A Study On The Construction Of Nominative Fair Use System Of Trademarks In China

As a carrier of enterprise’s reputation,the economic benefits and brand value brought by trademark have become an important intangible asset of enterprises.With the increasing protection of trademark rights by legislation,the exclusivity of trademark exclusive right makes some words and graphics which should belong to the public resources flow into the monopoly scope,and the public interests are seriously eroded.Therefore,trademark indicative use system is regarded as a channel to balance the conflict of interests.However,the system of indicative use of trademarks has not been clearly stipulated in China’s trademark law system at present,which leads to the lack of unified legal provisions in judicial judgment when dealing with cases involving indicative use.In addition,the theoretical understanding of the system also does not have unified,provide specific and in-depth studies are few and far between.Based on this,this paper summarizes the existing problems in the application of the system on the basis of referring to the current legislative and judicial provisions,sorting out and analyzing the effective judgment documents related to indicative use in China’s practice,and tries to put forward suggestions on the construction of indicative use system of Trademarks in China,in order to provide some reference for judicial practice.This paper is mainly divided into three parts.The first part mainly expounds the connotation and legitimacy of the indicative use of trademarks.On the basis of the origin of the indicative use system,this paper makes an accurate definition of its meaning,and then distinguishes the difference between the descriptive use of trademarks and the indicative use.Then it demonstrates its legitimacy from three aspects: the circulation of business information,promoting fair competition in the market and ensuring the balance of interests,which provides a theoretical basis for the following analysis.The second part,starting from the legislative provisions and the current situation of judicial practice of the indicative use of trademarks in China,first combs China’s laws and regulations on the indicative use and the relevant judicial guidance,and then sorts out 148 court effective judgment documents related to the indicative use system in a typed way,and specifically analyzes the judgment path of Chinese courts in trying such cases,It concludes that there are some problems in the application of China’s trademark indicative use system,such as different expressions of indicative use,unclear definition of the nature of indicative use,different judgment results in similar cases,and different application of "confusion possibility",and analyzes that the main reasons for the problems are the legislative gaps at the national level and the lack of unified recognition standards for judicial application.The third part puts forward some suggestions on the construction of China’s trademark indicative use system: first,unify the expression of "legitimate use" in judicial practice,and make it clear that the nature of indicative use is non trademark use.Secondly,it puts forward that the indicative use system should be incorporated into the trademark law system,and stipulates that the identification criteria for the indicative use of trademarks are "use in good faith","use behavior is necessary" and "objectively use degree is appropriate".Finally,it introduces the applicable orientation of the possibility of confusion,and puts forward that "no possibility of confusion" should not be taken as an independent identification standard,but can be taken as an important consideration for the two identification standards of "use in good faith" and "objectively reasonable and appropriate use".