Comparative Advertising In The Identification Of Trademark Infringement,

Comparative advertising is a kind of advertisement which is used widely inAmerica and European countries and direct comparative advertising of trademarkinfringement is also more prominent. Along with the development of the knowledgeeconomy and globalization, the international trend of the trademark protection incomparative advertising will have an impact on China's intellectual property system.When there has been a form of advertising, the action of trademark infringement indirect comparative advertising will become a new question surfaced in China'sjudicial practice. So it is particular necessary to do more theoretic study aboutcommercials trademark infringement. The determination of the trademarkinfringement in the comparative advertising is the fundamental issue, because it is anessential link in the judicial practice and plays a key role in the penalty of the entirecase. So it is essential to research and discuss the problem specially and deeply. Thispaper first identifies the limit to the protection of trademark rights in the comparativeadvertising and analyses the nature of the action of the trademark infringement incomparative advertising. On the basis of it, the paper contrasts and reviews the relatedlegislation of common law and civil law. Secondly, this paper determines the actionof trademark infringement in terms of general trademark infringement and specialtrademark infringement against well-known trademark. On one hand, discussion andanalysis constitute element of the action of comparative advertising trademarks,competitive relationship, confusion in general trademark infringement; On the otherhand, well-known trademark, fearless competition and dilution is the determinativeelement in special trademark infringement. Meanwhile the paper identifies legitimatecomparable advertising and rational use as the exceptions for trademark infringement.In the final, on the basis of analyzing the legislative status quo in China, the authorsums up the different legislative models of common law and civil law, advises tochoose the right legislative model according to the reality of China and makesrecommendations to perfect China's legislature.