Today, with the rapid development of e-commerce platforms, APPs and other online derivatives, and the increasingly fierce competition for operating resources, the traditional single trademark use form can no longer meet the ever-changing development needs of business models. Many operators have The strategic focus has been shifted online, and seizing the trademark high ground has been used as a trump card to gain competitive advantage.

Currently, various online trademark usage behaviors are constantly being introduced, not only in the use of trademarks in website product descriptions, but also in APP application names and bidding ranking keyword businesses, which undoubtedly gives rise to We raised a new question: Are these uses legal? In the absence of a registered trademark, under what circumstances does the use of other people's trademarks not constitute trademark infringement?

It is generally believed that trademark use is The basic premise for determining what constitutes trademark infringement. The so-called trademark use means starting from the most essential distinguishing attributes of the trademark to determine whether the use of the trademark can distinguish the source of goods or services. If the trademark can play a role in distinguishing the source, then further determine the similarity of the marks, the same or similar goods, whether the use of the trademark will cause confusion, etc., and if the use of the trademark cannot play a role at all If the function of distinguishing the source of goods is only to describe the characteristics, quality, quantity, origin, etc. of the goods, it does not constitute the use of a trademark. There is no need to judge other constituent elements of trademark infringement and it is directly determined that such use constitutes fair use. . In trademark infringement dispute cases, fair use is an extremely effective defense against trademark infringement. So in practice, how do we judge whether the use of a certain trademark constitutes fair use?

It is generally believed that fair use of a trademark should first be a descriptive use of a goods or service mark. That is, if a trademark itself contains descriptive elements, such as "lavender" or "Ningxia wolfberry", then when others use this trademark, if they only use the trademark to describe a certain feature of the product or explain its origin, it does not constitute a trademark. sense of use.

For example, if you use the word "lavender" on paper towels and label it "lavender fragrance", it is obvious that the user uses "lavender" not to indicate that the trademark of the product is "lavender", but to describe the product. The smell belongs to the scent of lavender, and this use is not a trademark use, but only a descriptive use.

In judicial practice, there are also cases regarding whether using other people’s trademarks online constitutes descriptive use. For example, in the Sina Paike APP trademark infringement case, the plaintiff had registered the trademark "Paike" before Sina launched the "Sina Paike" APP. It was determined that the goods used were of the same type as the Sina Paike APP, but The key to this case is not to determine whether the two logos are identical or similar, or whether the product categories are the same or similar, but to interpret the meaning of the term "Paike" under the current circumstances and whether Sina Company's use of Paike constitutes use within the meaning of a trademark. In this case, the court started from ancient terms such as "menke" and "lobbyist" to interpret the word "paike" with the development of the Internet and the popularization of Internet terms. It believed that the word had a specific meaning under the existing conditions, especially Refers to people who use devices with camera functions to record life content in the form of pictures anytime and anywhere and upload them to online space to communicate and share with others. The plaintiff in this case did not prove that its use of the "Paike" trademark gave it a "second meaning" different from the first meaning mentioned above. As for the Sina Paike APP, its identification to distinguish the service source is "Sina", and "Paike" corresponds to the purpose of the APP. Therefore, Sina's use of the term "Paike" is actually a description of the service content it provides. or explanation, and is not used to indicate the source of the service. Therefore, it is determined that Sina's use of the word "Paike" does not constitute trademark use.

Subjectively speaking, fair use also requires that the user’s intention to use is truly good faith. Although the user intends to describe the characteristics of his goods or services, if there is an obvious intention to free ride, copy the famous brand, or intend to confuse the relevant public with the source of the goods provided by the trademark owner, this does not constitute fair use.

For example, in the case of Dongguan Weishi Company v. Jiuyao Venture Company and Baidu Company for trademark infringement and unfair competition disputes, the plaintiff enjoyed the exclusive right to register a trademark for ?J365 1? and used it for jeans products, and the defendant conducted bidding promotions on the Baidu website using the keyword "365 1 jeans franchise scam". When a user searches with the keyword "365 1 denim franchise scam", the page will automatically jump to the website of the defendant Tamas Clothing. So, is the defendant's use of the plaintiff's trademark a fair use?

