A Study on the Trademark Parody
Date Issued
2014
Date
2014
Author(s)
Tsai, Meng-Hui
Abstract
Trademark parody is defined as a form of imitating a trademark in a humorous, satire or critical way, which simultaneously conveying messages that contrary to the original one. Trademark parody is concerned not only with the traditional trademark infringement, but also raise questions of trademark dilution, free-rider and the freedom of speech. The article attempts to speculate the legality of trademark parody and the standards used in its judicial cases from the perspective of comparative law.
With the passage of the Trademark Dilution Revision (TDRA) in the U.S.,2006, parody has been exception as “fair use” based on the protection of freedom of speech. In judicial practice, the U.S. courts evaluate factors in determining whether alleged parody creates a likelihood of confusion or dilution in consideration of the distinct nature of parody. As for European Union and Japan, European Community Trade Mark Regulation (CTMR) and Japan trademark law both have no statutory provision for trademark parody. In judicial practice, there was a case that the German court balanced the interests of the freedom of art of the parodist and property right of the trademark owner, and considered that the former was worthier to be protected than the latter. In Japan, most of the scholars believe that the existing law is well enough for trademark parody cases.
Besides trademark infringement, trademark parody is also concerned with the application for registration. Differing from the U.S. and the European Union, the register office of Taiwan, same as Japan, absolutely review all grounds of refusal whether it is about public interests or not when examining the application for registration. And it focuses on whether alleged parody creates a likelihood of confusion, dilution or is contrary to the public policy or accepted principles of morality.
In comparison with other country’s law and cases, this article reaches the conclusions as follow. First, Taiwan trademark law doesn’t need the parody exception as TDRA’s, while it’s still necessary to take the freedom of speech into consideration in trademark parody cases. Second, it’s inappropriate that the courts of Taiwan often apply the provision for likelihood of confusion or dilution to condemn free-rider while trademark law has no provision for free-rider. Finally, this article tries to provide a set of guidelines for trademark parody cases.
Subjects
詼諧模仿
商標淡化修正法
言論自由
搭便車
嬌蕉包
SDGs
Type
thesis
File(s)![Thumbnail Image]()
Loading...
Name
ntu-103-R98a21082-1.pdf
Size
23.32 KB
Format
Adobe PDF
Checksum
(MD5):c3dd4a4ab733f37991d4b7d8c6edc65e