Research On The System Of Descriptive Fair Use For Trademarks

The trademark fair use originated from British and American case law,and then gradually embodied in international conventions and trademark laws of various countries as one of the core contents of trademark right restriction.As one of the main types of trademark fair use,the legislative purpose of descriptive fair use for trademarks is to prevent the trademark owner from abusing his rights and infringing on the freedom of expression of the public.Although the Chinese Trademark Law has corresponding provisions on the descriptive fair use for trademarks,the contents are too broad and the operability is not strong,and there is no clear definition of its specific application premise,constituent elements and judgment standards,which leads to the system has different application scales in the process of judicial trial and administrative law enforcement.Therefore,it is urgent to strengthen the research on this issue.This dissertation starts with the concept and classification of the system of descriptive fair use for trademarks,expounds the rationality and necessity of the existence of the reasonable use system,analyzes and summarizes the problems existing in legislation and judicial practice based on judicial cases,and tries to put forward suggestions for modification and improvement from three aspects of legislation,judiciary and administrative protection.This dissertation consists of three parts: introduction,text and conclusion.The text is divided into the following three chapters:The first chapter is an introduction to the system of descriptive fair use for trademarks.First of all,from the perspective of trademark distinctiveness,what is descriptive trademark is discussed,and further extends to the definition of descriptive fair use.Based on this,summarizes the scope of application and classification of descriptive fair use.Secondly,expounds the justification basis of descriptive fair use for trademarks,and demonstrates the rationality and necessity of the system.At last,the present legislation status of descriptive fair use for trademarks is discussed,and through combing the legislative process of descriptive fair use for trademarks in China,the problems existing in the current provisions are analyzed.The second chapter discusses the judicial application of the descriptive fair use for trademarks.First of all,the sample cases selected are analyzed and explained,and specific issues arising from the current judicial practice are summarized.Secondly,summarizes and analyzes the elements of judicial judgment extracted from the current judicial practice,especially the relationship between descriptive fair use,trademark use and possibility of confusion.Thirdly,the typical cases involving trademark descriptive use in recent years are analyzed,to sum up the latest judicial attitude towards the descriptive fair use for trademarks in our judicial practice.Finally,probes into the existing problems of the current judicial practice in China and analyzes the source of the problems.Chapter three puts forward some suggestions to improve the system of descriptive fair use for trademarks from the aspects of legislation,judicial and administrative protection,in order to make the system more feasible in judicial practice and administrative law enforcement.This Chapter proposes to systematize the fair use system of trademarks through legislation,the content of indicative fair use should be included in the Trademark Law,and the scope of application of descriptive fair use of trademarks should be expanded.In view of the inconsistency in judicial practice,it is suggested that the criteria for determining the descriptive fair use for trademarks should be unified and the legal boundaries of the exclusive right and the right to prohibit the use of registered trademarks should be clarified.This chapter also advocates improving the system of trademark fair use from the aspect of administrative protection,to interrupt the road of malicious registration of trademarks of public resources at the root,and crack down on the current frequent malicious rights protection events.