Research On The Determination Of Descriptive Fair Use Of Registered Trademarks

With the continuous deepening of our intellectual property strategy,more and more trademark owners are aware of their rights.In recent years,more and more cases of trademark infringement are being litigated.However,by studying the judicial precedents and the draft of the fifth revision of the trademark Law in recent years,this paper finds that the restriction of trademark rights is the current "developing" trend.The first paragraph of Article 59 of the Trademark Law,as the legislative provisions of the descriptive use system of trademarks,is often put forward as the defense of infringement in trademark infringement disputes,that is,the defense of the descriptive use of registered trademarks.Compared with foreign countries,China’s regulations on the fair use system of trademarks are still not mature,and the provisions on descriptive fair use are only general provisions.The Revised Draft of the Trademark Law(Draft for Comment)on January 13,2023 further improves the provisions on descriptive use.However,the general provisions are still made in the way of enumeration,while the specific connotation of descriptive use and the constituent elements of descriptive fair use have not been clearly specified by law.The ambiguity of legal provisions leads to the inconsistency of judicial application.In trademark infringement dispute cases involving the descriptive use of registered trademarks,the same case often has inconsistent judgment and different applicable laws in different cases.Therefore,clarifying the connotation of descriptive use and unifying the judgment standard of descriptive use are helpful to unify the adjudication cases in practice.Any discussion of judicial issues can not be separated from the theory of direct analysis of practical problems,before analyzing the identification of different types of descriptive use of registered trademarks,it is necessary to have a deep understanding of its connotation.This paper will start from clarifying the concept of descriptive use and related concepts,and then select the common objects of descriptive use for analysis.Through the analysis of judicial practice,it will clarify the status of confusing elements in the identification of descriptive use,sort out the dilemma of the identification of descriptive use of common names and place names,and put forward corresponding suggestions for the identification dilemma.In order to help the court to identify the descriptive use of trademarks.