| dc.description.abstract | Nowadays, there are some kuso works which the parodists spread their own humorous jokes or critical comments directly to the society by making fun of the copyrighted works enriching and existing in our multiple cultures. The kuso works are parodies and are regarded as a common and constitutional protected form of expression in a democracy society. The parodists in copyright infringement usually claim that their kuso works are the constitutional protected parodies. Therefore, they may exploit the works of copyright owners and their conducts constitute the fair use of work. The parodists also aim at the trademarks as their mocking targets. However, could the parodists in trademark infringement also claim that their kuso works are “trademark parody”? How do our courts balance the parodists’ the freedom of speech and the trademark owners’ trademark right in trademark infringement?
After Supreme Court of the United States recognizing that the commercial speech is a constitutional protected speech in 1976, there are a lot of academic articles studying the balance between the freedom of speech and trademark right. There are many precedents and the rule of law of trademark parody as well. By contrast, in Taiwan, there are merely few related publications, studies and researches and rare trademark parody precedents. Also, there is no trademark parody provision in Trademark Act. Even there are few trademark parody precedents referring the rule of law of trademark parody of the United States. However, in the circumstance of no uniform trademark parody provision, there might be cause the arbitrary judgments and the infringement of freedom of speech and trademark right.
Therefore, in order to protect the freedom of speech of the public and the trademark owners’ trademark right and sustain the legislative purpose of Trademark Act, this paper suggests that enacting the trademark parody provision in our Trademark Act. However, this paper suggests that Legislative Yuan and the courts both shall not take the copyright parody test in Copyright Act as reference under Trademark Act. Also, if there is still no trademark parody provision in Trademark Act, this paper borrows the trademark parody perspectives of the United States courts to discuss and to establish the trademark parody guidelines of Taiwan. This paper suggests that the courts may take the trademark parody guidelines of Taiwan which is discussed by this paper as reference in trademark infringement. | en_US |