by David C. Buxbaum and Jiang Yingyan

 

Introduction to Fair Use in US Law

While fair use of protected trademarks and copyrights by third parties is lawful under certain circumstances in both China and the United States, the legal foundation of these rights are, however, somewhat different.

 

Constitutional Protection

For example, the First Amendment to the US Constitution protects free speech but does make a distinction between commercial and non-commercial use, where non-commercial use is afforded a higher level of protection¹. Therefore,“it is a defense to both trademark-infringement and trademark-dilution claims that the challenged use of another's trademark is non-commercial²”. Thus, if the use of the mark is not in connection with a good or service or is non-commercial, these are good defenses against infringement or dilution³ by blurring or tarnishment.

 

Nominative Fair Use

The United States Court of Appeals for the Ninth Circuit developed the concept of nominative fair use, which is particularly important when referring to a business competitor's mark or product⁴ in comparative advertising. One can state facts about products or services, can have consumer surveys, etc, but “[s]uch uses generally are permissible so long as the comparison does not disparage the competitor, make claims that are inaccurate or untruthful or mislead consumers, or cause consumers to be confused about the source of the goods or services or the relationship between the businesses⁵”.

 

The Ninth Circuit in New Kids on the Block v. News Am. Publ'g, Inc.devised a three-part test for nominative fair use, namely that“ (i) the plaintiff's product or service may not readily be identified without the use of the trademark; (ii) the defendant has used only so much of the mark as is necessary to identify the product or service; and (iii) the defendant has not done anything that would suggest that the plaintiff had sponsored or endorsed the defendant⁶.”

 

In 2016, however, the Second Circuit in Polaroid Corp v Polarad Elecs. Corp., established the Polaroid⁷ factors and stated that the factors, including a likelihood-of-confusion analysis, should apply to nominative fair use⁸. “The Second Circuit's Polaroid factors are (1) strength of the senior user's trademark; (2) similarity of the marks; (3) proximity of the products and their competitiveness with one another; (4) evidence that the senior user may “bridge the gap” by developing a product in the market of the alleged infringer's product; (5) evidence of actual confusion; (6) evidence that the imitative mark was adopted in bad faith; (7) quality of the defendant's product; and (8) sophistication of buyers in the relevant market⁹.”

 

Therefore, the Circuits have different standards as to nominative fair use, although there are significant similarities between them. While the doctrine of nominative fair use is a common-law remedy in infringement cases, it has been codified in trademark-dilution cases¹⁰.

 

Parody

Parody is a common-law defense to a trademark-infringement claim in and a statutory defense to a trademark-dilution claim¹¹. Parody is considered a fair-use defense. Parody may be considered a First Amendment defense¹².

 

A good example of the parody defense is the Louis Vuitton Malletier, S.A. v. My Other Bag, Inc caseThis case involved both trademarks and copyright. For parody to constitute nominative fair use: “(1) the use of the plaintiff's mark must be necessary to describe both the plaintiff's and the defendant's product; (2) the defendant may only use as much of the plaintiff's mark as is necessary to describe the plaintiff's product; and (3) the defendant's conduct must not imply that its product is sponsored by or affiliated with the plaintiff¹³.”

 

The parody in this case is, in part, based on labels Americans put on their beat-up cars some years ago. My Other Bag (or “MOB”) produced two very ordinary bags that slightly resembling Louis Vuitton's (or “LV”) bags, one having a picture of part of Louis Vuitton's bag and a second with the words “My Other Bag”. The district court, quoting Haute Diggity Dog, 507 F.3d at 260, held that parody is “a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark's owner.”¹⁴ It should be clear that the parody is not connected with the trademark of the product that is the object of the joke.¹⁵ “[A] parody should convey a message about the target trademark or its owner.”¹⁶ The parody should poke fun at the mark that is the object of the parody. A simple play on words or social comments cannot constitute a parody and thus avoid liability for using another person's trademark.

