Fair use of trademark rights is embodied in the following aspects:
1. Narrative fair use
Fair use is widely applicable 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.
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. Indicative fair use can also be seen from time to time in foreign trademark judicial practice.
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 should not make consumers mistakenly think that the use was initiated by the trademark owner and received its support
3. Explanatory fair use
(1) Basic connotation of explanatory fair use
Explanatory 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.
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.
4. parallel use
as far as parallel use is concerned, it refers to the insignificant and proper use of goods with previous trademarks on their own goods. Arthur miller, an American scholar, thinks that this is also a form of fair use of trademarks. 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 prominently used, 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.