The Conflicts And Balance Between Fair Use Of Trademark And Likelihood Of Confusion

Trademark is the product of the development of commodity economy to a certain stage.It is the "reservoir" of commercial reputation.It helps to mellow commercial ethics,regulate market order and promote commercial civilization.The trademark law in our country not only aims to protect the trademark rights of the trademark owners,but also aims to promote the development of socialist market economy.In order to avoid the legitimate expression of other commercial subjects being excessively interfered by trademark owners,the trademark fair use system comes into being.The trademark fair use defense has an important impact on the identification of trademark infringement,and the possibility of confusion is also an important standard for the identification of trademark infringement.In trademark infringement cases of "two identical",the court directly presumes that the litigated act has the possibility of confusion;In trademark "two similar" infringement cases,whether the defendant’s behavior has the possibility of confusion is the key point of the court’s examination.In principle,there is a clear distinction between fair use of trademark and possibility of confusion standard.However,with the increasing public awareness of intellectual property protection,the conflict between the reasonable use of trademarks and the possibility of confusion is increasingly apparent.At present,scholars at home and abroad have a great dispute on the relationship between the fair use of trademarks and the possibility of confusion.One is that the likelihood of confusion means the defendant did not act "reasonably";Another point of view is that whether the trademark fair use defense is valid has no direct relationship with the possibility of confusion.From a deep level,the conflict between the fair use of trademarks and the possibility of confusion is actually the conflict between the freedom of commercial expression and the right of trademarks.In order to better ease the tension between freedom of commercial expression and trademark right,it is necessary to make clear that "whether the litigious act belongs to the fair use of trademark" and "whether the result of the litigious act has the possibility of confusion" are two different issues of one body and two sides,and they should not be crossed,let alone directly take "impossibility of confusion" as one of the constituent elements of the fair use of trademark.In reconciling the conflict between the fair use of trademark and the possibility of confusion,the nature of the act sued should be determined first.Trademark fair use belongs to "commercial" and "non-trademark" use behavior,non-commercial behavior is not regulated by trademark law,non-trademark use does not conform to the premise of confusion infringement.Secondly,it is necessary to consider whether the action is justified.Only the "commercial" and "non-trademark" use behaviors that meet the "legitimacy test standard" belong to the fair use behaviors of trademarks.Finally,the harmfulness,scope and degree of confusion should be investigated according to the evidence provided by the plaintiff.Although the fair use of trademarks without the possibility of confusion does not constitute infringement,the relatively limited confusion should also be tolerated.Recognition of fair use of trademarks and the possibility of confusion to achieve a better balance between personal interests and public interests.