 

As to trademark dilution, the court held that Louis Vuitton's claim “failed because MOB’s tote bags posed “no danger of impairing the distinctiveness of Louis Vuitton's marks.” In the court's view, MOB's comical tote bags would instead, if anything, “reinforce and enhance the distinctiveness and notoriety of the famous [Louis Vuitton] brand.”¹⁷  

 

The Second Circuit agreed holding, “[s]pecifically, obvious difference in MOB's mimicking of LV's mark, the lack of market proximity between the products at issue, and minimal, unconvincing evidence of consumer confusion compel a judgment in favor of MOB on LV's trademark infringement claim. Accordingly, we affirm this part of the summary judgment award to MOB.”¹⁸ The district court held that MOB's “stylized almost cartoonish rendering of Louis Vuitton's bags helped build significant distance between MOB’s inexpensive workhorse totes and the expensive handbags they are meant to evoke.” Part of the brunt of the joke is Louis Vuitton's stylized bags, and it plays on a well-known joke about “my other car”.¹⁹

 

Trademark Dilution

The district court, after finding My Other Bag's use of Louis Vuitton's trademark constituted fair use, held that My Other Bag's comical tote bags would not impair that distinctiveness of the famous Louis Vuitton brand. Therefore, Louis Vuitton's trademark-dilution claims under federal and New York law failed. Louis Vuitton failed to show that My Other Bag's use of the marks were likely to blur consumer's ability to distinguish the source of the goods.²⁰

 

Trademark and Copyright Infringement

As the court held there was: “no credible risk that a reasonably prudent consume would think Louis Vuitton 'sponsored or otherwise approved' of MOB's totes.”²¹ The cartoonish rendering of the Louis Vuitton bags by My Other Bag adequately separated them from the real bags of Louis Vuitton.²² There was also a very big distance in price, intended use, and a market for the company's bags. The court found intend to amuse, but not bad fame.

 

As to copyright infringement, the fair-use test is found in the Section 1125 of the Copyright Act.“ [T]he existence of parody will typically lean the analysis in favor of the defendant, even if it is being used for commercial gain.”²³ In a copyright claim, commercial use weighs against finding fair use, but parody, even for commercial game, can be fair use. The court found My Other Bag's totes were not a market replacement for Louis Vuitton bags.²⁴ The court stated, "[a]s the My Other Bag's opinions demonstrate, true parody is still a defense to trademark and copyright claims"²⁵.

 

Keyword Advertising

When parties purchase trademarks of competitors as keyword search terms, the issue is whether it “gives rise to a likelihood of consumer confusion as to the source of the advertiser's paid search result.”²⁶

 

Introduction Fair Use in Chinese Law: Nominative Fair Use and Descriptive Fair Use

In China the third amendment of the Trademark Law in 2014 for the first time dealt with fair use. The Trademark Law, Article 59 (1) provides regulations for fair use of trademark.  “An exclusive right's holder of a registered trademark has no right to prohibit other persons from legal use of the common name, logo or model of the goods covered by such registered trademark, or the quality, principal raw materials, functions, purposes, weight, quantity and other features of the goods explicitly expressed in such registered trademark, or the geographic name of such registered trademark”. This provision corresponds to the “Nominative Fair Use” in America, namely if one can properly describe a certain object or service only by using a certain trademark, the trademark holder cannot prevent a third party from fairly mentioning the trademark and its products or services.

 

However, the Trademark Law, Article 59 only involves trademarks for products. As for the provisions of service trademarks, we can only refer to Article 7 (3) of the Opinions on Several Problems about Protection of Service Trademarks issued and effected by the State Administration of Industry and Commerce in 1999, where it states that :"If other people normally use customary signs in service industries and use trade names (business names), names, geographic names and names of service locations in a normal way to express the features of the services, to explain service items, etc., they will not infringe on the exclusive rights of the service trademark use, except for those with clear wrongful competitive intent".

 

Apart from “Nominative Fair Use”, there is also “Descriptive Fair Use” regarding commercial fair use of trademarks in American law. The Lanham Act, Section 33 (b) (4) states: “that the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, of the party's individual name in his own business, or of the individual name of anyone in privity with such party, or of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin” is fair use. As for “Descriptive Fair Use”, there are no clear specifications in the Trademark Law in China. The relevant provisions only appeared in the Explanations for Several Problems Regarding Examination of Trademark Civil Disputes issued by Beijing High People's Court in 2006. However, in current judicial practice, many cases succeeded in their plea by applying “Descriptive Fair Use”. For example, the dispute between Prada Co., Ltd. vs. Chongqing Rui Fu Business Management Co., Ltd. ²⁷ over the infringement of trademark rights.

 

What are the important terms for fair use of trademark signs specified in Article 26 of the Explanations for Several Problems Regarding Examination in Trademark Civil Disputes (“Explanations”)²⁸ issued by the Beijing High People's Court in 2006?

