On The Application Of "Trademarked Use" In Trademark Infringement Litigation

There are many controversies in the application of "trademark use" in border cases and other difficult cases in China.In judicial practice,there are different understandings of the concept of "trademark use",unclear positioning of "trademark use" in the determination of trademark infringement,and different standards for the determination of "trademark use".The main problems include the inconsistent understanding of the concept of "trademark use",the unclear positioning of "trademark use" in the determination of trademark infringement,and the different criteria for determining "trademark use".As the concept of "trademark use" is too broadly defined in the legislation,the terminology of "trademark use" is neither standardized nor differentiated in terms of "trademark use".In judicial practice,"trademark use" and "likelihood of confusion" are repeatedly examined in terms of consumer perception and non-trademark use.In judicial practice,"trademark use" and "likelihood of confusion" are duplicated in the examination of consumer perception and non-trademark use is absorbed by the defense of trademark infringement.The loss of the independent status of "trademark use" has led to its unclear positioning in the determination of trademark infringement;and since it is not clear whether the subject of consideration of "trademark use" is the consumer or the user of the trademark,it is impossible to unify the standard of "trademark use".The U.S.and the EU have adopted the "trademarked use" principle.The application of "trademark use" in trademark infringement lawsuits in the United States and the European Union has demonstrated the necessity of "trademark use" as an independent element in the determination of trademark infringement in China and the fact that "trademark use" should not be considered as a trademark infringement.The practice of applying "trademark use" to trademark infringement litigation in China has been demonstrated.To solve the problem of "trademark use" in China’s trademark infringement litigation,it is necessary to clarify the difference between "trademark use" and other trademark use,and to distinguish "trademark confirmatory use" and "trademark infringement use" in a typology.It is necessary to clarify the distinction between "trademark use" and other trademark use,and to distinguish "trademark infringement use" from "trademark infringement use",and to clarify the concept of "trademark use" in trademark infringement.We will clarify the relationship between "trademark use","likelihood of confusion" and "fair use of trademark",and construct the judgment system of the three elements in the determination of trademark infringement,so as to clarify the role of "trademark use" in the determination of trademark infringement.In order to clarify the relationship between "trademark use","likelihood of confusion" and "fair use",and to establish the judgment system of the three elements in the determination of trademark infringement,so as to clarify the independent status of "trademark use" in the determination of trademark infringement alongside "likelihood of confusion".In order to consolidate the independent status of "trademark use",we advocate the adoption of the double subject standard for the determination of "trademark use",and determine that the constitutive elements of "trademark use" include In order to consolidate the independent status of "trademark use",we advocate the adoption of a dual subjective standard for the determination of "trademark use" and determine that the elements of "trademark use" include the act of using a trademark,the subjective intent of the actor,and the degree of visibility and originality of the trademark itself,and unify the criteria for determining "trademark use".