1. Narrative fair use
Fair use is widely applied to the descriptive use of trademarks, especially the use of narrative trademarks. Narrative fair use protects the freedom of producers and operators to describe their own products, and in essence gives competitors the right to describe their own products. As American judge Holmes said: "Trademark right is only to prevent others from selling their goods as the goods of the obligee. If the trademark is used only to tell the truth and not to deceive the public, we can't see why it should be banned." Specifically, the use of the common name of a commodity or one's own name, address, place of origin, etc. in good faith for providing basic information of a commodity or service does not constitute infringement of the trademark rights of others.
2. Indicative fair use
Indicative fair use refers to the use of registered trademarks of others in production and business activities in order to objectively explain the characteristics and uses of goods or services.
the conditions for indicative fair use are usually as follows: first, if you don't use a trademark, you can't describe a specific commodity or service; Second, the use of trademarks is reasonable and necessary for the making of specific products or services; Third, the use of the trademark must not make consumers mistakenly think that the use was initiated by the trademark owner and received its support [11].
3. Descriptive fair use
(1) Basic connotation of descriptive fair use
Descriptive fair use is also common in the fair use of trademarks. Sometimes, in order to introduce the quality, function, main raw materials, use and product model of the products produced and operated by producers and operators to the public, it will involve the use of other people's registered trademarks. Explanatory fair use has been reflected in the relevant intellectual property legislation. As stipulated in Article 17 of the Intellectual Property Agreement, "Members may stipulate limited exceptions to trademark rights, such as fair use of descriptive words, as long as such exceptions take into account the legitimate rights of trademark owners and third parties". Article 34 of the Trademark Ordinance in Hong Kong stipulates that trademark registration shall not interfere with anyone's bona fide use of his name or the name of his place of business, nor shall it interfere with anyone's bona fide use of any description of the characteristics of his goods and services.
in practice, some trademarks are composed of common words that directly indicate the raw materials, functions, uses and quality of goods, and some trademarks directly contain place names. According to Article 11 of China's Trademark Law, a trademark that only has the common name, figure and model of the commodity, directly indicates the quality, main raw materials, function, use, weight, quantity and other characteristics of the commodity, and lacks distinctive features shall not be registered as a trademark. However, these marks can be registered as trademarks if they have acquired remarkable characteristics after use and are easy to identify. This means that some trademarks can be registered because of their distinctiveness after having a "second meaning" after use. That is, after long-term use, they have achieved the effect of indicating the source of goods and are recognized by consumers. However, there is still a gap in distinctiveness between these trademarks and those that invent words. When others use these trademarks in the "first meaning" to illustrate their products, they should not be restricted by trademark rights. The reasons are as follows: firstly, others' use in the original meaning is the use of public domain resources, and this public domain resources should not be cut because the registered trademark has obtained the "second meaning". Besides being used in the sense of identifying commodities, public resources themselves should remain in the public domain forever. This is also necessary to ensure that the public can freely use written language and freely express their thoughts and exchange ideas. Second, the use of the mark by others will not cause consumers to be confused about the source of goods.
(2) Typical embodiment of descriptive fair use: fair use of geographical names trademarks
In descriptive fair use, geographical names trademarks are subject to more restrictions. This is mainly because the place name itself is a very important public resource and information, which is less prominent than the general trademark when it is used as a trademark. This makes the trademark owner of a place name should not restrict others from using it in a non-trademark sense when exercising the trademark right, otherwise it will harm the public's interests in using the place name, resulting in an imbalance between the trademark owner and the public.
how to protect the trademark rights of trademark owners and prevent the abuse of trademark rights requires certain restrictions on the exercise of trademark rights, especially for those trademarks whose distinctiveness is not strong enough, the intensity of restrictions should be greater-that is, a wider range of rational use should be allowed. At the same time, the use of geographical names trademarks by competitive manufacturers of trademark owners or the public cannot exceed the scope of fair use. Only in this way can we balance the relationship between the interests of trademark owners and the interests of the public.
4. Parallel use
As far as parallel use is concerned, it refers to the insignificant and proper use of goods with previous trademarks on one's own goods. In real life, it is very common to assemble goods with other people's trademarks. According to the theory of parallel use, when a commodity bearing another person's trademark is regarded as a part of one's own commodity, as long as the trademark is not used prominently, it will be regarded as the trademark of one's own commodity by mistake. This is also necessary to promote the development of commodity trade, especially processing and parts trade, and has been affirmed by trademark legislation in some countries.