Abstract

The new Chinese Trademark Law in 2019 set forth several statutory limitation of trademark right, including descriptive fair use. However, it does not provide any defense for the nominative fair use. Absence of the nominative fair use defense against trademark infringement, China courts apply improper standard to determine such nominative use, and it results in frustrating purpose of trademark law and expanding trademark holder right. After many cases had been determined subject to the doctrine of nominative fair use, the United States well established the doctrine of nominative fair use, also there are statue basis of nominative fair use in the United States federal dilution statute. As this article will demonstrate, Chinese Trademark Law should adopt a nominative fair use defense. The main reason for allowing such use is that such use can reduce customer search costs and promote free flow of information in the market which is a goal of trademark law. So far there is not any satisfactory solution. The article proposes adoption of US common law nominative fair use doctrine with China civil law styled.

Highlights

  • Nominative fair use is a defense against to trademark infringement, which is set forth by the United States Ninth Circuit, in some circumstances court allowed person unauthorized use another’s mark in their business to indicate mark owner’s goods (Dunning, 2006)

  • The crucial question previously courts and commentators have been concerned with whether a nominative use could be justified under an existing limitation to trademark, but this article poses a different question: should Chinese Trademark Law have a nominative fair use defense? To be sure, trademark law contains limitation of trademark right to place a range of third party conduct beyond the control of the trademark owner, and former scholars spend much time talking about what those limits should be

  • To ensure the necessary flexibility of the statutory limitation and reasonable balance of the involved interest, this paper proposes nominative use as new types of statutory limitation of trademark right and proposes “Three factor” test learn from the US for whether determining nominative use is fair

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Summary

A Proposal for a Nominative Fair Use Provision in Chinese Trademark Law

How to cite this paper: Ainiwaer, Z. A Proposal for a Nominative Fair Use Provision in Chinese Trademark Law. Chinese Studies, 10, 17-30. Received: December 16, 2020 Accepted: January 29, 2021 Published: February 1, 2021

Introduction
What Is Nominative Fair Use
Nominative Use in US Trademark Law
Overview on Research of Nominative Fair Use in China
Legislative Practice
Judicial Practice
Criticisms of the China Approach
Only Rely on Statutory Rule-Based Limitation—A Makeshift Solution
A China “Nominative Fair Use Provisions”
A Proposed Chinese Nominative Fair Use Provision
Reason for Adopting the Proposal
Conclusion

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