The infringement of trademark rights presupposes the existence of trademark use. If the third party’s use of a certain symbol does not belong to the use of a trademark in the sense of a trademark, there will be no infringement of other people’s trademark rights. Correctly understanding the meaning of trademark use and its constituent elements, as well as the manner in which trademarks are used, are the primary issues that must be resolved in determining trademark infringement. 1. The meaning of trademark use A trademark is a symbol that distinguishes the source of goods. The so-called trademark use refers to using the symbol in commercial activities and playing a role in distinguishing the source of goods. There are two constituent elements: (1) The use of a trademark in commerce is the product of commercial or trading activities. The goods and services used for the trademark are labor products for exchange. It can only be used for the purpose of trading or in commerce (in the course Of trade). ) trademark may constitute trademark use. Use for social welfare, domestic use or purely personal hobby use are not considered commercial use. A question worthy of attention is whether the use of a trademark in a dictionary or encyclopedia constitutes commercial use? Strictly speaking, such use is commercial use in the sense of the entry, not the use of a trademark. However, if a trademark appears in a dictionary or encyclopedia, It increases the possibility that the trademark will be used to refer to goods, and the chance that the trademark will become a common name and be revoked will increase accordingly. Therefore, trademark owners often wish to have the right to control such use. For example, "LINGUAPHONE" is a trademark used by the British Green Wind Academy Co., Ltd. for English speaking training services, and my country's "New English-Chinese Dictionary" includes it as an ordinary English word and interprets it as "LINGUAPHONE", LINGUAPHONE Teaching method (a British teaching method that uses records for oral training)? In 1995, Linguaphone Academy Co., Ltd. applied for registration of the trademark "LINGUAPHONE" in my country's Class 9 "recorded tapes" and other products. The Trademark Office believed that it had become a common name based on the interpretation of the "New English-Chinese Dictionary" and used it as a trademark. lacked significance and was dismissed. The applicant was dissatisfied with the Trademark Office’s rejection decision and filed a rejection review application. Later, the Trademark Review and Adjudication Board held that "LINGUAPHONE" is the applicant's company name, and it is also an original word that is not included in the world's authoritative English dictionary. Moreover, the evidence provided by the applicant shows that the trademark has been approved for registration in dozens of countries. , does not belong to the common name of this product and has the distinctive features that a trademark should have?. ?For such use of other people's trademarks in dictionaries, the British Trademark Law of 1938 clearly stipulates that it does not constitute commercial use. However, the 1994 Trademark Law did not comment on this, and there is no express provision in my country's Trademark Law. This article believes that from the perspective of protecting registered trademarks from being diluted into trade names, the following provisions should be made in accordance with Article 10 of the European Trademark Regulations: Incorporating other people’s trademarks into dictionaries, encyclopedias or similar reference books , the trademark owner has the right to request the editor or publisher to indicate that the term is a registered trademark. (2) The decisive condition for use in the trademark sense to infringe trademark rights is that the symbol is used as a trademark. Although a symbol is used in commercial activities, but the symbol does not function as a trademark, it is considered a use of a symbol, not a use of a trademark. In the case of Xuzhou Handu Industrial Development Co., Ltd. v. TCL Group Co., Ltd., the court of second instance held that the defendant's use of the word "Millennium Dragon" in TV promotional advertisements was using the word as a narrative rather than a trademark. , it is normal use and does not infringe the exclusive rights of the plaintiff’s Millennium Dragon trademark (approved products include televisions). The British Trademark Law of 1938 clearly stipulates that if the plaintiff claims that the defendant infringes trademark rights, it must prove that the defendant's use of the mark is trademark use. However, the provisions of the 1994 Trademark Law are not clear, and there is controversy in the judicial community. ?my country’s Trademark Law does not clearly stipulate this, but according to Article 52 (1), ?Using the same or similar trademark on the same or similar goods without the permission of the trademark registrant ? of a trademark is an infringement of the exclusive right to use a trademark. It can be seen that the infringement of trademark rights must be the use of trademarks, not the use of symbols.

