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A Study of the Fair Use System for Trademark

Author: XuZiYue
Tutor: ZhangBingSheng
School: Ningbo University
Course: Civil and Commercial Law
Keywords: Trademarks Secondary Meaning Fair Use Legal Improvement and Perfection
CLC: D923.43
Type: Master's thesis
Year: 2010
Downloads: 199
Quote: 1
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Abstract

The concept of fair use in copyright law is well known to intellectual property practitioners. An analogous concept exists in trademark law, where the use of another’s mark is deemed "fair". Every trademark has a tendency to identify the goods sold under them as emanating from a particular source. The ever-expanding scope and strength of trademark rights have caused justifiable fears of a threat to free expression. With the rights of trademark developing widely, fair use of trademark is one of the ways to restrict the rights of trademark and it has become a new trend in the international community. The balance of rights in trademark law seeks to balance the interests among the trademark owners and competitors and consumers.There are two types of fair use of trademark: commercial fair use and non-commercial fair use. The commercial fair use mainly includes descriptive fair use, nominative fair use and comparative advertising as fair use. Descriptive fair use is available only in actions involving descriptive terms and only when the term is used in its descriptive sense rather than its trademark sense. The "fair use" should not be likely to cause confusion. If a given symbol or word is not inherently distinctive it can be registered or protected as a mark only upon proof that it has become distinctive. This acquisition of distinctiveness is referred to as“secondary meaning”. Therefore, it should be allowed when use in its primary meaning, and when the mark is used in its descriptive sense. Nominative fair use involves the descriptive use of the plaintiff’s mark to describe or identify the plaintiff’s goods or services. The product or service in question must be one not readily identifiable without use of the trademark; only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and the use must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder. Competitors to engage in comparative advertising, using the trademarked names of goods or services to draw their comparisons products, as long as they accurately describe them, and distinguish them so as to avoid confusion, and the use must be in good faith.The types of non-commercial fair use focus on the parody. The parody is the way of free speech. Parody always points to famous marks, therefore, we must understand that the boundaries between parody and trademark confusion, dilute .There are five factors which should be considered to judge whether parody is fair use. In addition, news reports and commentaries, and use in dictionary belong to the non-commercial fair use.Fair use system of trademark in China’s legislation has not been established. Although the judicial practice has been involved in, but there are many different views because of the lack of legislative guidance. From the theoretical study, combination of current judicial practice and the relevant provisions of existing, determining mark fair use mainly depends on the use of people’s subjective good faith, use ways and whether causing to the consequences in confusion or likelihood of confusion. Made a concrete analysis is needed for specific trade marks.

A Study of the Fair Use System for Trademark

Abstract

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