The defendant's keywords use the main identifying part of the plaintiff's trademark, and as a user who searches with this keyword, the premise of searching with this keyword must be based on his knowledge of ?365 1? Denim and his desire to learn more about it. Brand franchise status. Therefore, based on the analysis of this keyword alone, this keyword is actually describing the situation related to "365 1 Cowboy Franchise Scam". Before the user clicks the search button, he will not think that the website he will enter is the 365 1 Jeans website. Obviously, the use of this keyword for the plaintiff’s trademark is merely descriptive and does not indicate the source of the goods or services. However, when the user clicks to enter the website, the content of the website is not related to the 365 1 Cowboy franchise, but the website of a competing defendant company. By using this keyword, the defendant is clearly taking advantage of the user's recognition of the plaintiff's trademark. The defendant’s use of the plaintiff’s trademark cannot be said to be fair use.

In another case in which Yantai Power Lion sued Taobao for trademark infringement, although "Power Lion" was the plaintiff's trademark, the defendant used it as a search keyword, but the defendant's use was obviously The purpose is to explain that there are related sales of Power Lion products on its website, and not to make consumers mistakenly believe that Taobao and Power Lion are from the same operator or have some relationship between them. Therefore, subjectively, Taobao's The use does not have the malicious intent of clinging to the plaintiff's popularity or cannibalizing people for enrichment, and does not constitute an infringement of the plaintiff's trademark exclusive rights.

The author believes that the fair use of a trademark not only requires the above two elements, but also requires a certain degree of rationality in the way of use, that is, objectively, the use of the trademark cannot exceed reasonable limits. The reason why legitimacy is taken into consideration is that the most basic function of a trademark is to distinguish. Even if the user does not have any subjective malice, if the objective use of a certain trademark has reached the level of association with the relevant public, it is difficult to avoid If there is no confusion among the relevant public, the use of the trademark does not constitute fair use. Whether it is reasonable can be judged from the specific way of using the trademark, such as whether it is used together with its own trademark, whether the private trademark is used as a mark to distinguish the source of the goods; when using place names, whether the place of origin is clearly marked, rather than the place of origin. Prominently display place names in larger font sizes to cause confusion with other people's place names and trademarks, etc.

Of course, when judging the rationality of Internet trademark usage, the consumption habits of Internet users also need to be considered to a certain extent. For example, in the trademark infringement case between the plaintiff Dong'e E-Jiao Company and the defendant Zimeitang Company, although the defendant used the title "Shandong Dong'e E-Jiao Block Ximei E-Jiao Film" when selling donkey-hide gelatin tablets on the JD.com website, due to the defendant's The product is under the brand name "Ximei" and is indeed produced in Dong'e County, Shandong Province. When the defendant used the introduction with the words "Dong'e E-Jiao", he did not use the exact same font as the trademark "Dong'e E-Jiao" to highlight it. This trademark uses an ordinary font that is no different from other Chinese characters, and there is nothing inappropriate in the way it is used. Not only that, the court also considered that when Internet users purchase goods, they generally click on the product pictures and descriptions to conduct detailed comparisons before deciding to purchase, and will not decide to purchase just because of a certain title introduction, and found that the defendant was guilty of The use of the word "Ejiao?" was legitimate and the plaintiff's claim was dismissed.

It should be said that with the development of network technology and the continuous advancement of the Internet, compared with the traditional offline use, the form of trademark use online has shown new characteristics, which not only provides trademark Users have also brought unprecedented problems and challenges to trademark rights holders.

What needs to be made clear is that in the context of the Internet, trademark rights holders cannot claim rights just by virtue of simple trademark registration. They should also use the trademark so that the trademark can truly play the role of identifying the source of goods or services and avoid trademark resources being used. Improper shelving and waste. As for trademark users, the use of other people's trademarks should also be limited to description, good faith, and reasonable use, so as to prevent quick gains and irreparable losses to themselves.