what is the fair use of trademark rights? Fair use of trademark rights means that people other than the trademark owner use the trademark of the trademark owner in good faith in the form of descriptive use, indicative use, explanatory use or parallel use in production and business activities, without infringing the exclusive right to use the trademark. Fair use of trademarks is increasingly recognized by countries and regions and reflected in relevant legislation. For example, when Japan revised the Trademark Law in 1991, it stipulated the following restrictions:
(1) others use their own portraits, names, titles, nicknames, stage names and pen names in a normal way;
(2) others indicate the common name, place of origin, place of sale, quality, raw materials, performance, use, shape, price, etc. of the commodity or service or similar commodities and services in a normal way;
(3) explanations of goods or services made by others in a normal way, as long as they are used in good faith and justly. Article 23 of the Trademark Law of Taiwan Province in China stipulates that anyone who expresses his name or the name, shape, quality, function, place of origin of his goods or other descriptions about the goods itself by means of good faith and reasonable use is not bound by the effectiveness of others' exclusive right to use trademarks.
in fact, since the 199s, some regional or global international conventions involving trademarks have affirmed the fair use of trademark rights. For example, Article 6 of the Regulation on European Trademarks stipulates that a trademark owner has no right to stop a third party from using his name or address in business, as long as the above-mentioned use conforms to the honest practice in industrial and commercial practice. Item 2, Article 33B of the Lanham Act of the United States stipulates that the use of the personal name of the party concerned, not as a trademark, or the use of nouns or graphics that are descriptive of the product or service of the party concerned or the geographical origin shall be regarded as fair use. The Opinions on Several Issues in Trademark Enforcement issued by the State Administration for Industry and Commerce points out that acts of using one's name or address in good faith, or explaining the nature or attributes of goods or services in good faith, especially the quality, use, geographical origin, type, price and date of goods or services, are not trademark infringement. The above-mentioned provisions of China's "Regulations on the Implementation of Trademark Law" are actually an affirmation of this administrative law enforcement opinion.
criteria for judging fair use of trademarks In the case of trademark infringement, the defendant may invoke Article 49 of the Implementation Regulations of the new Trademark Law to defend fair use. However, in different cases, the forms of words and graphics used by the defendant are various and complicated, and whether it is reasonable to use them depends on specific issues. More importantly, the implementation of the provisions of Article 49 of the Regulations is very principled, and there is a big ambiguity, and the relevant explanations have not yet appeared, so many problems will be encountered in practice.
Legal basis: Article 24 of the Copyright Law of the People's Republic of China may use a work without permission and without payment to the copyright owner under the following circumstances, but the name of the author and the name of the work shall be indicated, which shall not affect the normal use of the work or unreasonably harm the legitimate rights and interests of the copyright owner:
(1) Use what has been published by others for personal study, research or appreciation.
(2) appropriately quoting other people's published works in order to introduce and comment on a work or explain a problem;
(3) In order to report news, it is inevitable to reproduce or quote published works in newspapers, periodicals, radio stations, television stations and other media;
(4) newspapers, periodicals, radio stations, television stations and other media publish or broadcast current articles on political, economic and religious issues that have been published by other newspapers, periodicals, radio stations, television stations and other media, unless the copyright owner declares that publication and broadcasting are not allowed;
(5) newspapers, periodicals, radio stations, television stations and other media publish or broadcast speeches delivered at public meetings, unless the author declares that publication and broadcasting are not allowed;
(6) to translate, adapt, assemble, broadcast or copy a few published works for the use of teaching or scientific research personnel, but not to publish and distribute them;
(7) State organs use published works within a reasonable range for the purpose of performing official duties;
(8) libraries, archives, memorial halls, museums, art galleries, cultural centers, etc. reproduce the works collected by the library for the purpose of displaying or preserving versions;
(9) Performing a published work for free, without charging fees to the public or paying remuneration to the performers, and not for profit;
(1) Copying, painting, photographing and video recording works of art set up or displayed in public places;
(11) to translate the works published by China citizens, legal persons or unincorporated organizations in the national common language into works in minority languages for publication and distribution in China;
(12) Providing published works to people with dyslexia in a barrier-free way that they can perceive;
(13) other circumstances stipulated by laws and administrative regulations. The provisions of the preceding paragraph shall apply to restrictions on copyright-related rights.