Studies on the Parodies of Trademarks and Designations
Date Issued
2015
Date
2015
Author(s)
Kang, Fang-Tzu
Abstract
Parody, a creative work imitates the characteristic of a work for comic effect or sarcastic effect and to criticize or ridicule the style or content of a work. The concept of parody first appears in the copyright law, where works were targeted as a parodied object. However, as the consumerism culture prospers and the implication of trademark transmutes, parodists start using trademarks as parodied objects, the concept of trademark parody is therefore born. Trade dress, designations are all become parodied subject in trademark parody cases. In Parodies of trademark, trade dress and designation cases, freedom of expression and infringement and unfair competition are all involved. Protection of consumer, Interest of right holders and freedom of creators faces a see-saw battle in parody cases. Considering the U.S. has abundant legal cases and legal theories regarding the issues, this thesis first introduces and analyzes legal cases and legal theories in the U.S. and then tries to provide thorough critique and law making suggestion This thesis adopts comparative law method and concludes as follows: First, definition of parody should be broad enough to include satire. Second, considering the objectives of the Trademark Act and the Fair Trade Act and also to cater the trend of the Fair Trade Act latest amendment, the Fair Trade Act should provide protection to non-registered well-known trademarks and designations only (with one exception, article 25 of the Fair Trade Act); the registered trademarks should fall in the protection of Trademark Act. Third, the standard of determining whether parodies infringe rights and interest under aforementioned situations in the Trademark Act and the Unfair Trade Act should be exactly the same. Forth, the standard applied should be the one proposed by the dominant standards in the U.S. ruling cases because the standards protects and balance the interests of trademarks/designations and freedom of expression. Least but not last, in the case of applying article 25 of the Fair Trade Act, the judging principle proposed was based on the whether there is extracting of others’ business effort or not, in addressing parodies of registered trademarks, non-registered trademarks and designations. By applying the proposed standard, parodies of aforementioned cases would usually be exempted from the liability of the article 25 of the Fair Trade Act. This thesis aims at proposing the above-mentioned principles and standards, making contributions to the future legal rulings and legislation amendment.
Subjects
Parody
Trademark Parody
Designation
Trade Dress
Freedom of Expression
Free-riding
Type
thesis