Research On Trademark Nominative Fair Use

Nominative use of trademarks is an important type of fair use of trademarks,it is also an important and powerful defense in case of trademark infringement.It is of great importance to balance the interests of all parties,safeguard the freedom of commercial speech and promote free and fair competition in the market.Trademark disputes about nominative use of trademarks emerge in endlessly in our judicial practice,but nominative use of trademarks has not been mentioned in current Trademark Law.As a result,the applicable standard of each court is different,the judgment result varies greatly.How to identify the nominative use of trademarks has become a difficult problem in judicial practice.In terms of legal theory,nominative use of trademarks refers to the behavior that the user must use the trademarks of the trademark owner to explain the true information of the products he operates in the process of commercial trade activities.There are mainly two types of nominative use of trademarks: One is to use the trademark owner’s trademarks based on explaining the characteristics and contents of their products;The other is to use the trademark owner’s trademarks reasonably for the purpose of selling the products of the trademark owner.At present,the theoretical and practical circles have not reached a consensus on the constitutive elements of nominative use of trademarks.Through the analysis and research of various theories,nominative fair use should conform to the two requirements: good faith and necessary and reasonable use.In terms of legal practice,foreign countries have a clear legislation on nominative use.Many characteristic cases have also appeared in our country.This article selects 110 typical cases for analysis and research,and finds that the main reason for the problems in judicial practice is that the legislation lacks a fair system of nominative use of trademarks,and the judicial system lacks a uniform judgment standard.Combining with the actual situation of our country and the beneficial experience of foreign countries,the suggestions for improving the development of nominative fair use in China are clarifying the legal status of nominative fair use and perfecting the identification standards of nominative fair use.The identification standards of nominative fair use include subjectively good faith and objectively necessary and reasonable use,but likelihood of confusion should not be included.In summary,this article is based on the basic theory of nominative use of trademarks in China,and put forward some reasonable suggestions for nominative use based on the beneficial experience of foreign countries to protect the interests of all parties.