Likelihood Of Confusion In Trademark Law

According to China’s current law,"Identical/Similarity" standard is trademarkinfringement test, namely, as long as using identical or similar trademark on identical orsimilar products can be hold trademark infringement, regardless of whether consumers areconfused. On one hand,"Identical/Similarity" standard excessively widens the scope ofprotection to trademark owners, which are easy to form "symbolic violence". On the otherhand, there are logical relationship errors among "similarity of trademarks","Proximity ofproducts or services","Likelihood of confusion" and "trademark infringement". Comparingwith foreign legislation,"likelihood of confusion" is the criterion of trademark infringementin most jurisdictions of the world, while "similarity of trademarks" and "Proximity ofproducts" are only two assessing factors in the judge. In addition to "similarity of trademarks"and "Proximity of products", there are still other consideration factors such as defendant’sintent, actual confusion, strength of trademark and the degree of care employed by consumers.It is important to correct our unreasonable "Identical/Similarity" test and establish "likelihoodof confusion" criterion. This article is intended to start with legitimacy of likelihood ofconfusion, put the development of likelihood of confusion as the main line and in the view ofmulti-factor test in order to have a deep study on likelihood of confusion theory, aiming topoint out China’s legislation deficiency and propose the construction opinions.The paper mainly uses comparative analysis, case analysis, interdisciplinary analysis.Method of comparative analysis and case analysis are almost throughout the entire thesis. Onthe basis of collecting and digesting large amounts of related materials about United States,European Union and Canada, the paper reaches a conclusion that the biggest deficiency ofChina’s trademark law is lack of fundamental criterion of likelihood of confusion. In theprocess of argumentation, the article quoted a large number of domestic and foreign classicalcases, such as ATMOS clock case of USA, CANON case of EU, BARBIE case of Canada andBlue Storm case of China. When comes to consumer, the article introduces "consumerbehavior model" and give a interdisciplinary analysis to "reasonable prudent consumer" and"the degree of care". In addition to the above three major analysis methods, the article stilluses historical analysis and dialectical analysis.The main innovation of this paper is the idea about "common authors" model. By studying on the formation of brand value, there are two stages in fact: in the first stage,trademark registrant selects an existing symbol or creates a new symbol as his trademark andputs into market; in the second stage, consuming public begin to recognize the trademark.This stage is particularly important, because the degree of recognition decides the scope thetrademark protection at last. Since trademark registrant and consumers both contribute tobrand value, they are entitled to be common authors. In a result, consuming public as thecommon creator of trademark value should be protected, and likelihood of confusion testproperly achieves the balance of interests between trademark registrant and consumers.In the structure, the paper is divided into six parts, and the total amount is about180,000words.PartⅠ demonstrates the jurisprudence of "Likelihood of confusion" and recounts theconception, genesis, development and functions of "Likelihood of confusion". First of all, thechapter has a research on jurisprudence of "Likelihood of confusion". Utilitarian andeconomic theory cannot justify "Likelihood of confusion", because the theory goes afterwealth maximization and economic efficiency, excessively widens the scope of protection totrademark owners, paying less attention to consumer rights, leading to interest unbalancesbetween trademark owner and consuming public at last. Social-planning theory confirms therole of consumers played in the process of brand value creation, holding that trademark ownerand consuming public create brand value together. In this sense, consuming public are entitledto be protected from trademark confusion. While there are still some disadvantages.Forexample, the conception of "distributive justice" belongs to subjective recognition,thereforeit is difficult to reach a uniform judicial notice in practice. In addition, the theory itselfovertones planned economy color, so it goes against trademark owner’s rights to be confusedby trademark uses and impedes the free competition. In conclusion, adopting the combinationof the two theories as the foundation of likelihood of confusion is much better. Secondly, thechapter defines the concept of likelihood of confusion in the view of trademark functions, andagrees with the definition of likelihood of confusion in broad sense. Thirdly, the chaptercombs the genesis and development of likelihood of confusion. In early period,the courtsusually based on fraud theory to hold liability of trademark infringement. However, fraudtheory could not protect trademark owner and consuming public adequately. Therefore, thecourt began to look for new trademark infringement test: likelihood of confusion. Initially,likelihood of confusion only referred to source confusion of goods at sale, subsequently expanded to initial interest confusion, post-sale confusion, reverse confusion and so on. Lastly,likelihood of confusion not only clarifies the scope of exclusive right, but also properlybalances