 

The fair use of trademarks shall be subject to the following important terms:

(1) that the use of the trademark is in good faith;

(2) that the use of the trademark is not for the trademark of one's own products; and

(3) that the use of trademark is only for the explanation or description of one's own products.

 

What are the acts considered as fair use of trademarks in the Explanations?

The following acts fulfilling the important terms specified in Article 26 of this Explanations are considered as fair use of trademark signs:

(1) use of the common name, shape or model of the goods covered by the registered trademark;

(2) use of the nature, purposes, quality, main raw materials, types and other features of the goods explicitly expressly covered by the registered trademark;

(3) use of others' registered trademark in order to explain the origin, instruction purposes, etc. to a necessary extent when selling goods;

(4) normal use of one's own company name and business name which is the same as or similar to others' registered trademarks;

(5) use of the name of one's location which is the same as or similar to others' registered trademarks; and

(6) other acts subject to the fair use of trademarks.

 

The opinion of the Beijing High Court is comprehensive. Not only does it specify the applicable standards for the regulation of trademark fair use, but it also lists examples for “Descriptive Fair Use”, which is very feasible. However, this document is just the opinion of the local high people's court for the judicial work of the court in its jurisdiction, and has limited application, which is not the basis for judgments of judicial authorities in other jurisdictions in China, yet many courts follow these Explanations.

 

Leading Cases in China Regarding Fair Use

There are some important cases that are illustrative of the way Chinese courts deal with issues of fair use.

 

Prada Co., Ltd. vs. Chongqing Rui Fu Business Management Co., Ltd ²⁹

 

The Plaintiff, Prada Co., Ltd. holds the exclusive rights of the registered trademark “PRADA” in China. In December 2013, the Defendant, Chongqing Rui Fu Business Management Co., LTD. opened a shopping mall. In the atrium on the first floor of the shopping mall, an exclusive selling area was defined with glass walls where a European boutique sold clothes, bags and other items of eight brands including GUCCI, PRADA, and BV. Several light-box advertisements were set up at the entrance of the shopping center, one of which vertically displayed eight trademark signs including GUCCI, PRADA, BV, etc. in the lower left corner. There were three doors for access to the European boutique. The said 8 trademarks were horizontally displayed on the glass doors and in the middle of the glass walls with fixed intervals between each trademark, as well as vertically displayed on the billboard inside and outside the boutique.

 

On December 2014, the Plaintiff appealed to the court, indicating that the Defendant used the trademarked word “PRADA” in a bold and explicit way in its shopping center without permission, which infringed on the Plaintiff's exclusive right to its registered trademark. The Plaintiff requested that the court order the Defendant to stop the infringement and compensate it.

 

The Chongqing Yuzhong People's Court made a civil judgment in the first trial, holding that pursuant to the Trademark Law of the People's Republic of China, Article 48: which states that “the use of a trademark, as referred to in this Law means the use of the trademark on goods, packages or containers and trading documents, or the use of the trademark in advertising, exhibition and any other business activities so as to distinguish the origin of goods”, a trademark is a sign used by a provider to distinguish its own products or services from others' same or similar kinds of products or services. It is mainly for distinguishing the origin of products or services.

 

As for the issues of nominative fair use of trademarks, although there are no express terms in the Trademark Law, in judicial practice, it is commonly held that nominative fair use of trademark refers to an operator's fair use of others' registered trademarks in good faith in business activities so as to explain the origin, purposes, service targets of its own products or services and the inherent features of other goods in an objective way. The criteria on whether it is nominative fair use of trademark should be decided by the following: (1) the legitimacy of purpose, namely a trademark user should act in good faith when using others' registered trademarks; (2) the necessity of the demand, namely a trademark user “has to use” the trademark holders' trademarks in order to explain the origin, components, weight and other features of the goods or services, otherwise he cannot explain the specific source of the goods or services; (3) the proper extent, namely a trademark user should use others' trademarks to a proper extent only to meet the purpose for distinguishing the origin of the goods or services; and 4. the certainty of the result, namely a trademark user cannot confuse customers about the origin of the goods or services when using others' trademarks.

