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

With the increase in the types and number of trademarks,trademark infringement cases have gradually increased,and unlike the previous simple attachment infringement methods,the development of the Internet industry has increased the concealment and complexity of trademark infringement.Article 57 of the Trademark Law of the People’s Republic of China provides enumerated institutional arrangements for the types and forms of trademark infringement,and the 2023 Draft Amendment to the Trademark Law of the People’s Republic of China(Draft for Comments)adds trademark infringement in the field of e-commerce,which is not enough to solve difficult cases in judicial practice,and different judgments in the same case are widespread.The reason for this is that there is controversy in China’s practical circles over whether to take trademark use as a prerequisite for determining trademark infringement and the criteria for determining trademark use.On the status of trademark use in trademark infringement.Due to the judicial dilemma caused by unclear legislative provisions,it is argued that trademark use has a pre-emptive position in the determination of trademark infringement from the perspectives of legislative intent,trademark use and trademark infringement,trademark use and confusion possibility.First of all,from the perspective of legal provisions,trademark use is applicable to the field of trademark infringement.The Understanding and Application of Judgment Standards for Trademark Infringement directly recognizes the use of trademarks as a prerequisite for trademark infringement.Secondly,from the perspective of the relationship between the two,the essence of trademark infringement lies in destroying the link,which is established between the trademark and the goods by the trademark owner through trademark use.At the same time,trademark use and the possibility of confusion are completely different concepts,and trademark use has its own judgment criteria and has a status independent of the possibility of confusion.In addition,the Trademark Law clearly stipulates the criteria for determining the use of trademarks.That is,commerciality and identification.However,these basic provisions can no longer solve the legal problems in reality,and with the advent of the Internet era,trademark infringement cases have become more and more complex,and judicial practice has put forward new requirements for the determination of trademark use.First of all,the connotation of trademark use should be clarified,trademark use is not limited to use in commercial activities,compared with the stage of trademark acquisition and maintenance,trademark use in the stage of trademark infringement needs to be interpreted broadly.The2023 Draft Amendment to the Trademark Law of the People’s Republic of China(Draft for Comments)clearly stipulates that acts carried out by information networks such as the Internet are also trademark uses,which is a response to new trademark infringement cases.Secondly,the fair use of a trademark can also be used as a defense of trademark use in judicial practice.At the same time,the use of trademarks is comprehensively considered from the aspects of the subjective intention of the actor and the consumer’s cognition.In addition,by comprehensively judging the use of trademarks through influencing factors such as whether the use is prominent,how the trademark is used,and the distinctiveness and popularity of the trademark,some difficult cases can be effectively resolved.