the interests of trademark owner, consumer and other competitors.PartⅡ explores two forms of likelihood of confusion existing in judicial practice,presumption and determination. Presumption rules apply to identity case, namely, identicalmark using on identical product, and determination rules are adequate for the other casesexcept there is no trademark infringement, including similar marks using on identical goodsand similar marks using on similar goods. In the specific application of likelihood ofconfusion, most of the countries apply "multi-factor tests" to evaluate likelihood of confusion.By comparison,the test basically consists of five factors, particularly "mark factor","productfactor","consumer factor","defendant’s intent" and "actual confusion". According to"multi-factor tests", there are flexibility and interrelatedness among the factors. Each factor ismutable and relative. As a result, when judging a certain case, the court should not put toomuch emphasis on individual factors, while related factors may be consolidated forconsideration.PartⅢ from judicial model and consumer cognitive behavior model, interprets themeaning of "rational consumer" and takes related factors which will evaluate the level ofconsumer attention into accounts. This part tries to combine developed consumer cognitivebehavior with judicial practice so that it can heal the gaps between theory and practice.Meanwhile, this part discusses the factors evaluating the level of consumer attention, such asthe price of product, length and complexity of the purchase process, frequency of purchase,the purchaser’s own conditions, the types of the purchaser and so on.PartⅣ mainly discusses trademark factor in the course of evaluating likelihood ofconfusion. Trademark factor includes two specific factors, strength of trademark andsimilarity of trademarks. Generally, the higher strength of the trademark, the more protectionto trademark; in contrast, the lower strength the trademark is, the less protection to trademark.Notably, strength of trademark is not equal to the distinctiveness of trademark, but theintegrations of the distinctiveness and the fame. Meanwhile, strong and weak are relative,only for convenience of analysis. In fact, most trademarks lie in extensive intermediate zone.Furthermore, the strength of trademark is variable so that the courts should comprehensivelyconsider both the inherent conceptual strength and commercial strength. In the sense oftrademark law, trademark similarity is confusing similarity, the similarity in physical meaning or nature state is not sufficient. When assesses the similarity of trademarks, there are someprinciples should be obeyed. For examples, focus on the general level of reasonable prudentconsumers, compare the marks in their entireties and put much attention to the main part,consider marks singly or together referring to real market conditions, strength of marks,specific historical and actual uses of mark and so on. In addition, the courts usually applysound, meaning and appearance to analyze the trademarks between the parties.PartⅤ analyzes product factor in the course of evaluating likelihood of confusion. Thelaw on commodity protection changed from "competition" rules,"same descriptive property"rules to "related goods" rules. The boundary of product protection is likelihood of confusion.When assesses the Proximity of products s, the courts tend to refer to classification of product,functions and attributes of the products, strength of mark, similarity of marks, competitionrelationships between products, quality of products, sale channels, product diversity andnatural expansion.PartⅣ rethinks present legislations and disadvantages of China’s trademark infringementtest, and proposes constructed opinions. In the legislative purposes, China’s current trademarklaw excessively widens the scope of protection to trademark owners, but pays less attention toconsumer rights. These facts lead to interest unbalances between trademark owner andconsuming public at last. In China’s current trademark law text, there is not a "likelihood ofconfusion" concept, said nothing to it. Although referred to "likelihood of confusion" injudicial interpretation later, China’s trademark law did not put "likelihood of confusion" in abasic position. According to China’s current trademark law, infringement test is"Same Similarity" standard, namely, as long as the actor apply a identical or similar trademarkand use on a identical or similar product, there is a trademark infringement, It doesn’t matterwhether consuming public have been confused."Same Similarity" standard violates the basicfunctions of trademark and tends to form "symbolic violence", meanwhile it lies wrongpositions to "similarity of trademarks","Proximity of products","Likelihood of confusion"and "trademark infringement". Suggestions: first of all, relocate the legislative purpose oftrademark law, protect both trademark owners’ interest and against consumer confusion, at thesame time maintain free competition. Secondly, make clear the logical relationships among"similarity of trademarks or Proximity of products","likelihood of confusion" and "trademarkinfringement". It is crucial to make "likelihood of confusion" as trademark infringement basictest. Thirdly, applying "multi-factor "to assess "likelihood of confusion", including actual confusion, similarity of marks, strength of mark, Proximity of products, attention level ofreasonable prudent consumers, defendant’s intent and all factors related to certain case.