trademarks in the context of internet.It focuses on online search keywords and domain names and respectively analyzes the identification in this two situations by the three requirements.Also,there separately pointed out what other specific factors should be considered with reference that American judicial precedents and China’s judicial practice.The Chapter Four is Conclusion,to summarize the viewpoints and conclusions of this paper.