Research On Trademark Nominative Fair Use

Trademark nominative fair use refers to the use of another’s registered trademark by an operator in order to convey the message that the goods offered are of the same quality or that the services are compatible.It is distinguished from the descriptive use of a trademark and the exhaustion of trademark rights,and has a unique value of existence.While trademark descriptive fair use has developed relatively mature through China’s legislation and judicial practice,the trademark nominative fair use still has room for discussion and research.The lack of legal provisions on the trademark nominative fair use in China’s trademark law has led to different understanding of its definition,nature and constitutive elements in the academia,which in turn has led to a lack of clarity in the rules of judicial and law enforcement determination.Therefore,deepening the study of trademark nominative fair use from the legislative,judicial and enforcement perspectives will help prevent trademark owners from monopolizing public symbols,protect freedom of commercial expression,maintain fair competition and safeguard consumers’ rights to know.This essay mainly employs historical analysis,case analysis,comparative research and normative analysis to conduct an in-depth study on the trademark nominative fair use.Firstly,it analyzes and reviews the theoretical controversies involved in the trademark nominative fair use,as well as typical judicial and enforcement cases in practice,and points out that there is a lack of legislation,unclear judicial recognition rules and weak enforcement in China.Secondly,a comparative law study on the indicative use of trademarks is conducted to summarize the advanced experience of foreign countries and gain inspiration.Finally,taking into account the social reality in China,it is pointed out that trademark nominative fair use should be incorporated into trademark legislation,and its nature should fall into the category of legitimate use and non-trademark use;judicially,the two elements of "subjective good faith standard" and "objective necessary and reasonable standard" should be followed in the determination,while the status of likelihood of confusion should be acknowledged and the factors for likelihood of confusion should be refined.In the meantime,we should explore the establishment of a pool of administrative enforcement experts and create a trademark administrative enforcement information network platform,in order to improve the trademark nominative fair use system in a comprehensive manner.