Research On The Judicial Determination Of Trademark Use In Trademark Infringement

With the emergence of various new ways of using trademarks in recent years,trademark infringement cases have shown a trend of complexity and diversification,especially the emergence of new types of cases such as keyword advertising and foreign-related OEM processing,which makes it more difficult to determine trademark infringement.As a core concept in the Trademark Law,trademark use is of great significance in the determination of trademark infringement,which is crucial to protecting the legitimate interests of trademark owners and maintaining normal market transaction order.However,due to the relatively simple nature of traditional trademark infringement cases,the role of trademark use in trademark infringement cases is not obvious,and China’s legislation has not clearly stipulated the criteria for determining trademark infringement,and the unclear recognition standards have greatly increased the uncertainty and difficulty of judicial protection.In practice,the phenomenon of different judgments in the same case often occurs,making it difficult to achieve the purpose of judicial protection of trademark rights.Therefore,defining and clarifying the positioning and identification standards of trademark use in trademark infringement cases is of great significance for determining trademark infringement.The existing academic views and judgments are analyzed and summarized,and the dilemma of judicial application of trademark use in the determination of trademark infringement is summarized into two points:(1)there is a dispute over the status of trademark use in trademark infringement,and most judgments recognize its independent status in the determination of trademark infringement,but lack clear and specific reasoning,and there are cases of cross-use with the possibility of confusion;(2)The criteria for determining the use of trademarks are not clear,there is a lack of detailed and specific guidance and norms,and the phenomenon of different judgments in the same case occurs from time to time,resulting in confusion in judicial application.Recognizing the independent status of trademark use in trademark infringement is the premise of discussing the criteria for determining trademark use,and in order to better explore the second issue,it is necessary to elaborate on the first issue.For the first question,the theoretical circles mainly have three viewpoints:the theory of prerequisites,the theory of independent elements and the theory of negation,and the practical circles mostly adopt the theory of prerequisites.By summarizing and analyzing the above theories and sorting out the relationship between the possibility of confusion,it is believed that the focus of trademark use and the possibility of confusion are different,and the recognition standards are independent of each other.Therefore,trademark use has an independent status in the determination of trademark infringement.For the first question,the theoretical circles mainly have three viewpoints:the theory of prerequisites,the theory of independent elements and the theory of negation,and the practical circles mostly adopt the theory of prerequisites.By summarizing and analyzing the above theories and sorting out the relationship between the possibility of confusion,it is believed that the focus of trademark use and the possibility of confusion are different,and the recognition standards are independent of each other.Therefore,trademark use has an independent status in the determination of trademark infringement.For the second question,there are mainly two views in the theoretical circles:consumer identification standards and actor subject standards.Consumer identification standards are the mainstream views in practice,but they are difficult to define the scope of consumers,difficult to investigate consumer perception,and large costs to obtain consumer perception effects,which are difficult to put into practice.Therefore,the criteria for determining trademark use advocate the adoption of the actor standard and demonstrate its rationality from three aspects:the position of legalism,the establishment of the independent status of trademark use,and the solution of confusion in judicial practice.Finally,the specific considerations for the actor’s subject standard are given,mainly including three aspects:(1)whether the actor objectively uses the trademark for commercial activities,including the two aspects that the trademark use occurs in the commercial process and is closely related to the defendant’s goods or services;(2)Whether the actor subjectively has the intention to indicate the source of goods or services can be demonstrated through three aspects:whether the actor has a distinctive use of the trademark in question,whether the use of the trademark has a commercial purpose,and whether the use of the trademark is to indicate the source;(3)Comprehensively investigate the use of trademarks based on factors such as distinctiveness,popularity and originality.As the core concept in the Trademark Law,clarifying the criteria for determining trademark use will not only help the judicial authorities accurately determine trademark infringement cases,but also help the perpetrator predict in advance whether his trademark use is illegal and promote the benign development of market competition.