Determination of Infringement of Trademark Confusion

DOI: https://doi.org/10.62517/jel.202414616

Author(s)

Xueqing Zhou

Affiliation(s)

School of Law, China Jiliang University, Hangzhou, Zhejiang, China

Abstract

Trademarks are attached to goods and are marks for identifying the source of similar goods or services. Real social life is complicated and various trademark infringements emerge in an endless stream. In order to safeguard the legitimate rights and interests of producers and operators who provide goods or services and relevant consumers, it is necessary to clarify what the identification standards for trademark infringement are. After years of research and development, the trademark law in China has developed from the traditional single similarity standard to a dual-standard model in which similarity and possibility of confusion coexist. This paper first briefly explains the relationship between trademark confusion theory and trademark infringement, and further demonstrates the theoretical basis for the existence of possibility of confusion. Secondly, by studying various more mature trademark infringement determination standards abroad, and realistically combining the current development status of China's trademark law, further clarify the status and value of China's possibility of confusion standard in judging trademark infringement. Thirdly, by comparing and studying trademark infringement cases that occurred in China's practice, the problems existing in China's current trademark infringement determination are analyzed. Finally, suggestions for improving the possibility of confusion theory in China's trademark infringement determination are put forward to further clarify the relationship between the trademark similarity standard and the possibility of confusion standard.

Keywords

Trademark Infringement; Likelihood of Confusion; Trademark Similarity; Goods Are Similar; Relevant Public

References

[1] Qian Wang. Intellectual Property Law Course. China Renmin University Press, 2021, 610. [2] Mingde Li. American Intellectual Property Law. Beijing Legal Publishing House, 2014, 204. [3] Lianfeng Wang. Trademark Law. Beijing Peking University Press, 2023, 161. [4] Taiping Wang, Jiehua Lu. Judgment criteria for trademark infringement under EU trademark law. Intellectual Property, 2014(11):78. [5] Lihua Yang, Xun Yang. Reconstruction of likelihood of confusion and trademark infringement determination: From the perspective of Article 57, Paragraphs 1-2 of China's Trademark Law. Journal of Shaoyang University, 2021 (6): 49. [6] Xuelong Peng. On likelihood of confusion: A review of the Draft Amendment to the Trademark Law of the People's Republic of China (Draft for Comments). Legal Science (Journal of Northwest University of Political Science and Law), 2008(1):130. [7] Homeowners Grp, Inc. v. Home Mktg. Specialists, Inc., 931 F. 2d 1100 (6th Cir. 1991). [8] Civil Judgment of Hangzhou Railway Transport Court (2020) Zhejiang 8601 Minchu No. 1746. [9] Civil Judgment of Guangdong Provincial High People's Court (2016) Yue Min Zai No. 447. [10] Hehui Yao. On the confusion standard for trademark infringement judgment: Interpretation of Article 57, Paragraph 2 of the Trademark Law of my country. Jurist, 2015(6):174. [11] Graeme B. Dinwoodie, Mark D. Janis. Trademarks and Unfair Competition: Law and Policy (3rd edition), Walters Kluwer Publish, 2012, p.506-508. [12] Ying Du, Yuqing Yang. Definition of relevant public in judging likelihood of trademark confusion. Journal of Suzhou University, 2023, 10(2):114. [13] Mengchifei Ma. The relationship between likelihood of confusion and similarity judgment in trademark authorization and confirmation. China Trademark, 2021, (11):66.