Study On The Criteria Of Trademark Infringement Judge About Trademark Parody

With the increasing attention and the careful management of the modernproprietors, trademarks, which are just simple logos at first, have been given morevalues and meanings. Trademark parody has been attracting people’s attentionbecause of its humorous or exaggerated form. Based on the theory that trademarksalso have expressivity, trademark parody is regarded as a form of expression extendedfrom the field of copyright. However, since trademark parody is inevitably connectedwith the well-known trademarks owned by others, it is very likely that a person whoconducts trademark parody infringe upon others’ trademark right. In the developedEuropean and American countries, trademark parody cases are not rare, and in recentyears, similar lawsuits have also been filed in China. While in China, no laws orregulations regarding trademark parody have been promulgated and the study oftrademark parody is not systemized, so it’s really difficult to determine whether theinfringement occurs. Starting with the basic concept and main features of trademarkparody, this paper affirms that trademark parody may constitute trademarkinfringement and also discusses two typical cases occurred in the United States andChina from the perspective of comparative law. Finally, this paper clarifies the criteriaof infringement related to the trademark parody. There are four chapters expoundingon this issue.Chapter I starts from the concept of parody and makes a scientific definition oftrademark parody. What’s more, this chapter also points out that the essentialcharacteristic of trademark parody is making imitative and creative changes to thewell-known trademarks, which, as the main object, were altered, thus creating a humorous and provocative effect.Chapter II argues the theoretical basis of trademark infringement in connectionwith trademark parody from the perspective of the likelihood of confusion andtrademark dilution. In the context of the confusion theory, it’s clear that in moderntimes the core of a trademark is to avoid the likelihood of confusion, which is alsoconfirmed by China. However, due to the inevitable partial similarity between theparody logo and the original trademark in some salient features, the confusion islikely to occur. According to the dilution theory, the changes trademark parody madeto the original trademark are likely to blur the only link between the originaltrademark and the goods or services, and may even cause dilution to the originaltrademark by tarnishment.According to the comparison between the cases tried in the United States andChina, Chapter III disentangles the proposals and criteria arising out of the typicalcases as a reference. In addition, this chapter also analyzes the ways of decidingwhether there is a trademark parody infringement in China and summarizes theexisting deficiencies. Among them, the most significant deficiency is that the logic ofthe process of determining is not clear enough, and that the non-infringementconditions are limited to non-commercial use.Under the background of China’s legislation, Chapter IV presents the criteria oftrademark infringement in connection with trademark parody. First of all, there shouldbe a successful trademark parody. On this basis, trademark parody can be divided intothe two categories, non-trademark use and use as a trademark. As in the context ofnon-trademark use, the parody logo won’t be used to mark off the different goods orservices. So it won’t constitute a trademark infringement. While if a parody logo isused as a trademark, it’s necessary to make a judgment separately whether there existsa likelihood of confusion and a trademark dilution.