Trademark use is an important concept in the field of trademark law. According to Article 3 of the Regulations for the Implementation of the Trademark Law in 2002, the use of trademarks includes the use of trademarks in commodities, commodity packaging or containers, commodity trading documents, or in commercial activities such as advertisements and exhibitions. This definition explains the specific situation of trademark use by enumerating. On the basis of the above, China's newly revised Trademark Law (hereinafter referred to as the New Trademark Law) on 20 13 clearly defines the connotation of trademark use, that is, Article 48 of the New Trademark Law clearly stipulates that the use of trademarks is an act of identifying the source of goods, which further emphasizes the role and significance of trademarks in commercial activities. Therefore, in the sense of trademark law, the use of trademarks can be defined as the behavior of trademark owners or users using trademarks on related carriers (such as packaging, containers, transaction documents, advertisements, etc.). ) for the purpose of identifying the source of goods or services in related business activities.
Use is the basis of trademark function. Judging from the basic functions of trademarks, the main purpose of trademark use is to identify the source of a specific commodity or service, to prevent the relevant public from misunderstanding or confusion in the consumption process, which not only protects the commercial interests of producers and operators, but also protects the legitimate rights and interests of consumers. Although there are many ways to distinguish the sources of the same or similar goods or services, for example, the producers, operators or providers of goods or services are directly disclosed on the relevant carriers in the form of written descriptions to indicate the specific sources of goods or services, trademarks, as a commercial symbol, are more easily perceived and contacted by the relevant public, which is more conducive to saving transaction costs. With the increasing influence and popularity of trademarks, trademarks can not only play the role of identification or distinction, but also play the role of advertising and cohesion of goodwill.
Second, the general characteristics of trademark use
In the sense of trademark law, the use of trademarks has its specific connotation and some characteristics. The general characteristics of trademarks in specific use mainly include:
The use of the 1. trademark mainly occurs in related business activities. The emergence and use of trademarks are closely related to the rise and prosperity of commercial activities. Generally speaking, the use of trademarks mainly refers to the use of trademarks in related commercial activities (such as commodity sales, advertisements, exhibitions, etc.). ). Because of its use in commercial activities, trademarks are most likely to show the corresponding relationship with a specific commodity or service to public consumers, and most likely to give full play to their functions of marking or distinguishing, advertising and gathering goodwill. On the contrary, if it is used for non-commercial activities, it is difficult for producers and operators to convey information related to goods or services to public consumers by means of trademarks. In this case, the function of the trademark is naturally difficult to play.
Generally speaking, the use of trademarks must depend on the corresponding carrier. Generally speaking, the carrier used by a trademark includes the commodity itself, the packaging or container of the commodity, the transaction documents or advertisements related to the commodity, etc. It is worth noting that with the rapid development of internet technology, the use of trademarks in the network environment is becoming more and more common. Although these changes have affected people's definition and understanding of trademark use, the Internet, as an important carrier of trademark use, should be recognized. Article 5 of the Trademark Law, revised by Taiwan Province Province on 20 1 1, clearly stipulates that the carriers used for trademarks also include digital audio-visual, electronic media, the Internet or other media. ① Compared with the traditional way of use, the use of trademarks under the network environment is more complicated, and many new problems deserve continuous attention and research.
3. The use of trademarks should aim at identifying the source of goods or services. Among the various functions of a trademark, the recognition or distinction function is the basic function of a trademark. Only when trademarks give full play to their basic functions can other functions of trademarks play a better role. In practice, if the use of a trademark cannot distinguish the source of goods or services, it should not be regarded as trademark use in the sense of trademark law.
Third, the basic requirements for the use of trademarks
Only when the use of a trademark meets the relevant requirements can it constitute the use of a trademark in the sense of trademark law. Generally speaking, the use of trademarks should meet the following requirements:
1. Legal use. The so-called legal use means that the use of trademarks shall not violate the provisions of the Trademark Law and other relevant laws and regulations. It has been pointed out that "the acquisition of any right must be based on legal acts, and illegal acts cannot achieve legal positive consequences." Therefore, even if the use of trademarks does play a role in distinguishing the sources of goods or services, users cannot claim prior rights because of its lack of legitimacy. " (2) For example, although there are a large number of unregistered trademarks in the real society, the use of unregistered trademarks is generally not prohibited by law. However, according to Article 6 of China's new Trademark Law, if a trademark is used on goods that are required to use a registered trademark according to laws and administrative regulations, the trademark must apply for trademark registration, and the relevant goods can be sold in the market only after the registration is approved.
2. Substantive use. Substantial use requires that trademarks must be associated with specific goods or services, and can really play a role in distinguishing the sources of goods or services during use. If the relevant public can see a trademark on the relevant carrier for a long time, but can't get in touch with the corresponding specific goods or services in the market, the use of the trademark may not meet the requirements of substantive use. In the United States, the federal regulation of trademark registration and protection is the Langham Act of 1946. The conditions for a trademark to receive federal protection are: (1) distinctiveness; (2) contact with the products actually sold in the market; (3) It has been registered with the Federal Patent and Trademark Office. (3) The condition in item (2) reflects the requirements for substantive use of the trademark.
3. Use in good faith. Goodwill only refers to subjective goodwill in civil law. ④ In the legal evaluation of trademark use, a factor that can't be ignored is the subjective state of trademark users, that is, whether the use is out of goodwill or malice. In the field of trademark law, the law prohibits trademark users from using trademarks for the purpose of unfair competition, or maliciously registering others to use trademarks first. The second paragraph of Article 15 of China's new Trademark Law prohibits malicious cybersquatting of ordinary unregistered trademarks, and Article 32 has certain influence on malicious cybersquatting of unregistered trademarks, all of which reflect the negative evaluation of malicious behavior by the law. However, if someone else has registered a trademark in good faith, and the trademark is the same as or similar to the unregistered trademark used earlier and has certain influence, the law does not completely prohibit the bona fide user from continuing to use the trademark. If the relevant conditions stipulated in the third paragraph of Article 59 of the new Trademark Law are met, the bona fide user shall have the priority to use the trademark, and the exclusive right holder of a registered trademark has no right to prohibit the bona fide user from continuing to use his trademark within the original scope of use. Trademark should be used in good faith, which is the proper meaning of the principle of good faith. 4. continuous use. In China, the application for trademark registration is not based on the premise that the trademark has actually been put into use or is intended to be used, so there is no requirement for the continuous use of the trademark applied for registration. For example, a trademark registrant has never used a trademark before applying for trademark registration-naturally, there is no continuous use-which does not constitute a reason to prevent the trademark from being approved for registration. However, if the trademark has been approved for registration, in order to maintain the effective existence of the exclusive right to use the registered trademark, the law will put forward certain requirements for the continued use of the registered trademark. According to the second paragraph of Article 49 of China's new Trademark Law, if a registered trademark is not used for three consecutive years without justifiable reasons, any unit or individual may apply to the Trademark Office for cancellation of the registered trademark. Because a registered trademark is not put into use or used for a long time without justifiable reasons, it will undoubtedly affect the normal trademark order, and the continuation of this state is also a waste of trademark resources. Professor Wang Qian believes that "the' use' required to maintain trademark registration should be true, well-intentioned and have a certain commercial scale, and the symbolic use just to meet the obligation of use cannot meet the legal requirements." ⑤ It is in this sense that Article 20 of the Supreme People's Court's Opinions on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation stipulates: "If a registered trademark is not actually used, it is only an act of transfer or license, or only the trademark registration information is published or its exclusive right to use a registered trademark is declared, it should not be recognized as trademark use."
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