What is the meaning of fair use of trademark
Fair use of trademark rights refers to the use of trademark rights by persons other than the trademark owner in production and operation The bona fide use of the trademark owner's trademark in the form of narrative use, indicative use, illustrative use or parallel use during activities does not constitute an infringement of the exclusive right to use the trademark. Fair use of trademarks is increasingly recognized by various countries and regions and is reflected in relevant legislation.
For example, Japan stipulated the following restrictions when it revised the Trademark Law in 1991:
(1 ) Others use their portrait, name, title, nickname, stage name, and pen name in a normal way;
(2) Others use a normal way to represent the goods or services or similar The common name, place of origin, place of sale, quality, raw materials, performance, use, shape, price, etc. of goods and services;
(3) Others use the goods in a normal way or descriptions made by the Service, so long as the use in the above circumstances is bona fide and legitimate.
Criteria for judging fair use of trademark rights
When a trademark infringement case occurs, The defendant may invoke Article 49 of the Implementing Regulations of the New Trademark Law to raise the defense of fair use. However, in different cases, the text and graphics used by the defendant are diverse and complex. Whether fair use is established requires detailed analysis of specific issues. More importantly, the provisions of Article 49 of the Implementing Regulations are very principled and there is a large area of ambiguity. The relevant explanations have not yet appeared, so many problems will be encountered in practice.
1. In addition to using words and graphics that are the same as or similar to others' trademarks, whether it also adds other explanatory words to indicate its "explanatory nature" as the judgment standard.
2. The judgment standard shall be whether the words and graphics used by the defendant are used as trademarks, or whether the words or graphics are sufficient to identify and distinguish the source of the goods
3. The judgment standard is whether the significance of the text is deliberately emphasized when using the explanatory text
4. Whether At the same time, it is marked with its own trademark as the judgment standard
5. Use business practices and the opinions of industry associations as the judgment standard
