The Definition Of Trademark Parody And Infringement

The parody was originally a concept in copyright law, initially as an ancient literary technique of expression was used to criticism or satire of a social phenomenon. It is by means of an already existing works, changed and imitated by its substantive content or the artistic style, and it uses of exaggerated or irony means, so as to ridicule or criticism of the original work, then achieve a sense of humor, ironically effect. But with the social-economic and cultural development, the trademark is no longer just a simple symbol that identifies the source of goods or services, but has become the carrier of goodwill, as well as advertising medium, containing more cultural meaning, and it has become tool of exchange of ideas and viewpoints expressed, so trademark more and more become the object of parody. The foreign trademark parody cases appear more frequently, especially in the United States, and its domestic system of trademark parody is more mature. It is an undeniable fact that our trademark parody phenomenon has been appeared, however, our law does not provide for a system of trademark parody, so it is more difficult to deal in judicial practice. This paper makes a comprehensive elaborated to the concept, characteristics and reasonable basis of a parody, then based on a typical case in practice from the U.S. Department of Justice, analyzed determining trademark Funny imitate that constitute trademark parody system. The basic structure of this paper is as follows:The first part, as the starting point of the movie "biggest names" to re-examine, lead to the trademark parody phenomenon, and put forward that this article will elaborate problems. The second part is overview of trademark parody. This part introduces the basic theory of parody, and make detailed analysis and discussion about trademark parody of the concept and characteristics. The third part is reasonable analysis of protect the trademark parody. This part analyze trademark parody’s rationality from the two angles of the expression freedom and the interests balance. The fourth part, trademark parody and trademark infringement decision. The part takes the United States Louis Vuitton Malletier (referred to as LV) v. HAUTE Diggity Dog Company(referred HDD) case for example, taking the trial thought of the case the Court of Appeal judgment as the main line, then made a brief introduction of trademark infringement or not that involved in the confusion theory and dilution theory, on this basis, the author elaborate and analyses the constituent elements of the trademark parody and the considerations of judgment the trademark parody behavior whether constitute confusion and dilute or not, in order to inspire the China’s parody system’s instruction. The fifth part, the necessity and the proposed of legislation system of China’s trademark parody, mainly expounds the trademark-related parody phenomenon’s real existence in China, and our laws legislation missing in this area, at the same time, suggested that China in the trademark legislation will introduce the concepts and elements of trademark parody, and put forward a number of considerations for reference to make the parody to become trademark infringement defenses criteria.With the continuous expansion of the trademark features, a parody of the trademark field has become the problem that China’s "Trademark law" had to face and solve. Only based on reality and constantly improved our trademark legislation, can we better protect the legitimate interests of the trademark and public, so as to continuously meet the needs of the development of China’s socialist market economy.