| In judicial practice,from the "Lux" case to the present "Fendi" case,there has been a fundamental change in the court’s decision.The result has changed from illegal parallel importation of trademarks to not illegal parallel importation of trademarks,and the dispute mainly exists in the field of sales and circulation after importation.Allowing parallel importation of trademarks is in line with the development background of the country,and at the same time,the domestic sales and circulation of parallel imported goods should ensure that the goodwill of trademark owners and the interests of consumers will not be damaged.In the sale and circulation of parallel imported goods,the source identification function safeguards the interests of consumers,while the quality assurance function carries the goodwill of the trademark owner.If there is a substantial difference in the goods,which leads to confusion and misunderstanding of the relevant public and damages the goodwill of the trademark owner,it shall be deemed as trademark infringement.The key to the unreasonable use of a trademark is whether there is a possibility of confusion among the relevant public,and the judgment of both trademark use and non-trademark use should be based on confusion as a prerequisite.The trademark use in parallel importation is manifested by the third party attaching the trademark of the trademark owner to the resale goods without the permission of the trademark owner or translating the English trademark into Chinese and attaching it to the parallel imported goods without authorization,which will lead to the possibility of confusion of the relevant public and shall be deemed as infringement of trademark right.Non-trademark use mainly refers to the indicative use of the trademark,the purpose of use is mainly to explain the source of the goods sold,if the indicative use of the trademark will lead to the possibility of confusion of the relevant public,should be considered as trademark infringement,if the indicative use of the trademark will not lead to the possibility of confusion of the relevant public,the indicative use of the trademark must also meet the three elements of necessary,reasonable,good faith,if the three elements are satisfied at the same time belong to the trademark If the three elements are satisfied at the same time,it is an indicative use of the trademark and does not constitute trademark infringement.For the unreasonable use of a trademark,if there is at the same time misleading commercial propaganda,misleading people to believe that there is a specific connection with others,which violates the business ethics of honesty and credit and the principle of market competition,it shall be deemed to constitute unfair competition. |
