Research On The Legal Source Defense System In Trademark Law

In order to enter the WTO successfully,China set the legal source system into trademark law revised in 2001.This system involves the provision that the innocent seller will be exempted from liability for compensation.Therefore,many sellers prefer to invoke this provision in trademark infringement cases.In addition,as the primary infringer is not easy to be found,the trademark owners tend to sue the sellers who are at the end of the infringement chain.It can be seen that this provision is frequently invoked in trademark infringement litigation.However,due to the restrictive provisions of this system and the vague expression of the legislative text,there are many disputes in the judicial application of this system.Thus,this paper will summarize the application disputes of the legal source defense system,and provide judicial application suggestions to promote the system to play its due value through empirical research and theoretical analysis.The first chapter mainly discusses the current condition and problems of legal source system defense in trademark law.The first section mainly introduces the legislative status of this system.First of all,the legal source defense clause is the only clause involving the exemption from compensation for innocent infringement in China’s current trademark legislation.According to the clause,the legal source defense system consists of subjective and objective elements.Only by meeting this two elements,the infringer can be exempted from liability.Secondly,according to the clause,the scope of application of this system is limited to the “good sales infringement”,and there is no space for the other types of trademark infringement to apply.The second section analyses the judicial application problems existing in this system in combination with judicial practice,which is mainly reflected in three aspects:(i)there are disputes over the scope of application of this system.In judicial practice,there are gradually cases of “trademark use infringement” and “goods import infringement” applying this system,and there are also voices for expanding the scope of application of this system in academic circles;(ii)the rule of fault identification is not unified.In judicial practice,there are two different views: “determining the fault depending on the objective element” and “determining the fault depending on the subjective element”.However,adopting different rules is easy to lead to different judgments in common cases;(iii)there is a dispute as to which party should bear the burden of proof of the fact of fault.Due to the unclear boundary of trademark right,it’s hard for judges to make sure the true state of infringes’ minds.If the distributing of the burden of proof of this fact cannot be clarified,the court may fall into a situation where the judgment cannot be made or the judgment deviates from the legislative intent.The second chapter mainly discusses the theoretical basis of legal source defense system in trademark law.It provides reasonable suggestions on judicial application in following chapter by clarifying the legislative origin,legislative intent and relevant theoretical basis of this system.Firstly,this system comes from the provisions of the TRIPS Agreement on the application of the fault imputation doctrine to the liability for damages in intellectual property infringement.In addition,this system also reflects the distinction between the right of intellectual property claim and the right of obligatory claim in China’s legislation.Secondly,this system also reflects the application of the principle of balance of interests.Specifically,once a seller constitutes an infringement,whether he is at fault or not,he must bear the responsibility to stop the infringement,so as to safeguard the interests of the trademark owner.However,if there is no fault,he does not need to bear the liability for compensation,so as to protect the transaction security,promote the development of the market economy and maintain the social public interests.Thirdly,the general rule of fault identification can be analyzed from the theoretical basis of fault identification in civil law.Firstly,the meaning of fault includes “intention” and“negligence”.The state of mind of “intention” is easy to perceive,while the state of mind of “negligence” is difficult to be known to others.In practice,it is often identified by judging whether the actor has fulfilled the duty of reasonable care.Secondly,combined with the above theoretical basis,by analyzing the subjective and objective elements of this system,we can conclude that the subjective element determines the identification of fault,and the objective element is the only one of factors to identify whether the infringer fulfills the duty of reasonable care.Therefore,the identification of fault is mainly based on the subjective element,and the objective element plays an auxiliary role in the identification of subjective element.Fourthly,to discuss the distributing of burden of proof of the fact of fault,we need to know the general distributing rule of burden of proof adopted in China.At present,China adopts the distributing rule of burden of proof based on the “Norm Theory” proposed by Rosenbeck.According to this theory,the distributing of burden of proof of facts depends on the provisions of substantive law.However,due to the influence of immature legislative technique and the pursuit of concise and understandable legislative language,the distributing of burden of proof of fault cannot be solved from the analysis of legislative text.Therefore,it is necessary to consider the distributing of burden of proof of fault from the perspective of legislative value with the help of the“Modified Norm Theory”.The third chapter mainly puts forward some suggestions on the judicial application of the legal source defense system in trademark law.Firstly,we should expand the scope of application of this system to all trademark infringements that meet the structure of this system.On one hand,expanding the scope of application is conducive to safeguarding transaction security.The legal source defense system in trademark law has the legislative intent of protecting transaction security and promoting the development of market economy.However,with the continuous renewal of market transaction mode,the scope of application of this system should not be limited to goods sales infringement.Furthermore,all trademark infringements that conform to the structure of this system can refer to the application of this system,in order to further promote the prosperity and development of China’s market economy.On the other hand,expanding the scope of application is also conducive to promoting the consistency of the doctrine of liability fixation of damages for infringement between the trademark law and civil law,so as to improve and perfect the system of China’s trademark legislation.Secondly,the burden of proof of fault should be borne by the trademark owner.It is easy to identify fault improperly and increase transaction costs when the burden of proof of fault is borne by the infringer,which doesn’t meet the legislative intent of this system.In contrast,it conforms to the legislative intent of Trademark Law and the needs of China’s realistic national conditions when the burden of proof is borne by the trademark owner.Thirdly,this paper will refine the general rules of fault identification by identifying the state of mind of “knowingly” and “with reasonable grounds to know”.And the state of “with reasonable grounds to know” should be confirmed in combination with the duty of reasonable care.In addition,we can also learn from foreign practices.