From Threshold to Criterion: Rethinking Trademark Use in Infringement Determination

With the development of technology, the landscape of trademark infringement has grown increasingly intricate. The criterion of "trademark use" has sparked considerable debate in trademark infringement cases. While some argue that it should serve as a threshold for trademark infringement, others contend otherwise. Under the confusion of standard usage, many businesses rights were infringed, which deeply affects judicial impartiality. This article focuses on the issue of whether "use as a trademark" should be a threshold requirement in trademark infringement determination. Through comparing the legal systems between the UK and China, it is helpful to prejudice the trend on trademark infringements criterion in judicial practice, incorporating relevant cases and experts opinions. This study reveals that a strict threshold requirement may lead to unjust outcomes, particularly in new types of trademark infringement cases. However, using as a trademark can still play a valuable role in the determination of trademark infringement. The paper proposes a balanced approach: "Use as a trademark" should be regarded as a significant criterion, instead of a threshold, for trademark infringement.