The Status And Determination Of “Trademark Use” In Trademark Infringement

"Trademark use" is one of the core categories of the Trademark Law,China’s theoretical research and judicial practice have a shallow and in-depth understanding of the "trademark use" elements in trademark infringement practice,early judicial practice did not consider the "trademark use" requirements,only to judge the possibility of confusion elements can be determined to stop disputes,but with the development of the commercial economy and the Internet,new types of trademark disputes raise in China,such as Original Equipment Manufacture,Internet search keyword advertising,program name disputes,etc.,these cases make the use of disputes in infringement judgments more prominent,not only bring more trouble to judicial trials,Although China National Intellectual Property Administration has issued "Trademark Infringement Judgment Standards" in 2020,which has made preliminary provisions on trademark use issues,the relevant disputes in theoretical research have not been settled,and the clear criteria and procedures for the identification of trademark use have not been further stipulated in practice.In trademark infringement judicial practice,The criteria of trademark use is related to the status of trademark use,and in the face of the ever-expanding boundaries of trademark rights and the idea of determining infringement that deviates from the use of trademarks,if it is allowed to develop,it will be even more impossible to start in the future in the face of endless new types of trademark use.Therefore,further studying the issues related to the trademark use in trademark infringement cases is still important and necessary.The status of trademark use in the infringement cases is relevant to the determination of trademark use.Only by adhering to the independent status of trademark use can the determination of trademark use in trademark infringement judicial practice be clarified.This article is divided into three parts:The first part raises the points of contention over the status and criteria of "trademark use" in the current trademark infringement judicial practice.By combing through the existing literature and opinions found in judicial practice,this article summarizes as follows:(1)The status of trademark use in the current trademark infringement judicial practice.It is embodied in whether it is necessary to be the precondition when determine the infringement,and if so,how to understand the relationship between "trademark use" and " likelihood of confusion " and "fair use".(2)The requirements for considering "trademark use" in the current trademark infringement judicial practice are not uniform,because the definition clause of "use of trademarks" in Article 48 of the Trademark Law synthesizes the abstract needs of various trademark use scenarios in the Trademark Law,and in recent years,it has targeted the definition of "trademark use" in the process of infringement determination,which has led to disputes between the theoretical and practical circles on the elements of "commercial activities" and "identification of sources" in the process of trademark infringement determination,as well as the examination of "relevant public perception".In practice,different adjudication ideas and adjudication views have emerged.The second part mainly argues the independent status of trademark use in the determination of infringement should be upheld.On the one hand,the inclusion of trademark use requirements in the determination of infringement is due to the following reasons: First,except for the reverse counterfeiting in Article 57,Paragraph5 of the Trademark Law,the establishment of other infringement acts is premised on the premise of "trademark use";second,the legislation and judicial practice of mainstream countries outside the region tend to take "trademark use" as an independent element in the determination of infringement;third,only "trademark use" will interfere with the stable correspondence between the trademark owner and the goodwill,and undermine the trademark owner’s dominant interest in the goodwill attached to its trademark.The trademark property theory can explain the relationship between trademark use and trademark infringement.On the other hand,the inclusion of trademark use in infringement judicial practice is substantially and procedurally reasonable,on the following grounds: first,curbing the scope of rights that are inappropriately expanded in trademark rights and returning to the essence of trademark protection;second,improving the efficiency of judicial adjudication;third,clarifying the internal structure of trademark infringement determinations,and the infringement determination is a "funnel" structure,and the path is "trademark use-the possibility of confusion-constitutes infringement-if it constitutes infringement,whether it constitutes fair use".The third part makes suggestions for improving the determination of "trademark use" in the determination of infringement.In terms of the stability of trademark rights and the independent status of trademark use,since the infringement dispute originates from the user’s use behavior,the use of the trademark is an objective act and does not exist because the relevant public does not have a cognition,so the subject of the imitation of the trademark use judgment should be the user rather than the relevant public.On the basis of following the basic connotation of Article 48 of the current Trademark Law,the requirements for commercial activities and the requirements for identifying sources are further refined and improved,and a combination of subjectivity and objectivity is adopted: in considering the requirements for commercial activities,it should be objectively based on the entire commercial circulation process,and the direct relationship between the user’s use of the trademark and the acquisition of economic advantages should be examined subjectively,and the user should be subjectively examined whether the user has the intention to use the right holder’s trademark in commercial activities.In considering the requirements for identifying the source,objectively we should adhere to the more relaxed effect of identifying the possibility of the source,rather than the "actual use" effect,subjectively,whether the user’s behavior has the intention to identify the source of his own product,and the subjective intention can be inferred according to a series of external objective behaviors.