Trademark use refers to the act of using a trademark on goods, on the packaging or containers of goods, and on transaction documents, or using a trademark in advertising, exhibitions, and other commercial activities, for the purpose of identifying the source of goods. This definition is set out directly in Article 48 of the Trademark Law and is the cornerstone concept of the entire trademark system.
The Two Elements of the Statutory Definition
Formal element: the trademark must appear on statutory commercial carriers, which fall into three categories:
- The goods themselves, or their packaging or containers;
- Transaction documents for the goods, such as contracts, invoices, delivery orders, and customs declarations;
- Advertising, exhibitions, and other commercial activities.
Substantive element: the use must serve to "identify the source of goods." Printing a trademark on internal documents, using it as a purely decorative design, or reflecting it only within a company name does not constitute use in the sense of the Trademark Law.
Why Trademark Use Matters
- Maintaining the registration: Article 49 of the Trademark Law provides that a trademark unused for three consecutive years may be cancelled — use is the "lifeline" of a registered trademark;
- Defining the scope of protection: a trademark's reputation and distinctiveness accumulate through use and affect the strength of protection in infringement determinations;
- Basis of prior rights: an unregistered trademark with a certain degree of influence is protected under Article 32 — again premised on use;
- Prerequisite for enforcement: when claiming damages, actual use directly affects the amount awarded.
Genuine Use vs. Token Use
Both practice and judicial precedent require use to be "genuine, effective commercial use." Sporadic transactions, contracts and invoices fabricated at the last minute to cope with a non-use cancellation, or minimal use out of all proportion to normal business scale may be found to be token use and rejected. The analysis considers the scale of use, its duration, and the reasonableness of the underlying business logic.
Who May Use
- Use by the trademark registrant itself;
- Use by a licensee (deemed use by the registrant);
- Use by other entities authorized by the registrant.
Use by an unauthorized third party cannot maintain the trademark for the registrant, though it may constitute infringement.
Distinguishing Related Concepts
- Use as a trademark vs. descriptive use: whether a sign is used as a source identifier is the watershed in infringement determination;
- Compliant use vs. unauthorized alteration: the used representation should be substantially identical to the registered one; altering the distinctive character may trigger liability under Article 49;
- Public use vs. internal use: only use facing the market and the unspecified public counts.
The practical judgment behind this concept needs to be combined with individual cases; before acting, you can book a targeted analysis with a registered agency at MyTMBee.