 

In court, PRADA did not raise any issues about whether the clothes of “PRADA” purchased in this boutique were certified “PRADA” products. Therefore, based on the current evidence, the court of first instance held that “PRADA”'s goods sold in this boutique were not counterfeits. Under these circumstances, Rui Fu Company advertisement in its business to explain the origin of the products it sold in an objective way was a legal business activity. It aimed to advise the customers that the European boutique in the Rui Fu Shopping Center included products of “PRADA” and the eight other famous brands when they saw the advertisement, but not to indicate that the Plaintiff opened an exclusive shop in this shopping center. Rui Fu Company used the trademark “PRADA” in good faith and only to explain the origin of its products. Moreover, while using the trademark, it did not defame PRADA's reputation, nor did it lie to or confuse customers. As a result, Rui Fu Company did not exceed the proper extent of nominative fair use of a trademark, nor did it cause improper damages to the rights and interest of the trademark owner of “PRADA”; therefore, it was not trademark infringement.  

 

On 20th November 2015, however, the Chongqing's Fifth Intermediate People's Court made a final judgment and remanded the case to the first trial court. The Chongqing's Fifth Intermediate Court changed the trial court judgment. Rui Fu Company actually breached the rules of fair competition, damaged the trademark holder's legal rights and interest, disrupted normal market competition, and committed unfair competition.

 

 

Guccio Cucci S.P.A. vs. Ningbo Outlets Co., Ltd. ³⁰

 

Guccio Cucci S.P.A. (hereinafter referred to as “GUCCI”) is the trademark holder of the trademark “GUCCI” in China. It is registered as an International Classification No.9 (glasses, sunglasses, etc.), No.18 (bags, traveling bags, wallets, etc.) and No. 25 (clothes, shoes, socks, etc.). On 28th October 2009, GUCCI claimed in the Ningbo Intermediate People's Court that Ningbo Outlets Co., Ltd. (hereinafter referred to as “Ningbo Outlets”) used the same word as the registered trademark “GUCCI” as its business name without GUCCI's permission. It pointed out that the trademark “GUCCI” appeared in the center of and around the Outlets No. 108 store, as well as on the billboard in the shopping mall and on the company websites, which infringed GUCCI's exclusive right to its registered trademark. At the same time, Ningbo Outlets also used slogans including the company name “GUCCI”, “Mall of international direct-sale brands”, "Entering brand: GUCCI", etc. in breach of the relevant provisions in Law Against Unfair Competition. Ningbo Outlets argued that it gained the franchises of several brands including “GUCCI” through GUCCI's general distributors in Milan. From a subjective perspective, it was not bad faith for Ningbo Outlets to advertise around the Outlets and on its company websites so that the customers could learn real information about the products they proposed to sell, which was trademark fair use instead of infringement. The store was inside the shopping mall, and the name “GUCCI” presented above the store was an indication of the products rather than the business name of the store; the products it sold were certified “GUCCI” products, and the slogans such as “direct-sale brands” were also commonly used in “Outlets”, which was not unfair competition.

 

The court held that Ningbo Outlets' use of the trademark “GUCCI” was not for indication of the origin of the services, which, on a legal aspect, is not the use of a trademark, nor committed trademark infringement. However, it did breach the Law against Unfair Competition when using “GUCCI” as a sign and advertisement for its own store, which would make the public believe that the products in Ningbo Outlets has the same quality and fashion level as the products in GUCCI's exclusive shop, so that it can gain the competitive advantage it does not deserve. Meanwhile, the court held that: Ningbo Outlets had massive advertisements using the trademark and business name “GUCCI” which misguided people with misleading and ambiguous slogans suggesting that the store was a direct-sale store or store franchised and authorized by “GUCCI”. Thus, when Ningbo Outlets used the sign “GUCCI” to promote its company image and expand its commercial influence rather than only to describe its own products or services, it was not proper nor in good faith, and it exceeded the necessary extent of use and promotion. Thus, Ningbo Outlets' defense of trademark fair use failed.

 

Guccio Cucci S.P.A. vs. Harbin Wei Lin Clothes Distribution Co., Ltd.  ³¹

 

On 4th August 2011, GUCCI commenced its suit in the Harbin Intermediate People's Court alleging that Harbin Wei Lin Clothes Distribution Co., Ltd. (hereinafter referred to as “Wei Lin Company”) used the trademark “GUCCI” in the center board of the entrance of the mall without permission, and emphasized “GUCCI” in its photos for the publicity materials in newspapers, product labels, etc. Wei Lin Company introduced evidence proving that the “GUCCI” products it sold were certified. Pursuant to Explanations for Several Problems Regarding Examination on Trademark Civil Disputes, Article 1, the Harbin Intermediate People's Court held that Wei Lin Company's emphasizing the trademark “GUCCI” in its commercial board, mislead the public into thinking that the products it sold were all from “GUCCI”, which resulted in confusion, trademark infringement and unfair competition; however, such acts cannot be considered infringement in that it promoted the products in newspapers and in the mall. After the judgment, since GUCCI was not satisfied with compensation it decided to appeal to the Jiangsu High People's Court. Although Wei Lin Company did not appeal, it stated in its defense that its use was fair use, and the Company sold certified “GUCCI” products in order to explain the products' features and ensure consumers' rights of knowledge, and it used the trademark “GUCCI” in good faith. It should not be regarded as infringement. The appeal court maintained the original judgment.

