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According to the conventional view, there must be trademark use by the defendant in order to determinate trademark infringement; and there shall be no trademark use for the purpose of establishing fair use of trademarks. This view, however, is not theoretically founded and is marginalized by judicial practices worldwide. First, trademark use requirement is linked to the concept of "exclusive right to use" a registered mark. The logic runs that where there is no "use as trademark, there should be no infringement upon this exclusive right to use. With the continuous wearing down of the distinction between trademark law and unfair competition law in respect of business designations, however, trademark use as a threshold requirement for infringement upon trademark is untenable. Second, trademark use is connected with confusion on the part of the consuming public. It is argued that where there is no use of designation as a source identifier, there is no possibility of confusion as to sources of plaintiff's and defendant's goods, though there are some merits in this logic. In judging trademark use from the perspective of the consuming public, one should take into account distinctiveness and reputation of the plaintiff's trademark and so on. As a result, the assessment of trademark use overlaps with the assessment of likelihood of confusion. Accordingly, trademark use should not be deemed as a threshold condition for trademark infringement. Third, a descriptive fair use is a limitation upon trademark exclusive rights, also an affirmative defense. The fair use does not require the absence of any confusion. Inquiry about the fair use should involve the fairness of the disputed use, not emphasize on whether it is trademark use or not. Such fairness should be weighed in light of the practices in the trade. Fourth, in the context of anti-dilution for famous marks, it seems logical to suppose that only if the defendant uses a sign as its own trademark and the public uses the designation to identify and distinguish different goods, could the allegedly unique and strong link between the designation and plaintiff's goods be weakened. But this does not mean that it is required to establish in the first place that there is trademark use in order to prove dilution infringement. Instead, allegedly diluting use must be assessed in the context of the normal use of the disputed mark and in relation to the overall commercial impression of consumers. Non-trademark use is a term for "exclusion" with respect to anti-dilution protection. In this sense, the defendant must carry the burden of proof in order to be excused. On the contrary, the plaintiff has no burden to prove that the allegedly diluting use is a trademark use. Therefore, neither trademark use should be considered as a condition precedent to trademark infringement, nor as a threshold requirement for dilution of famous trademarks. In short, "trademark use" is an improper condition imposed to confine trademark protection. [ABSTRACT FROM AUTHOR]