| Indicative fair use of a trademark refers to an act in which an operator can use its trademark to describe the information of goods or services without infringing the trademark right within the necessary and limited scope in commercial activities without the consent of the trademark owner.There are two types of indicative fair use of trademarks: the use of another’s trademark to indicate and describe the characteristics of goods or services;The main legal problems in the application of the trademark indicative fair use system in my country’s judicial practice are: the legal nature of the trademark indicative fair use is not clear;The main disagreement among academic circles on the elements of indicative fair use of a trademark is whether there is no possibility of confusion as a constituent element of indicative fair use of a trademark.Indicative fair use of a trademark does not meet the constitutive requirements of trademark use,and its nature should be defined as non-trademark use;constituting non-trademark use is the premise of applying trademark indicative and fair use.There are three elements to constitute a fair indicative use of a trademark: subjective good faith,necessity of the use behavior,and rationality of the use behavior.The absence of the possibility of confusion is not a constituent element of the indicative and fair use of a trademark.The indicative and fair use of a trademark must tolerate the existence of a certain degree of confusion.When there is a conflict between the indicative and fair use of a trademark and the possibility of confusion,the principle of balance of interests should be used to coordinate.The legal path for my country to deal with the practical problems existing in the system of indicative fair use of trademarks is as follows: at the legislative level,the legislative model of generalization and enumeration should be used,and the system of indicative fair use of trademarks should be introduced into the Trademark Law;The defendant’s use of the trademark is judged in stages.The first stage determines whether the defendant’s behavior is a non-trademark use,and the second stage determines whether the defendant’s behavior complies with the constitutive elements of the indicative and fair use of the trademark. |
