Study On Trademark Infringement In Comparative Advertising

With the development of China's economy, there is a great growth in advertising. Among the complicated and variable forms of advertisements, comparative advertising takes the favour of the public because of its visual and clear characteristics. But comparative advertising will have some problems such as the use of incorrect methods, the illegal application of others'trade mark, and the result of causing consumers a lot of confusions. As the supervision department, industrial and commercial bureau lacks legal guidance and practical experience in supervision of comparative advertising. This year, the revised draft of Trademark Law of the People's Republic of China confirms that comparative advertising has a legal developing future. This paper analyzes the definite composition of infringement of a trade mark in comparative advertising, then offers some proposals about legal system and administrative supervision in comparative advertising. The text is divided into five parts:Part One: Recognition of the research objectFirstly, starting from the conception of trademark and constitutions of infringement on trademark, this part puts a definition of infringement on trademark. Secondly, it concludes essential feature, lists four types, and then clarifies the legal principle of comparative advertising.Part Two: Analysis of trademark infringement in comparative advertisingThis part summarizes four forms of trademark infringement: use infringement, sale infringement, mark infringement and auxiliary infringement. According two normal methods, it classifies trademark infringement into:1. Direct infringement and indirect infringement;2. Typical trademark infringement, well-known mark infringement and special trademark infringement. Then it reaches the scope of trademark infringement in comparative advertising, and points out the exceptional circumstance.Part Three: Establishment of typical trademark infringement in comparative advertisingThis part begins with confuse theory, confuse subject and effect factors, based on the core criteria judgment of typical trademark infringement, and illustrates their relationship. Secondly, it establishes other determine factors separately: sameness or similarity about trademarks and product, competitive relation between two owners of trademarks, effect of prior trademark and other factors. Part Four: Establishment of well-known mark infringement in comparative advertisingThe paper introduces the standards of well-known mark, distinctiveness of well-known mark, goodwill of well-known mark and publicity of well-known mark. It illustrateds the relationship between the degree of using trademark and distinctiveness, goodwill, publicity, then analyses wasteful competition in well-known mark infringement. Finally,this part discusses dilution theory, analyses blurring, tarnishement, genericide in detail.Part Five: Problems and methods to protect trademark in comparative advertising of industrial and commercial bureauThis part elaborates the situations of how industrial and commercial bureau supervises trademark in comparative advertising nowadays, analyses the difficulty in legislation and enforcement about protecting comparative advertising, puts forward the intensified legal responsibility of illegal comparative advertising, legal standards of comparative advertising, draws anti-dilution clause, increases joint responsibility of media, and also advises boosting administrative power, increasing law enforcement, and building credit business in advertisement.Conclusion: Summarize the whole passage.