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Perspective | The Judgment of "Likelihood of Confusion" in Trademark Infringement Cases

Published:

2024-12-25

With the standardized development of the market and the increasing awareness of intellectual property protection, the number of infringement cases involving purely counterfeit registered trademarks has gradually decreased, while behaviors similar to "free-riding" have been on the rise, posing new challenges to trademark protection. According to Article 57, Item 2 of the Trademark Law of the People's Republic of China: "Using a trademark that is similar to a registered trademark on the same type of goods, or using a trademark that is identical or similar to a registered trademark on similar goods without the permission of the trademark registrant, which is likely to cause confusion, constitutes an infringement of the exclusive right to use the registered trademark." This provision applies in cases of trademark similarity or product similarity, and it is necessary to clarify the boundaries of trademark exclusive rights protection, with the likelihood of confusion being an important criterion for trademark infringement.

According to Article 57, Item 2 of the Trademark Law of the People's Republic of China: "Using a trademark similar to a registered trademark on the same type of goods without the permission of the trademark registrant, or using a trademark identical or similar to the registered trademark on similar goods, which is likely to cause confusion, constitutes an infringement of the exclusive right to use the registered trademark." This provision should clarify the boundaries of trademark exclusive rights protection in cases of trademark similarity or product similarity, and the possibility of confusion should be regarded as an important standard for trademark infringement.

1. Determination of Trademark Similarity

According to Article 10 of the Interpretation of Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Trademarks by the Supreme People's Court, trademark similarity should be judged according to the following principles: (1) based on the general attention of the relevant public; (2) both an overall comparison of the trademarks and a comparison of the main parts of the trademarks should be conducted, and the comparison should be carried out separately in an isolated state; (3) when judging whether the trademarks are similar, the distinctiveness and reputation of the registered trademark being protected should be considered.

2. Comprehensive Determination of Confusion

"Confusion" requires that the relevant public is misled about the source of the trademark or goods. First, the Trademark Law does not explicitly define the specific meaning of "confusion"; second, trademark similarity does not necessarily imply the possibility of confusion; therefore, after determining similarity, it is also necessary to assess the possibility of confusion.

According to the provisions of the Interpretation of Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Famous Trademarks by the Supreme People's Court, if it is sufficient to mislead the relevant public about the source of goods using a famous trademark and the accused trademark, or to make the relevant public believe that there is a specific connection such as a licensing relationship or affiliated enterprise relationship between the operators using the famous trademark and the accused trademark, it falls under the "likely to cause confusion" as stipulated in Article 13, Paragraph 2 of the Trademark Law.

According to the provisions of the Interpretation of Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Trademarks by the Supreme People's Court: "The relevant public referred to in the Trademark Law refers to consumers related to a certain type of goods or services identified by the trademark and other operators closely related to the marketing of the aforementioned goods or services."

In summary, the law does not provide a clear determination of "confusion"; as long as the conditions for misleading the relevant public about the source of the accused trademark and goods are met, it constitutes a determination of "confusion" in trademark infringement cases.

3. Comprehensive Judgment of the Possibility of Confusion

The possibility of confusion needs to be judged based on the general attention of the relevant public, and is not simply determined by comparing products. It is necessary to consider the market environment in which the product operates for a comprehensive judgment, examining whether consumers in the market environment are likely to confuse the source of the goods and their recognition of the trademark. The judgment of trademark similarity has certain objective standards and can be clearly distinguished through simple comparisons, while the possibility of confusion is more subjective and requires consideration of multiple factors. In determining the possibility of confusion involved in trademark infringement, various factors such as the distinctiveness of the trademark, the similarity of product types, the similarity of product packaging and decoration, the subjective intent of the infringer, the degree of consumer attention, the sales environment and channels, and product prices should be comprehensively considered.

Relevant laws and regulations:

Article 57, Item 2 of the Trademark Law of the People's Republic of China, Article 10 of the Interpretation of Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Trademarks by the Supreme People's Court, Article 9, Paragraph 1 of the Interpretation of Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Famous Trademark Protection by the Supreme People's Court, Article 8 of the Interpretation of Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Trademarks by the Supreme People's Court.

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