 

While not found on specific provisions in Chinese laws and regulations, major non-commercial trademark fair use is divided into the following types:

(1) use in normal comments and research of this trademark, which mainly refers to reports or objective comments about this trademark quoted in print media or other media. If this kind of use is not frequent or suspected of taking advantage of others, it belongs to fair use.

 

(2) fair use in parody

 

Since trademarks have gradually become a significant factor as they strongly infiltrated modern society, many writers and actors often use trademarks to criticize social problems or seek their solutions, as well as to create art work. For example, the movie Da Wan (or Big Short's Funeral) criticized social reality by using a lot of famous brands. As long as it does not cause damage on the merchants' reputation and confusion in the market, this kind of artistic use is fair use. However, once it crosses certain lines, it will be trademark infringement. A specific example can be seen in a case that the Michelin Group vs. Shanghai He Zhou Advertisement Co., Ltd.  ³² for trademark infringement.

 

The Michelin Red Guide was issued by the Plaintiff whom establish the Michelin-star system. The parent company of the Michelin Group reviews the star levels of French restaurants every year. The Chinese version of the Michelin Red Guide is also published in China. This Guide contains trademarks including the combination of the Michelin Man and the word “MICHELIN”. The Plaintiff successively registered the Michelin Man, “MICHELIN”, “米其林” and other trademarks and their combinations for the products or services in class No.12 (tires of cars), No.16 (prints, magazines, books, guides, hardbacks on the cafe tables, etc.), No.35 (advertisements, etc.) and No.39 (travel services).

 

In 2010, the Plaintiff found that the Defendant, Shanghai He Zhou Co., Ltd. posted an article named Micheling Shanghai Guide in 2010 in That's Shanghai magazine, on pages 38 and 39. At the commencement of this article, it says that “We published a new knock-off the Micheling Guide for all French restaurants in Shanghai...”. This article introduced over 10 French restaurants in Shanghai and labeled them according to the star system from level 1 to level 3. Moreover, it clearly provided the addresses of each restaurant, most of which included contact numbers and websites. Furthermore, the article used a large photo of the Michelin Man holding the tableware as well as the combination of the word “MICHELING” and the Michelin Man figure. The Plaintiff claimed that the Defendant infringed the rights of its registered trademark by using the above signs, thus it commenced suit in court and requested an order that the Defendant stop its infringement and compensate the Plaintiff for  damages.

 

Upon its review, Shanghai Second Intermediate People's Court held that the Defendant used the signs similar to the Plaintiff's registered trademark in the same or for similar services as the Plaintiff's, which infringed on the Plaintiff’s exclusive rights to its registered trademark. As a result, the Court gave judgment in favor of the Plaintiff. Neither parties appealed that judgment.

 

In its analysis of this case in China Intellectual Property News, Shanghai Second Intermediate People's Court stated that when deciding whether parody is trademark fair use, it should consider the following:

 

(a) Parody should be for non-commercial use. If one uses others' trademarks mainly to attract customers or to improve one's popularity without or with only a small intention of parody, he will commit trademark infringement. Although the Defendant's magazine is free to the public, it used a large number of highly similar signs and the words and pictures of Michelin's trademark on the pages where it introduced over 10 restaurants and clearly listed their addresses, contact numbers and websites. From an objective perspective, it commercially promoted the restaurants which became commercial use when parodying the Michelin trademark.

 

(b) A parody of the signs should not cause confusion with the original trademark, especially it shall not be used on the same or similar product types or is not similar in its appearance. Compared to the Plaintiff's trademark, the Defendant's trademark has one more letter “G” at the end of “MICHELIN” and sounds similar to it. As a result, the Defendant's sign is similar to the Plaintiff's trademark from its entire appearance.

