Fair use of trademarks in Chinese law: a daunting defence to trademark infringement

Fair use is a common exception to trademark rights in national laws. Although it is a widely recognized illustrative example of exceptions within Article 17 of the TRIP Agreement, practice in national law often requires supplementary mechanisms that can appropriately balance the interests between two opposing parties. This article reviews the burden of proof for defendants, the methods of applying law by courts and the balancing of interests between trademark owners and third parties regarding fair use in Chinese law. The analysis of these procedural and substantive law issues shows that fair use is by no means an easy defence to invoke. The mechanisms for applying the relevant law need to be improved due to the intrinsic link between the elements for determining trademark infringement and the elements defining fair use. Doctrines on the functions of a trademark could be used to better balance the interest of parties in determining fair use of a trademark.