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

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.