Research On The Construction Of Trademark Nominative Fair Use System In China

Trademarks have the functions of identifying the source of goods or services and providing consumers with quality assurance.Guaranteeing the performance of the core functions of trademarks is the theoretical foundation of trademark rights as well as the legislative origin and logical starting point of the trademark law.However,the exclusivity of trademark rights inevitably hinders free-market competition,especially in the context of the increasingly prosperous commodity economy,in which the trademark has been transformed from a logo attached to a product into an asset,and the boundaries of trademark rights are constantly expanding.The trademark owners always attempt to prevent their trademark from being used by others which leading to a threat to the interests of other subjects in the market.Trademark nominative fair use is the response to this phenomenon which referring to that in commercial activities,especially in the fields of spare parts sales,maintenance or commodity resale,etc.,market operators have to use other people’s trademarks to convey information about the source,use and model of products and services to consumers.Trademark nominative fair use,as an important part of the trademark right restriction system,can balance the interests of trademark owners,competitors and consumers,balance the legal interests between trademark monopoly rights and the protection of commercial freedom of speech,and reduce the transaction cost by reducing the cost of other operators’ transmission of commodity information and the search cost of consumers when shopping.Therefore,this construction of the system not only has theoretical legitimacy but also has practical necessity.Although similar provisions are seen in some administrative normative documents and local court guidelines in China,such documents are of lower rank and the provisions are scattered.In addition,the legal status of trademark nominative fair use has not yet been clarified in the Trademark Law.Therefore,there is a lack of a unified judgment standard for such cases by the Chinese courts,and judges are given too much discretionary space.What is reflected behind the current legislation and judicial status is the vague concept,unclear nature of use and unclear constitutive requirement in trademark nominative fair use in China.Today,the legislation and judicial system of many countries and regions in the world have clarified the trademark nominative fair use system.In the United States and the European Union,the scope of nominative fair use has experienced a developing course from narrow to broad.Although their accreditation criteria for nominative fair use are not exactly the same,both subjective and objective aspects are contained in essence,which is worth our reference and learning.In the future,China should construct a system for trademark nominative fair use suitable for our country based on the national conditions.First of all,the principle of freedom of expression should be establishing in the general provisions of the Trademark Law,and the provisions on trademark nominative fair use should be added in Article 59.Secondly,the subjective and objective identification standards of trademark nominative fair use should be clarified into three aspects: whether the user is subjective goodwill,whether it is clearly beyond the boundary of fair use objectively and whether it may cause confusion among consumers.Finally,a "two-step" approach is proposed to identify the nominative fair use in individual cases,so as to improve the rules for judging nominative fair use in judicial practice.Only when the use is a trademark use will the determination of whether it constitutes a nominative fair use be made based on the criteria for determining such use.At the same time,it points out that nominative fair use,as a passive defense,will not reverse the burden of proof,and then explains the distribution of the burden of proof.