| Indicative use of trademark refers to the user’s use of others’ registered trademark symbols without the permission of the trademark owner when providing goods or services,which is used to explain the brand information of goods or commodity parts,indicate the use of goods or indicate the use of service objects.Indicative use,as one of the defense reasons for trademark infringement,is not only conducive to maintaining the balance of interests between the trademark owner,other operators and the public,but also helping to maintain a free and competitive market environment,and it fully conforms to the legislative concept of intellectual property of China.At present,China’s trademark legal system has not formally introduced the indicative use system,but there are many trademark infringement disputes in which the indicative use defense is claimed in judicial practice.Due to the blanks at the legislative field and the lack of specific identification rules,the trial court not only disagreed on the qualitative of indicative use in the process of judicial determination,but also adopted vague and confusing identification standards.Based on the principles of trademark law,this paper conducts a theoretical analysis on the controversial issues in theory and practice,characterizes indicative use as non-trademark use,determines the independent relationship between indicative use and traditional confusion likelihood analysis,and makes it clear that “no possibility of confusion” is not a qualifying requirement for indicative use.On the basis of this theory,perfect suggestions for constructing indicative use rules and a unified indicative use identification model are put forward respectively from the legislative and judicial levels. |