 

(c) Parody must have a humorous effect

Parody must have a clear ironic and humorous effect. The purpose of parody is not to attract public attention to the parody makers but to enable the public to create new effects and understanding of the cultural symbol of the parodied trademarks. If such effects cannot be created, the imitation cannot become a successful parody but instead creates suspicion of taking advantage of others' reputation. In this case, although there was a statement like “We published a new knock-off the Micheling Guide...” at the beginning of the article, its weak signal was not enough to eliminate the confusing effects to the consumers of the signs of words and pictures, which results in infringement.

 

(3) The use in dictionaries

The use in dictionaries should satisfy its necessary obligations and explain its origin. It should not mislead the public that this trademark is its common name so as to weaken this trademark. That it happens, the laws should grant the trademark holders the right to correct the dictionary.

 

Conclusion

While the foundation of Chinese and US law are different, judicial interpretation of fair use in both jurisdictions is quite similar.

 

_______________________________

1. Citizen United v. FEC, 558 U.S. 310, 340 (2010): a compelling state interest must be demonstrated to regulate non-commercial speech. See Brooke Erdos Singer and Maxine Sharavsky, “Using Third Parties’ Trademarks: Unpacking Commerciality Competition, and Confusion”, NYSBA Spring 2017, page 17.

2. Singer and Sharavsky, op cit supra, note 1 at page 17.

3. Ibid, page 17; 15 U.S.C.§1125(a)(1) and (c)(1)-(2).

4. New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302,(9th Cir. 1992).

5. Singer and Sharavsky, op cit supra, note 1 at page 23. The authors note that aside from claims under the Lanham Act competitors can make complaints to the National Advertising Division of the Council of Better Business Bureaus and the Federal Trade Commission.

6. Singer and Sharavsky, op cit supra, note 1 at page 23; New Kids op cit supra, note 4 at page 308.

7. 

8. Int'l Info. Sys. Sec. Certification Consortium, Inc. v. Sec. Univ., LLC, 823 F.3d 153 (2d Cir 2016).

9. Singer and Sharavsky, op cit supra, note 1 at page 26.

10. Trademark Dilution Revision Act of 2006, 15 U.S.C.§1125 (C)(3)(A).

11. Federal Trademark Dilution Act of 1995 and the Trademark Dilution Revision Act of 2006, 15 U.S.C.§1125 (C)(3)(A)(ii) 

12. Jeffrey A Kobulnick and Michael A. Bernet, “Parody Products: When should brand owners smile or laugh and when should they sue?”, Landslide, volume 9. Number 6, July/August 2017 at page 20.

13. Kobulnick and Bernet, op cit supra, note 12 at page 20

14. Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F. Supp. 3d 425.434 (S.D.N.Y. 2016). See also Kobulnick and Bernet, op cit supra, note 12 at page 21.

15. Kobulnick and Bernet, op cit supra, note 12 at page 21.

16. Ibid

17. Ibid, page 22; My Other Bag, 156 F. Supp. 3d at 437. This is related to trademark dilution.

18. Louis Vuitton Malletier, S.A.v. My Other Bag, Inc. op cit supra, note 13

19. Kobulnick and Bernet, op cit supra, note 12 at page 21.

20. Ibid at page 22. See Federal Trademark Dilution Act of 1995; and Trade mark Dilution Revision Act of 2006, 15

21. My Other Bag. 156 F. Supp. 3d at 425

22. Ibid the court use the Polaroid factors to analyze it.

23. Kobulnick and Bernet, op cit supra&a

24. Ibid .

25. Ibid 

26. Singer and Sharavsky, op cit supra, note 1 at page 24, and note 52 Rescuesom, 562 F3d 130.

27. 普拉达有限公司与重庆瑞富商业管理有限公司侵犯商标权纠纷案，重庆市第五中级人民法院（2015）渝五中法民终字第04785号 .

28. 《关于审理商标民事纠纷案件若干问题的解答》.

29. 普拉达有限公司与重庆瑞富商业管理有限公司侵犯商标权纠纷案，重庆市第五中级人民法院（2015）渝五中法民终字第04785号.

30. Guccio Gucci S.P.A诉宁波奥特莱斯购物有限公司侵犯注册商标专用权及不正当竞争案，浙江省宁波市中级人民法院(2009)浙甬知初字第355

31. 古乔古希股份公司诉哈尔滨葳琳服饰经销有限责任公司侵犯注册商标专用权及不正当竞争案，黑龙江省高级人民法院〔2013〕黑知终字第4号.

32. 米其林集团诉上海和舟广告有限公司商标侵权案，海市第二中级人民法院(2011)沪二中民五(知)初字第5号

 

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