你的戲謔仿作、我的商標權──借鏡美國析論商標權保護與言論自由之平衡

Your Parody, My Trademark Right: A Critical Review on Balance between Freedom of Speech and Trademark Protection by Referring to American Experiences

Over the last twenty years, as parody increasingly moved to center stage in American culture, courts have become much more receptive to arguments that parody deserves special protection. The First Amendment right to freedom of speech limits the scope of rights in the Lanham Act. Courts have devised various defenses and legal doctrines to ensure that protected speech is exempted from trademark infringement liability. Since the landmark holding in Rogers v. Grimaldi created a balancing test for trademark infringement cases implicating First Amendment rights, there has been significant evolution in this field. However, the Supreme Court’s 9-0 decision in Jack Daniel’s Properties, inc. v. VIP Products LLC is on the trademark holders’side. When a trademark is used to distinguish a product from others, the traditional likelihood of confusion analysis should be applied. The legal approach to balancing trademark rights with freedom of artistic expression has undergone a seismic shift. Is this the reconstruction of the balance between free speech and trademark protection? In considering the constitutional boundaries of the trademark estate, it is helpful to return to first principles: the Lanham Act protects the public from confusion. However, when it comes to the deep purposes of the Lanham Act, informative communication is paramount and confusion isn’t everything. The likelihood of confusion test has been around for many decades, but it remains an inexact standard for determining trademark infringement. A more flexible approach should be taken in trademark parody cases, balancing the interests of trademark owners, parodists, and, most importantly, the public.