The Appropriateness of the Trademark Use Requirement in Trademark Infringement

• Main Authors: Tang, Shu-Lan, 湯淑嵐
• Other Authors: Wang, Min-Chiuan
• Format: Others
• Language: zh-TW
• Published: 2010
• Online Access: http://ndltd.ncl.edu.tw/handle/72601546793256301736

碩士 === 國立交通大學 === 科技法律研究所 === 99 === What kind of “use” constitutes trademark infringement? The emergence of the Internet changes the business model and forces the fashion of trademark use away from traditional transaction custom. Along with these new types of trademark uses are more complicated controversies on trademark law. Therefore, the standard to define “trademark use” under trademark law needs to be reexamined. The idea of this thesis originates from the trademark use debate in the United States: whether “trademark use”, i.e. the use of the accused trademark by the defendant as its own trademark, should be a prerequisite of trademark infringement? If the answer of the aforesaid question is yes, how do we measure its appropriateness? In this thesis, the author first introduces in detail the “trademark use” theory and the opposition, and then conducts case study of non-typical trademark use cases, including cases which happened before and after the emergence of the Internet, the latter of which can be categorized into three groups, cases involving meta tags, pop-up advertisements and keyword advertisements. In regard to Taiwan law, through summarizing academic theories and opinions of courts on trademark use and conducting empirical analysis on the rulings of the Intellectual Property Court, the author discovers that the academic definition of trademark use in the United States is also adopted in Taiwan. Furthermore, the author categorizes the common types of trademark use of non-typical cases, analyzes the rulings of those cases in order to know the application of the trademark use requirement among those types, and argues the appropriateness of the trademark use requirement in trademark infringement.