A (in)aplicabilidade da exceção de paródia do direito de marcas
: com enfoque no regime das marcas de prestígio

  • Ana Beatriz Figueiredo Duarte de Almeida Pereira (Student)

Student thesis: Master's Thesis

Abstract

The act of parody uses a pre-existing work as a basis for the social or political commentary it intends to convey, pursuing essentially humorous purposes, and thus creating a new reality, with autonomy from the first, aiming precisely at this distance between the two in order to be considered a successful parody. To this day, there is a strong struggle to safeguard freedom of expression, from whatever perspective (political, religious, artistic, moral), to the detriment of other areas of community life. For this reason, the parodiant seems to be given greater scope to create and disseminate his parody, emphasized by the media that facilitate this work today. The other side of the coin is that the owners of the rights that may be the focus of this sarcastic or humorous commentary fear that they will be diminished and, in some cases, harmed by what may result from the unconditional sharing of this freedom of expression. In particular, the owners of prestigious trademarks, as the main targets of criticism or appreciation - both negative and positive - for their notoriety in the eyes of the public, wish to be protected from the dilution and possible degradation of the prestigious nature of their distinctive sign. The extent of the protection granted to these owners varies across the globe: the United States of America is quite permissive of parody in relation to industrial property rights, but in Europe this cannot be said with the same certainty. In Portugal, there is still no provision for an exception to the rights of owners of prestigious trademarks, conditioning their reaction to infringements of their signs resulting from parody, and the question arises as to whether this provision needs to be express or whether, on the other hand, it is the result of an extensive interpretation of current legislation. We conclude, duly substantiating it throughout this dissertation, that the parody exception is applicable to trademark rights (i.e. prestige rights), although we do not see an express and detailed consecration of this reality as urgent, as it results from the combined normative interpretation of the key diplomas in this area: CRP, RMUE and CPI.
Date of Award5 Jul 2024
Original languagePortuguese
Awarding Institution
  • Universidade Católica Portuguesa
SupervisorNuno Sousa e Silva (Supervisor)

Keywords

  • Parody
  • Trademark law
  • Exception

Designation

  • Mestrado em Direito

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