The status and determination of 'trademark use' in trademark infringement

Lv Bingbin

Chapter 10 in Renmin Chinese Law Review, 2023, pp 250-277 from Edward Elgar Publishing

Abstract: It is not only the practical need to solve new trademark disputes, but also a fundamental issue of constructing trademark law principles, to clarify the status of ‘trademark use’. Based on the standpoint of legalism, the ‘use’ in the composition of trademark infringement should be ‘trademark use’, i.e. the use of trademarks in the sense of source indication. ‘Trademark use’ is an independent element in the composition of trademark infringement that is juxtaposed with the likelihood of confusion. Theoretically, ‘trademark use’ corresponds to the optimal degree of trademark-propertization, i.e. to protect property interests resulting from the source distinction function of a trademark. The condition of ‘trademark use’ is conducive to the correct delineation of the protection scope of trademark. Further, the independent status of ‘trademark use’ depends on whether it has an independent criterion. The ‘trademark use’ should be determined from the perspective of the user, rather than consumers. The nature of use should be analyzed by taking into consideration both the objective and subjective elements. The subjective intent of the user can be identified. What is needed in legal construction is to search for an objective method of determining subjective elements. The judgment standard from the perspective of the user is quite adaptable in boundary cases, such as foreign-related Original Equipment Manufacturer (OEM) cases and keyword advertising cases.

Keywords: Asian Studies; Law - Academic (search for similar items in EconPapers)
Date: 2023
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