A Study On Judgment Standards For Infringement Of Trademark Parody

Trademark parody derivates from parody in copyright.A great characteristic of parody is its imitation of the original works in terms of styles,contents or techniques of expression.Therefore,plenty of information conveyed in the original works are inevitably maintained.However,such imitation meanwhile demonstrates the unique creativity of imitators which allows the audience to know it's a kind of humorous irony or review of the original works rather than adapting the works only.The development of social culture reduces parody to trademarks in addition to works.A successful trademark parody needs to contain the following two features: it should appear seemingly to be the original trademark but it should let the audience comprehend it's not the original one with a view to achieving review and irony of the original trademark.Currently,trademarks have gradually turned into a kind of label which is of economic value,i.e.business reputation and cultural value rather than a simple mark.It can even become a kind of “cultural idol” and a medium that delivers values.The exclusiveness of the trademark right is demonstrated in prevention of behaviors involving use of the trademark to cause confusion for the public on the market.For some trademarks with prominence and reputation among the public such as famous trademark,their protection is conducted not only to prevent confusion but also to protect the higher business reputation and awareness behind them so as not to lead to trademark dilution due to improper uses.Similarities produced by trademark parody with the original trademarks are likely to make consumers misunderstand to apply their imaginations,thus falling into the scope of the trademark use prohibition right or trademark dilution.Yet,at the same time,parody,as a kind of cultural development product,is one of ways of ideological expression and protected by the constitution given freedom of speech.The private right of trademark proprietor over the trademark and the interest of the public to express free opinions such as trademark parody constitute a conflict,which makes trademark parody infringement judgment have great importance.In recent years,disputes arising from trademark imitation have happened in the trademark field in China.Imitators avoid infringement through counterplea for trademark parody.However,due to the legislation blank and immature theoretical studies,the judicial practice falls short of legislation and theoretical basis,which makes it difficult to select standards for judging whether trademark parody is infringement or not.Chapter 1 mainly illustrates the meaning of trademark parody,its characteristics and the status quo of relevant trademark parody legislations.The first section introduces the origin of trademark parody in copyright,then explains similarities and differences between trademark parody and copyright parody,and briefly analyzes standards for judgment of copyright parody infringement;afterwards,it analyzes the meanings and characteristics of trademark parody,clarify basic concepts of trademark parody and further interprets its basic meanings through presentation of characteristics of trademark parody;it goes on to categorize and elaborate the forms of trademark parody use with examples.In the second section,it interprets and expounds legislations about trademark parody in both U.S.and China,and analyzes the process of protection for trademark parody in American Lanham Act.Chapter 2 argues the necessity of setting up standards for trademark parody infringement judgment which mainly comprises of theoretical necessity and realistic necessity.The first section principally presents the conflicts between trademark parody behaviors and trademark functions,explores influences of trademark parody over the right of the trademark proprietors,and sets forth the reasonability of consistence between effective parody and trademark right limitations.Then it analyzes why trademark parody falls into the scope of public interest of freedom of speech,and remarks that standards for trademark parody infringement judgment are required by definition of freedom of speech and infringement.The second section introduces the realistic necessity.First of all,it simply narrates and reviews the “Big Shot's Funeral” and “Michelin” disputes involving trademark parody in China's practice,and concludes that trademark disputes related with trademark parody already exist in China's judicial practice but the analysis in the court judgment is quite rough.Second,there's no judgment standard in China for reference.Even in America where there are more accused infringers conducting counterpleas,there are still no certain standards for the status quo of trademark parody infringement judgment.Chapter 3 studies American standards for trademark parody infringement judgment.The first section mainly explores the identification of trademark parody,i.e.awareness of imitation objects and review of ironic objects as original trademarks.The second section probes into standards of trademark parody in elements of trademark infringement judgment,combines elements that are “confusing” with traditional trademark infringement judgment standards and sorts out standards adopted by courts in American trademark parody cases.The third section is about judgment of unfair competition constituted by American trademark parodies.In the American trademark law system,trademark dilution belongs to the unfair competition scope in America.As to the problem of whether trademark parody belongs to trademark dilution or not,it firstly studies the forms of trademark parody use and discusses three standards of “irreplaceable expression”,“non-commercial use” and “reasonable use” formulated in American trademark parody cases.Subsequently,it incorporates American legislations about trademark dilution and summary of judgment elements and analyzes trademark parody may defame trademarks and weaken trademarks.Chapter 4 proposes suggestions on the system of standards for China's trademark parody infringement judgment.In the first section,it analyzes the feasibility of introducing the trademark parody counterplea system to China,i.e.parody behaviors have been universally recognized by Chinese people and judicial explanation has guided the judgment of trademark infringement and trademark dilution to some extent.At the same time,trademark proprietors realize the impact of trademark parody on trademarks,and the trademark parody disputes which draw extensive attention are caused.Through the “Michelin” case,China's courts have started analyzing and judging trademark parody behaviors in their verdicts.The second section chiefly analyzes the introduction of trademark parody into China's legislations.According to different use forms,trademark parody which is used as a trademark,trademark parody which may be regarded as an identification and trademark parody which is not deemed as an identification yet may produce unfair competition behaviors are respectively included in China's trademark law and anti-unfair competition law.The limitations for China's trademark right should be systematically set and the dilution concept should be imported to provide a systematic legislation guarantee for trademark parody.The third section,based on previous analysis,clarifies thoughts on judgment for China's trademark parody infringement and further puts up suggestions on judgment standards setting from aspects of trademark infringement and trademark dilution.For instance,trademark parody must be targeted at review and irony of original trademarks.The higher the reputation of the original trademark,the greater the parody success rate.In the era of internet economy,the extension of trademark use has been expanded as well so the parody identification which is considered as a commercial trademark may not violate against the trademark right.In terms of the confusion judgment of parody,it should focus on whether differences can be perceived or not.When the same or similar products are defined,the similarity should be divided in a more refined way.Moreover,derivative markets should be taken into account as well in addition to primitive markets.Due to coverage of review and irony,trademark parody will inevitably influence the appearance of original trademarks.However,it should not be treated as the basis for weakening or defaming.Instead,it should center on the analysis of whether imitators have the intention of getting a free ride or not and whether it leads to actual connections by consumers or not,and moreover,whether it causes practical damages to the trademark proprietor or not if it's considered as defaming.