Study On The Identification Of Trademark Nominative Fair Use

With the rapid development of commodity economy,the scope of circulation of commodity is wider and the methods are gradually increasing,and the production of many parts and components around specific products has also emerged.Corresponding to the busy economic activities is the increase in trademark infringement activities and the increased awareness of the protection of the private rights of trademark holders.For example,the production and sales of a well-known car are often accompanied by the production,processing and replacement of its parts,as well as a series of automotive repair and maintenance services.In this process,it is the most convenient way for service providers or parts processors to use the car’s trademark to illustrate the relevant information about the services and products,and the trademark holders often put forward that such use infringes their own private rights,the nominative fair use of trademarks is closely related to this type of behavior.Nominative fair use refers to the use of others’ trademarks to establish reasonable connections under certain circumstances to express information about the goods or services that they sell.The principle of nominative fair use is not clearly stipulated in our national legislation.It is mentioned in only a few high court’s interpretations.This corresponds to the avoidance of legislation.Judicial practice has a relatively positive attitude towards nominative use.However,whether judges or scholars have different opinions on the determination of nominative fair use,a lot of research is still needed,especially to discuss the justification basis of nominative fair use.This article believes that on behalf of Chinese situations,the establishment of a separate nominative fair use rule will develop the commodity economy,enhance the stability of judicial decisions,and play a guiding role for ordinary businesses.In addition,after comparing the constituent elements of c fair use,it can be found that,combined with the development of current confusion theory,nominative fair use can also coexist with a certain degree of confusion,and the possibility of not being confused should not be regarded as a necessary constituent element.This article will discuss the following aspects of nominative fair use:Firstly,it is necessary to analyze the status of nominative fair use.From a legislative point of view,the nominative fair use principle has not been officially recognized by the trademark law and its related regulations.This is totally different from the descriptive fair use.From a judicial point of view,there are two disputes about nominative fair use.On the one hand,there are still doubts about whether it is necessary to establish a separate nominative fair use rule.Some courts use the traditional trademark infringement test law in the trial directly.On the other hand,the specific elements of nominative fair use have not yet been fully unified,and there are still differences in whether the possibility of confusion is an essential element.In view of the above differences,this article believes that the main reason is that the current research on the nature and legitimacy of nominative fair use still has many deficiencies.Secondly,We need a more detailed analysis on the necessity of the nominative fair use test.One of the important reasons why it is necessary to establish a separate nominative fair use principle is that the nominative use of the principle as a kind of right limitation and exception can prevent the continuous expansion of trademark rights,and there are situations in which trademarks must be used in commercial activities on a practical level.The use of expressive functions can guarantee the freedom of commercial speech.The research on the basis of legitimacy helps us understand the necessity of nominative fair use and its identification standards.We must take the balance of public interest into account.In addition,the traditional trademark infringement applies to the nominative use such as the resale of genuine products,which tends to be biased,so it is necessary to establish a special identification method.Finally,in view of the various problems,how to improve the identification of nominative fair use is the key.In order to solve this problem,a comparative analysis can be used to learn from the experience of other countries.The establishment of the statutory law of nominative fair use by the European Union enlightens that our country should also establish the legal status of nominative fair use.Similarly,the European Court of Justice believes that when the use is in good faith,even if there is a certain degree of confusion,it should be allowed.After a long period of judicial practice,the Ninth Circuit of the United States regards nominative fair use as a non-infringing use behavior,which has actually replaced the traditional likelihood of confusion test.The Third Circuit held that nominative fair use is an affirmative defense of infringement.The court only needs to pay attention to whether the act itself is in good faith and is necessary and reasonable.This view is actually similar to some views of the European Court of Justice.Starting from the connotation of the confusion theory and the defendant’s burden of proof,this article believes that the necessary constituent elements of nominative fair use should not include the absence of the possibility of confusion,but it can be used as a consideration.