In judicial practice, after some sellers purchase goods, they remove the original trademarks of the goods and then sell them. This behavior can be called "subtractive use" of other people's trademarks. It may be used under different circumstances. It constitutes ordinary trademark infringement or reverse counterfeiting of other people's trademarks; correspondingly, some sellers, after purchasing other people's goods, repackage and repackage the goods and affix other people's trademarks or use other people's trademarks in related marketing activities. Trademark, this behavior can be called "additional use" of another person's trademark.

Different from "reverse use" and other "subtractive use" behaviors, the subjective purpose of the "additive use" actor is not to distort or fabricate the source of the goods, but to remind and strengthen the trademark to indicate the source of the goods. The effect; objectively, consumers have not been confused about the source of the goods, and preventing consumer confusion is the core of trademark protection. That being the case, why can’t trademark owners tolerate “additional use” of their trademarks? An important reason is that the formation of a high-quality brand requires years or even decades of hard work and accumulation of goodwill by trademark owners. Trademarks mean monopolistic business interests and competitive advantages to the rights holders, even for business partners. Exception, because using the manufacturer's trademark without permission may share, ride on, or dilute the goodwill and competitive advantages condensed on the brand. It is based on this concern that many well-known brands emphasize the dealer's presence when formulating distribution policies. Use of its trademarks outside the scope of authorization requires special authorization.

However, it must be pointed out that Article 1 of my country’s Trademark Law clearly states that in addition to the interests of trademark owners, the interests of consumers and operators are also important legal interests that need legal protection. Trademark right is essentially an exclusive monopoly right. However, any right has boundaries, and unrestricted interpretation of the definition of rights will inevitably lead to the expansion and abuse of rights. The trademark owner has the right to decide whether to use the trademark, in what form and to what extent, but this must be done without damaging the normal market order, without damaging the consumer's right to know, and without unreasonably causing inconvenience to commodity operators. On top of that. The core of protecting trademark rights is to prevent confusion. Therefore, on the premise that it does not cause consumers to confuse or distort the source of the goods, in order to satisfy consumers’ right to know and protect the normal business activities of product sellers, bona fide additions to other people’s trademarks should be made. Use, included in the scope of fair use of trademarks.

The so-called fair use of trademarks means that under certain conditions, non-trademark owners can use other people's trademarks without infringement. Based on the legislative purpose of intellectual property, it is not difficult to see that the balance of interests between right holders and the public is always the legal effect that intellectual property law attempts to achieve. In order to achieve this goal, rights restriction has become an indispensable and important means. As a result, the fair use system, which originated in the field of copyright law, began to enter the field of trademark law and gradually formed a mature theoretical system. Today, the discussion on the nature of additive use of other people’s trademarks in good faith is a necessary consideration in the context of rights expansion and legitimate restrictions. According to the common types in practice, additive use can be divided into three types:

First, the necessary and reasonable use of the goods sold by the dealer in commercial activities. For example, in the case of trademark infringement and unfair competition dispute between Wuliangye Company and Tianyuan Tonghai Company, the Supreme People's Court pointed out that Tianyuan Tonghai Company is the Shandong operator of the "Splendid Future" series of wines produced by Wuliangye Company. Although the Wuliangye words, graphics and pinyin trademarks are used in business activities without the permission of Wuliangye Company, the intention of using the above trademarks is to indicate that the "Splendid Future" series of wines are produced by Wuliangye Company and that they are the trademarks of Wuliangye Company's "Splendid Future" series of wines. Shandong operator, and the word Wuliangye is both the trademark and the trade name of Wuliangye Company. The "Splendid Future" series of wines themselves are marked with the graphic trademark of Wuliangye. At the same time, Tianyuan Tonghai Company used the trademark involved in its business activities to better promote and sell the "Splendid Future" series of wines, and there was no subjective malice. This use did not destroy the main function of the trademark to identify the source of the goods. Infringement of Wuliangye Company’s exclusive rights to the trademark involved.

Second, retailers use other people’s trademarks after repackaging or modifying large-packaged goods to remind consumers of the source of the goods.

For some large-packaged goods that cannot have trademarks attached to them, such as cement, sugar, and rice, retailers cannot use the original trademarks attached to the large packages after packaging, so they can only label them themselves. The retailer's motive for changing the source of goods is also to remind consumers in good faith. Therefore, this behavior should not be considered as processing or manufacturing of the nature of the goods, and the corresponding behavior should naturally not be evaluated as use without the permission of the trademark owner.

Third, after the assembly manufacturer uses other people’s products as internal parts, it should reasonably mark the internal parts trademark on the outside of the product. For example, if a "Feiyu" computer is marked with the words "INTEL INSIDE" on the host computer, it is a reasonable and suggestive use of the "INTEL" trademark and does not constitute infringement. It is worth noting that in this case, if the accessory trademark is too prominent to cause confusion, such as placing it in a prominent position, or even enlarging the font, adding bright colors, performing artistic processing, etc. in order to attract attention, such as deliberately highlighting it on the Lenovo computer host "INTEL" characters, intentionally reducing "INSIDE" or even not labeling it, and placing its own trademark "Feiyu Brand" in an inconspicuous place such as a corner, it is no longer fair use, because at this time the assembler has shown obvious Intention of unfair competition.

Based on the above discussion, we can roughly summarize the factors for judging the non-infringing additive use of other people’s trademarks: the use of other people’s trademarks is in good faith and does not improperly utilize other people’s goodwill resources and disrupt the order of market competition. ; Not misleading consumers about the source of the product; In order to satisfy consumers' right to know and the needs of reasonable commercial activities.

——Beijing May Day International Intellectual Property Answers