Hello, 1. The concept and function of trademark use

The use of trademark is an important concept in the field of trademark law. According to Article 3 of my country’s 2002 Trademark Law Implementation Regulations, the so-called use of trademarks includes using trademarks on goods, product packaging or containers, and commodity transaction documents, or using trademarks for advertising, exhibitions, and other commercial activities. middle. This definition explains the specific circumstances of trademark use in an enumerated manner. my country's newly revised Trademark Law in 2013 (hereinafter referred to as the "New Trademark Law") has made a clearer definition of the connotation of the use of trademarks on the basis of the above. That is, Article 48 of the new "Trademark Law" begins with the use of trademarks. Starting from the basic functions, it is clearly stipulated that the use of trademarks is used to identify the source of goods, further emphasizing the function and significance of trademarks in commercial activities. Therefore, the use of a trademark in the sense of trademark law can be defined as the use of a trademark by the owner or user of the trademark on relevant carriers (such as packaging, containers, transaction documents, advertisements, etc.) for the purpose of identifying the source of goods or services in relevant commercial activities. the use of trademarks.

Use is the basis for trademarks to perform their functions. From the perspective of the basic function of a trademark, the main purpose of using a trademark is to identify the source of a specific product or service, so as to prevent the relevant public from misunderstanding or confusion during the consumption process, which not only protects the commercial interests of producers and operators , and also protect the legitimate rights and interests of consumers. Although there are many ways to distinguish the source of the same or similar goods or services, for example, directly disclosing the producer, operator or provider of the goods or services on the relevant carrier in a written description to indicate that the goods or services are Or the specific source of the service, but as a commercial mark, a trademark is easier to be perceived and contacted by the relevant public, and it is also more conducive to saving transaction costs. As the influence of trademarks continues to expand and their popularity continues to increase, in addition to their identification or distinguishing functions, trademarks can also play the role of advertising and gathering goodwill.

2. General characteristics of trademark use

The use of trademarks in the sense of trademark law has its own specific connotation and also has some characteristics of its own. The general characteristics of trademarks in specific use mainly include:

1. The use of trademarks mainly occurs in related commercial activities. The emergence and use of trademarks are closely related to the rise and prosperity of commercial activities. Generally speaking, the use of a trademark mainly refers to the use of the trademark in related commercial activities (such as the sale of goods, advertising, exhibitions, etc.), because only when used in commercial activities is the trademark most likely to display its value to the public consumers. Only the corresponding relationship with a specific product or service is most likely to give full play to its marking or distinguishing function, advertising and gathering of goodwill; on the contrary, if it is used in non-commercial activities, it is difficult for producers and operators to resort to it. Trademarks convey information related to goods or services to the public and consumers. Under such circumstances, the function of trademarks will naturally be difficult to perform.

2. The use of trademarks generally requires the help of corresponding carriers. Generally speaking, the carriers for the use of trademarks include the goods themselves, the packaging or containers of the goods, transaction documents or advertisements related to the goods, etc. It is worth noting that with the rapid development of Internet technology, the use of trademarks in the online environment is becoming more and more common. Although these changes affect 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 in 2011 in Taiwan, my country, when defining "use of trademarks", clearly stipulates that the carrier of trademark use also includes digital audio and video, electronic media, the Internet or other media. ① Compared with traditional use methods, the use of trademarks in the online environment is more complex, and many new issues deserve continued attention and research.

3. The use of trademarks should be for the purpose of identifying the source of goods or services. Among the various functions of a trademark, the identification or distinguishing function is the basic function of a trademark. Only when a trademark fully exerts its basic functions can other functions of a trademark function better. In practice, if the use of a trademark cannot play the role of distinguishing the source of goods or services, then the use should not be recognized as use of the trademark within the meaning of trademark law.

3. Basic requirements for trademark use

The use of a trademark can only constitute the use of a trademark in the sense of the Trademark Law if it meets the relevant requirements. 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 must not violate the provisions of the Trademark Law and other relevant laws and regulations. Some people point out that "the acquisition of any rights must be based on legal behavior. Illegal behavior cannot obtain legally affirmative consequences. Therefore, even if this use of marks does play a role in distinguishing the source of goods or services, it is insufficient because of its lack of legal consequences." Legality prevents users from claiming prior rights.” ② For example, although there are a large number of unregistered trademarks in the real society, and the use of unregistered trademarks is not prohibited by law under normal circumstances, according to Article 2 of my country’s new Trademark Law. Article 6 stipulates that if a trademark is used on goods that require the use of a registered trademark according to laws and administrative regulations, the trademark must apply for trademark registration, and only after the trademark is approved for registration can the relevant goods be sold in the market.

2. Substantial use. Substantial use requires that the trademark must be associated with a specific product or service and be able to truly distinguish the source of the product or service during use. If the relevant public can see a trademark on relevant carriers for a long time, but cannot access the specific goods or services corresponding to it in the market, the use of the trademark may not meet the requirements for substantive use. In the United States, the federal statute regulating trademark registration and protection is the Lanham Act of 1946. The conditions for a trademark to obtain federal protection are: (1) distinctive; (2) associated with a product actually sold on the market; (3) registered with the U.S. Patent and Trademark Office. ③The condition (2) reflects the requirement for substantial use of the trademark.

3. Use with good intentions. Goodwill in civil law only refers to subjective goodwill. ④ When making a legal evaluation of trademark use, one factor that cannot be ignored is the subjective state of the trademark user, that is, whether the use is in good faith or malicious. In the field of trademark law, trademark users who use trademarks for the purpose of unfair competition or maliciously register others' trademarks that have already been used are prohibited by law. Paragraph 2 of Article 15 of my country’s new Trademark Law prohibits malicious registration of ordinary unregistered trademarks and Article 32 prohibits malicious registration of unregistered trademarks that have a certain impact. Both reflect the law’s negative evaluation of malicious behavior. ; And if someone else has registered a trademark in good faith, and the trademark is the same as or similar to an unregistered trademark that has been used previously and has certain influence, the law does not completely prohibit the good-faith user from continuing to use the trademark. If it complies with the new " According to the relevant requirements stipulated in Article 59, Paragraph 3 of the Trademark Law, a bona fide user shall enjoy the right of prior use of a trademark, and the owner of the exclusive right to a registered trademark shall not have the right to prohibit the bona fide user from continuing to use the trademark within the original scope of use. The use of trademarks should be done in good faith, which is the proper meaning of the principle of good faith. 4. Continuous use. Applying for trademark registration under Chinese law does not presuppose that the trademark has actually been put into use or intended to be used. Therefore, there is no requirement for continuous use of the trademark to be registered. For example, before the trademark registrant applies for trademark registration, a certain trademark has never been used - naturally there is no continuous use. This fact does not constitute an obstacle to the approval of registration of the trademark. However, if a 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 impose certain requirements on the continuous use of the registered trademark. According to Article 49, Paragraph 2, of my country’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 to cancel the registered trademark. Because registered trademarks are not put into use or are not used for a long time without legitimate reasons, it will undoubtedly affect the normal trademark order. The continued existence of this state is also a waste of trademark resources. Professor Wang Qian believes that "the 'use' required to maintain trademark registration should be real, bona fide and of a certain commercial scale. Symbolic use merely to meet the obligation to use cannot meet the requirements of the law." ⑤ It is in this sense that Article 20 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases concerning Authorization and Confirmation of Trademark Rights" stipulates: "There is no actual use of the registered trademark, only transfer or licensing, or only trademark registration. The publication of information or the declaration of exclusive rights to a registered trademark should not be regarded as trademark use. ”

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