Fair Use Studies Of Parody Marks

With the advent of the era of information technology and big data,the business models and means of commercial promotion of market entities have been diversified and complicated,and consumers are therefore more dependent on the trademarks of products and services for purchase.The application of trademarks is no longer limited to the identification of goods and services among business entities,but has become a symbol of brand and public image through wide dissemination.With the continuous enrichment of trademark recognition functions,parody trademarks with unique meanings and associated with the original trademark have emerged in the market.A parody trademark is typically derived from the original trademark but is closely related to the original trademark,and conveys the parodist’s purpose of commenting on and satirizing certain social phenomena through parodying others’ trademarks,thus at the same time conveying the public’s thinking and evaluation of social phenomena.However,the comical imitation of others’ trademarks is inevitable to cause the dissatisfaction of the owner of the trademark being imitated.In this case,the conflict between the freedom of commercial expression and the exclusive control of the trademark owner may arise,so the parody and the infringement of intellectual property rights are often just a line of sight.At present,there is no clear legislative regulation on the fair use system of parody trademarks in China.In specific judicial practice,judges usually use the general theory of trademark confusion and trademark dilution to adjudicate parody trademark disputes.Due to the lack of a clear principle for the determination of parody,and the cross-over nesting of the two theories in the specific application of trademark confusion theory and dilution theory,how to determine the parody trademark behavior and exclude the infringement step is yet to be studied.Starting from the meaning and legal characteristics of parody trademarks,this paper explores the theoretical basis of fair use of parody trademarks in the conflict between commercial expression and monopoly rights of trademark owners.Then,we summarize the current principles and methods of determining the infringement of parody trademarks from the typical cases of parody trademarks in China,and analyze the criteria for determining parody trademarks and the judgment of infringement in Taiwan district and foreign countries,especially the methods and paths for determining trademark confusion and trademark dilution so as to provide reference experience for the fair use of parody trademarks.Finally,the following suggestions are proposed to improve the fair use system of parody trademarks in China: First,leave room for the interpretation of fair use in parody trademarks in the basic trademark legislation,and further refine the rules of fair use of parody trademarks through judicial interpretation.Second,optimize the judgment standard of trademark confusion and well-known trademark dilution system,and clarify the relationship between them.Third,improve the specific path to exclude parody trademark infringement on the judicial level.