According to Article 50 of the "Regulations for the Implementation of the Trademark Law", any use of a mark that is identical or similar to another's registered trademark as a trade name or product decoration on the same or similar goods to mislead the public is an infringement of the exclusive right to use a trademark. Behavior. In this case, although the "logo" appears in the form of "product name" or "product decoration", it actually functions as a trademark, which may lead to the consequences of misleading the public. Therefore, the use of "logo" in this article is actually the use of trademark. 2. Forms of trademark use Article 3 of my country’s Trademark Law Implementation Regulations stipulates the forms of trademark use in an enumerated manner, which mainly include: (1) Use of trademarks on goods, product packaging or containers. The use of trademarks on goods refers to attaching trademarks to goods, product packaging or containers by direct affixing, engraving, branding or weaving. The so-called packaging refers to the auxiliary materials used on goods to identify goods and facilitate carrying, storage and transportation. Containers are also a type of packaging. For example, if a counterfeiter puts a drink into a bottle and puts a "Coca-Cola" label on it, or weaves a "crocodile graphic" mark on a shirt. Although it is not directly displayed on the goods, it is also used to connect the goods with cards, labels, etc. containing the trademark. ?In cases of trademark infringement, if the trademark only appears incidentally on the defendant's goods, it is not enough to constitute the use of the trademark on the goods. For example, Treborv. happened in the UK. In the Football Association case, the plaintiff, the Football Association, had trademark rights over the "three-lion" logo, and the defendant, the candy manufacturer Trebor, used photos of football players on the packaging of its candies for sale. The Football Association believes that because some football players in the photos are wearing England team uniforms with the "three-lion" logo printed on the team uniforms, it infringes the Football Association's trademark rights. In dismissing the plaintiff's claim, Judge Rattee explained: It is undisputed that Trebor's use of the mark was not a true use of the mark, and its use in the card was certainly not a use of the mark. Judge Rattee also explained: "It is unrealistic to consider that Trebor's affixing the England football team's logo to the card and therefore to the goods constituted use within the meaning of Article 10(4)(a) of the Trade Marks Act." (2) Use of trademarks during displays and exhibitions Although trademarks cannot be physically attached to the goods, if they are connected to the goods in a certain way, it is enough to make the general public think that the trademark plays a role in distinguishing the source of the goods. This constitutes trademark use. For example, a trademark is used when displaying or exhibiting goods; a specific trademark is used to indicate the place or counter where goods are sold, but the goods sold are not genuine products bearing the trademark or the trademark of the goods sold does not match the trademark. The purpose of using this kind of trademark is to use other people's trademarks to promote one's own products, but the trademark is not directly attached to the goods. Some British scholars call this type of use a borrowed mark (useunderthesign), and believe that only when the defendant plays a direct and active role in the process of forming a link between the mark and the goods, it constitutes a borrowed mark. If the connection is accidental or incidental, it is not sufficient to constitute a borrowed mark. For example, the above-mentioned TreborV. The conclusion in the Football Association case was also affected by the fact that the inclusion of the mark on the card was not the result of the defendant's conduct. The markings occurred because the footballers were wearing England jersey when they were photographed and were not a direct result of the defendant's conduct. In this case, it is more accurate to say that the goods are sold with the mark attached, rather than the goods being sold with the mark. (3) Use of a trademark in transaction documents or advertising. The use of a trademark in transaction documents and other commercial documents and advertising constitutes trademark use. The so-called transaction documents include contracts, business letterheads, envelopes, invoices, price lists, etc. The so-called advertising refers to a form that directly or indirectly introduces the goods produced or sold or the services provided through certain media and forms. Advertising media includes newspapers, periodicals, posters and other written materials, as well as radio, television, and the Internet. and other audio-visual materials.

