Rationality Judgment Of Trademark Parody

Affected by postmodern consumerism,trademarks,especially well-known trademarks,became the object of trademark parody,conveying political,literary and artistic and commercial information.When the imitator’s desire to ridicule the trademark threatens the trademark owner’s efforts to maintain the brand image,and the constitutional value of freedom of expression conflicts with the trademark owner’s private rights,the judgment of the trademark parody’s rationality falls into a modern dilemma.How to balance the interests of freedom of expression,trademark owner,trademark parody and consumers has become the key to judging the rationality of trademark parody.The first chapter is an overview of trademark parody and its rationality.First of all,the trademark parody based on parody techniques has three characteristics: paradoxical creative means,humorous functional effects and multi-dimensional parody.By juxtaposing the imitator ’s disrespect to the trademark and the idealized image of the trademark owner,the trademark parody distinguishes itself from the imitated trademark by using the effects of satire,ridicule or humor to achieve a multi-dimensional parody purpose.Secondly,based on the classification of speech,trademark parody can be divided into two types:non-commercial trademark parody and commercial trademark parody based on trademark use.Non-commercial parody,as a political,literary and artistic expression,has a higher level of protection of constitutional value.On the contrary,commercial trademark parody often takes the name of freedom of expression and free rides on well-known trademarks to obtain private commercial benefits.It has become a high-risk place for trademark disputes.Finally,trademark parody as a use of symbols as an intermediary for information transmission has considerable value in expressing freedom.Trademark parody from the perspective of constitutional science,as a means of social comment,is protected by free expression clauses.The second chapter is the dilemma analysis of trademark parody judgment.In this chapter,based on the conflict theory of the basic rights of freedom of expression and the protection of trademark rights,it analyzes the reasons leading to the dilemma in judging the reasonableness of trademark parody: the conflict between trademark parody and the protection of trademark rights,especially the infringement of commercial trademark parody.First,the dilemma of judging the reasonableness of trademark parody lies in the need to protect both non-commercial and commercial trademark parody.Among them,the unification of non-commercial trademark parody and protection of trademark rights can berealized within the theory of trademark right limitation,that is,non-commercial trademark parody that conveys non-commercial information is a fair use,and the trademark owner should support it.Secondly,because the indicative and commentary functions of commercial parody marks are in conflict with the source function and advertising function of the parody trademark,they have the risk of infringement or dilution of the parody trademark,which can easily become a trademark parody dispute.High place.The third chapter is the extraterritorial investigation of the reasonableness judgment of trademark parody.The court has not been able to reconcile the conflicts of interest between trademarks and the freedom of constitutional expression.The thinking and specific standards for judging the reasonableness of trademark parody are inconsistent.There are mainly three types of confusion-interest balance and traditional interest confusion judgment.First,the "confusion-interest balance" judgment path is to make a prior judgment on the interests of trademark owners before considering the constitutional rights of trademark parody free expression.Second,the "balance of interest" method directly measures the constitutional value of freedom of expression and the rights and interests of trademarks,but the expression extension of trademark parody is too extensive and difficult to control,so that it later becomes a direct trademark confusion infringement judgment.Thirdly,balancing trademark rights and freedom of expression in the judgment of trademark confusion and infringement is a unified confusion and infringement judgment,which mainly includes the element separation method and the penetration analysis method.Finally,although the four types of infringement judgment paths are slightly different in form,their internal logic is consistent,and they all insist on the reasonable judgment of trademark parody based on confusion judgment as the core.Chapter 4 is the path and standard for judging the reasonableness of trademark parody.The reasonable judgment of trademark parody is premised on the balance between the free value of trademark parody and the interests of trademark owners.Non-commercial trademark parody must adhere to the principle of prioritization of public expression value,as long as it does not contact with harmful information such as drugs and obscene pornography,and does not cause uglification harm to the parody trademark,it is a reasonable use and protected.For commercial trademark parody,only when it does not cause consumer confusion or does not cause the parody trademark to be diluted,its reasonableness can be recognized.In judging the reasonableness of trademark parody,the "three-step" macro-path simultaneously realized the externalization and internalization of the balance between the trademark owner and the freedom of expression value.First,as long as the non-commercial trademark parody is valid,it can be directly protected inaccordance with the non-commercial terms of use set by the Trademark Law.Commercial trademark parody shall be protected only after confusing or diluting the infringement exclusion judgment.Specific to microscopic confusion infringement exclusion judgments,it insists on the strength of the plaintiff ’s trademark,the similarity of the plaintiff ’s logo,the similarity of the plaintiff ’ s development of goods or services,the intentional confusion of the suspected infringer,the degree of caution and caution of ordinary consumers Under the premise of confusing the six major analysis factors of evidence,parody must be run through the analysis of each element,and the conclusion of infringement or not must be reached.Chapter 5 is about the judgment of the reasonableness of trademark parody in China.On the one hand,China’s trademark legislation does not provide clear protective provisions for trademark parody;on the other hand,China’s judicial practice lacks systematic experience in judging the reasonableness of trademark parody,and there is only one trademark parody lawsuit.Judicial judgments in the Michelin case in China also have problems such as deviation in the judgment path,reduced protection,and reduction in the scope of subjective requirements for infringement exclusion judgments,which fail to effectively balance the conflict between freedom of trademark parody and the interests of trademark owners.Therefore,as far as legislative perfection is concerned,it is necessary to establish trademark rights restriction clauses to provide direct protection for non-commercial trademark parody.As far as judicial perfection is concerned,it is necessary to clarify the macro-paths and micro-judgment criteria for the determination of infringement exclusion of commercial trademark parody.