The judgment Rules of Trademark Fiar Use
The fair use doctrine is very important in the field of intellectual property right. For encouraging the development of commerce and technology, the legislator create the law of intellectual property right, such law permits the inventor to obtain the exclusive right for the intellectual property they invented. As for the trademark as discussed in this thesis, the Trademark Law permits the merchant to obtain the right of exclusive use of their trademark which is composed by word or design for indicating the source of their goods or services, no one could use such trademark without the prior consent of the trademark owner. However, most of the words chosen by the trademark owner as trademark are widely known by people due to those words already have specific meanings before been chosen by the trademark owner. Or because the competitor of trademark owner does has a need to use the trademark for comparing the difference between his goods or services and the trademark owner’s, in order to describe his own goods or services. In such cases, to protect the freedom of speech of the public and the interest of consumers to identify the source of trademark, the existence of fair use should be allowed. However, in what condition a use will be deemed fair, and thus without the need to obtain the prior license from the trademark owner? If a set of clear and definite judgment rules could be issued and accepted by the administrative organizations and the judiciary, it would be beneficial for the user to avoid any possible trademark infringement lawsuits. There are quite huge amount of papers and judgments discussing trademark fair use in U.S., such theory and judgments are very worthwhile for our country to reconsider the cases involving fair use. This thesis intends to discuss U.S. laws and judicial decisions, and try to compare them with the legislation and judgments of our country at the present stage, and summarize the judgment rules suitable to our country. Finally, this thesis intends to be the reference material for our administrative organizations and the judiciary for making the possible judgment rules of fair use. The first chapter of this thesis is the preface, the most part of which is the explanation of the motive, the subject and the purpose of research. The way of research is the so-called non-experiment research, in addition to interview with experts for verifying the result of thesis. The second chapter discusses the use of trademark, explaining the present definition of trademark use in both U.S. and Taiwan before starting to discuss trademark fair use. The third chapter is the legislation of trademark fair use in U.S. The forth chapter is the case study of statutory fair use in the U.S., including the types of trademark fair use which had been stipulated in statutory law. Through the study of prior case law, we can understand the application of statutory law in this type of fair use. This chapter also contains types of fair use invented by U.S. circuit court, including the nominative fair use, parody, comparative fair use and comparative fair use on the Internet. I also summarize the judgment rules for this kind of fair use accepted by the court in the last section of this chapter. The fifth chapter is the legislation of trademark fair use in Taiwan, this chapter explains the history of legislation for trademark fair use, for the purpose of discussing the factors for establishing fair use. The sixth chapter is the cases study and types of trademark fair use in Taiwan. Here I try to summarize the judgment rules for the most common type of trademark fair use in Taiwan, classic and nominative fair use, which had been accepted by the courts. The seventh is the judgment rules for trademark fair use after comparing the legislation and cases of both U.S. and Taiwan, this chapter also contains the record of the interview with the officers of TIPO. Through the interview, the judgment rules could be tested for their application in real cases. The eighth chapter is the conclusion.
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