Using other people's trademarks in advertisements to promote one's own products is a trademark infringement, but does using other people's trademarks in comparative advertisements for the purpose of helping consumers identify and choose products constitute an infringement of trademark rights? The so-called comparative advertising refers to the use of one's own products. Advertisements that compare goods or services with other people's goods or services in terms of price, quality, period of use, etc. In advertisements, other people's trademarks are usually used to refer to goods or services. The British Trademark Law of 1938 prohibits comparative advertising. The theoretical basis is that comparative advertising is a "free-riding" behavior that takes advantage of other people's goodwill. However, some people believe that comparative advertising is helpful for consumers to increase their knowledge, make consumption choices and promote fair competition, so comparative advertising should be allowed. This view is reflected in section 10(6) of the UK Trade Marks Act 1994, which is known as the UK home-grown provision. According to the provisions of this article, (trademark owner) shall not prohibit others from using its registered trademark for the purpose of identifying the goods or services of the owner or licensor of the registered trademark. However, such use must comply with honest industrial and commercial practices. If it lacks justifiable reasons and will unfairly exploit or damage the distinctiveness or reputation of the registered trademark, it will still constitute an infringement of trademark rights. However, some people believe that any comparative advertising is difficult to comply with honest industrial and commercial practices, because advertisers inevitably choose some content that is beneficial to themselves for publicity. ?3. Brief analysis of the OWEN trademark dispute case (1) Basic case facts Plaintiff: Han Defendant: Anhui Gubing Saite Shopping Co., Ltd. (hereinafter referred to as Gujing Saite Company) Defendant: Hefei Parkson Xiaoyao Plaza Co., Ltd. Company (hereinafter referred to as Parkson Company) Defendant: Guangzhou Baiyunshan Sportswear Co., Ltd. (hereinafter referred to as Baiyunshan Company) Plaintiff Han was approved to register the trademark "OWEN" in the name of "Hefei Zhongshi Liangni Clothing Studio" , the products are approved to be Category 25 "clothing", etc. The plaintiff discovered that the shopping malls of the defendants Gubinset Company and Parkson Company were selling clothing produced by the defendant Baiyunshan Company with the word "OWEnl0" printed on it. The plaintiff sued the court on the ground that the three defendants had infringed its OWEN trademark rights. It was also found that the clothing produced by Baiyunshan Company is printed with the "Umbro" trademark pattern registered by Umbro Company on the front, and "OWEnl0" is printed on the back. The font is printed, and English and numbers are combined. "10" is used throughout. The proportions in the pattern reach four-fifths. Images of British football player Owen wearing the No. 10 jersey are used in the product's advertising materials. (2) Comment on this case. The focus of this case is whether the defendant Baiyunshan Company's use of the word "OWEN" (symbol) is a trademark use. If it is a trademark use, it constitutes an infringement of the plaintiff's trademark rights; otherwise, it does not constitute an infringement of the plaintiff's trademark rights. 1. In terms of the form of usage behavior. The defendant Baiyunshan Company printed the word "OWEN" on its clothing products, which may be the use of "trademark" on the goods. 2. In terms of the purpose of use. The defendant Baiyunshan Company used the word "OWEN" for the purpose of selling clothing products, which is obviously commercial use. This is undisputed. 3. In terms of the nature of the use behavior. Printing athletes' names and commonly used jersey numbers on clothing, especially sportswear, is an industry practice and is also an important form of commercial promotion of athletes' personal images. Although the clothing of the plaintiff Baiyunshan Company has the word "OWEN", consumers usually associate it with the famous British star Owen. The function of the word "OWEN" is to advertise through Owen's personal image, rather than to identify the source of the product. symbol. The trademark used to identify the source of goods on the clothing of the defendant Baiyunshan Company is "Umbro". As the court of first instance pointed out, the defendant Baiyunshan Company marked the graphic trademark of the well-known crystal brand "Umbro" with permission in a prominent position on its products. When using OWEN, it is used in combination with the number 10 and the number 10 accounts for four-fifths of the entire pattern. At the same time, in the advertising leaflets for its products, the personal image of British football player Owen is used.

Therefore, Baiyunshan Company uses the letter combination "OWEN" in the products it produces, taking advantage of the influence of British football player Owen among consumers, rather than the plaintiff's trademark "OWEN". In short, the defendant Baiyunshan Company’s use of the word “OWEN” does not constitute trademark use. The court of first instance was undoubtedly correct in rejecting the plaintiff's claim. Trademark disputes