Irish Gaelic Athletic Association (GAA) Most likely because of the fast food chainSupermac'sWas successfully prosecuted for an April Fool's joke posted on social mediaSupermac'sViolated its trademark rights in Ireland.

According to media reports, Supermac'sinFacebookandInstagramThe post on the site contained a digitally altered photographGAAHome Croke Park (Croke Park) Picture of. The picture of the stadium has been changedSupermac' ss brand, enclosed "Supermac's Croke Park" The words of, Hints that the stadium has been rebranded.

GAADidn't see the joke, But toMetaThe company filed a complaint. MetaInitially suspendedSupermac' sThe account of, It was later restored.

This article will analyze how to deal with Irish trademark lawGAAAppeal of.

Identified under Irish trademark lawSupermac' sUseCroke ParkInfringement or not?

"Croke Park" It is a registered trademark of two words in Europe.

To successfully file a trademark lawsuit, GAAFirst need basis1996years "Irish trademark law" The first14Provision of article, Prove that the use of a registered trademark is an infringement. For this purpose, GAAMust prove that the trademark is "Transaction process" Be used in.

The use in the transaction process takes place in the context of commercial activity, For financial gain, Not personal matters. Supermac' sMight argue, It was used as part of an April Fool's joke, But one thing is for sure, Supermac' sIt is used as part of commercial activities carried out for commercial benefit. same, Supermac'sAbout the use of the brand is not "Trademark meaning" Use on, Nor can any claim that serves as a mark or guarantee of origin.

Infringement category

"Irish trademark law" Three types of infringement are specified in the law, GAAA trademark infringement claim can be filed accordingly.

To prove double feature infringement, GAANot only to prove the infringedCroke ParkThe trademark is the same, Need to proveSupermac'sThe class of services for which the mark is used is the same as the class of services for which the mark is registered. therefore, Only ifCroke ParkWhen a trademark is registered for the purpose of advertising or promoting related services, This reason is applicable. Croke ParkTrademarks are not registered for these services, thereforeGAAThere may be difficulties in asserting the same class of services.

Except to prove that the mark is identical or similar to the same or similar goods, The second type of infringement also requires proof of consumer confusion. therefore, GAAMore likely to rely on the third reason, Reputational reasons: The trademark cannot be used improperly, And cause unfair use or damage to the registered trademark.

Does trademark law allow parody?

The problem with parodies of brands is that trademarks can be diluted. Unlike copyright law, There is no clear defense against parody in trademark law, But there could be an argument for a parody exception——See the defense section below for more information.

Trademark dilution is the unauthorized use of a trademark, This may diminish the distinctiveness of well-known trademarks. If the right holder wants to claim that his trademark is watered down, It is necessary to prove that the trademark has a high reputation and recognition in the jurisdiction. In Ireland, GAAThe trademark is likely to meet this standard, Because it is considered a household name.

The most common form of dilution is what people call "Blur" , It is the beginning of a boundary between two previously unrelated trademarks or brands "Blur" , And relate to each other in people's minds. In this regard, Supermac' sSponsored by Business Galway CountyGAASports teams and their logos appear on team jerseys, That makes a lot of sense. This factor is likely to intensify "Blur" Risk of, Or increase people's awarenessSupermac' sandGAAThere is a connection between the perception.

In addition, GAAIt is also possible to argueSupermac' sattempt "hitchhike" . "hitchhike" It's a name for another form of dilution, Refers to the unauthorized use of a well-known trademark on unrelated goods or services, The purpose is to create a positive association with goods or services that legally use the well-known trademark. Infringement and dilution are two different concepts, thereforeGAAThere is no need to prove consumer confusion.

demurrer——Good faith grounds

If someone claimsSupermac' sUsed in the trading processCroke Parktrademark, Thus constitute infringement, In that waySupermac' sCertain statutory defences may be sought, include "Irish trademark law" The first14 (6) Defence in article. The first14 (6) Clause allow "For the purpose of identifying the goods or services of the registered trademark owner or licensee" While using a trademark.

however, Supermac' sTo use this defense successfully, You have to prove it's trueGAATrademarks are used in accordance with the practice of good faith in trade or business affairs, And that the use of the mark is not unfairly exploited or impaired without just causeGAAThe distinguishing feature or reputation of a trademark.

If faced with a lawsuit, Supermac' sOther statutory defences may be invoked. In addition, Supermac' sIt is also possible to claim that its use constitutes a non-significant use of artistic expression in accordance with the convention of good faith, This is a non-binding provision of EU trademark law on which Irish trademark law is based and recognised. In that sense, Supermac' sarguable, Parody can be classified as artistic expression——This is an argument that the Irish courts have not yet considered.

finally, Supermac' sIt can only win if it proves that it has used the registered trademark in good faith in accordance with the law. Such as, If the trademark is used in a way that gives the impression of a commercial connection between a third party and the owner of the trademark, Unfair use of a trademark's distinctive feature or reputation affects the value of the trademark, And cause the reputation of the trademark to be damaged or defamed, Then the use of the trademark is inconsistent with good faith practices in trade and business affairs.

Sum up

This case provides a typical example, How can a seemingly innocuous joke on social media raise legal risks. The risk of trademark infringement should be taken into account in corporate social media policies, Enterprises should think twice before using another party's registered trademark. (Be compiled fromwww. pinsentmasons. com)

TRANSLATORS: Wu Xian　proofread: Wang Dan



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