Likelihood Of Confusion In Identification Of Trademark Infringement

"Likelihood of Confusion" is an important issue in the field of trademark law,which has been under debate for a long time.Although lots of rich academic resources and practical experience had been formed by years of research and exploration,there is still much doubt in many questions to be understood and grasped.The Trademark Law of PRC which is revised in 2013 has specified that"Likelihood of Confusion"should be investigated in identifying the trademark infringement behavior,it means that "Likelihood of Confusion" has been approved on the legal level.However,it will meanwhile bring some impact to the previous understanding and practice of "Likelihood of Confusion" in China,in particular,it will rise theoretical debate in such aspects: the relationship between "Likelihood of Confusion"and proximity of trademarks or similarity of products;the investigation order of the former three aspects in identifying the trademark infringement behavior;and the status of "Likelihood of Confusion"in identifying the trademark infringement behavior with different proximity degree of trademarks or similarity degree of products.This thesis study "Likelihood of Confusion"issue in the context of trademark infringement,which study from the perspective of basic theory,in order to overcome the limitations which caused by the study from practice and specification level,and find the correct foundation and direction of theoretical study.In addition to the introduction and conclusion,there are five chapters in this thesis.In the first chapter,the author generalize and comb the basic content and historical development of "Likelihood of Confusion"theory,for providing evidence of historical evolution for analyzing and understanding the reason and theoretical basis of "Likelihood of Confusion"and related system,which can strengthen the persuasive power of argument.This chapter use the historical development of "Likelihood of Confusion"theory as a core,which point out that "Likelihood of Confusion"theory arise accompanied by the "fraud lawsuit" and expand accompanied by the popularity of"trademark propertization".In the early time,"Likelihood of Confusion"meant that the consumer had confusion over the specific provider of goods or services or whether the goods or services are come from the same provider,however,with the appearance and development of"trademark propertization",the absoluteness of trademark rights has enhanced,the scope of protection of trademark rights and trademark infringement behavior have expanded as well,as a result,as the inspection standard of trademark infringement behavior,"Likelihood of Confusion" will naturally has expansion inconception and scope.This expansion is expressed in specific performance made up of from the sources of goods to the affiliated,associated or support relationship;from the forward confusion to the reversed confusion;from in-sale confusion to initial interest confusion or post-sale confusion;from the actual confusion to the probability of confusion;from the real buyer‘s confusion to the other relevant public‘s confusion.In the second chapter,the author study the "Likelihood of Confusion"theory from the perspective of positive analysis.By combing the status quo of the legislation and judicial practice around the world,this chapter will provide reality basis for the theoretical study.First of all,the author selects several countries‘ trademark law such as the United States,the European Union,Japan and so on,and also selects the provisions on the trademark protection of TRIPs,to list the existing legislative mode on"Likelihood of Confusion"in the field of trademark infringement,and analyze the historical roots of the these legislative mode,find out the cause of these different system.After that,in order to enhance the pertinence in study the reference of foreign related system,this chapter also analyzes the development process and existing problems of"Likelihood of Confusion"in the field of trademark infringement in China.The first two chapters analyze and comb some basic problems of "Likelihood of Confusion"such as theoretical connotation,historical development,legislative model and so on,illustrate the past and present of "Likelihood of Confusion"from the vertical and horizontal angles,lay a foundation for the following theoretical research and practical application.The third chapter is the key chapter of this thesis,which deeply discusses the the status of "Likelihood of Confusion"in identifying the trademark infringement behavior from a theoretical perspectives.The general thought of this chapter‘s is that: analyze the essence of the trademark infringement behavior by clearing the nature of trademark rights,which mainly includes the infringement object and specific content;and then,analyze the role of " Likelihood of Confusion " in identifying the trademark infringement behavior by investigating the relationship between the"Likelihood of Confusion"and the infringement object;in the end,analyze the status of "Likelihood of Confusion"in identifying the trademark infringement behavior by discussing the relationship between the"Likelihood of Confusion"and the infringement consequence.According to the above ideas,the first section of this chapter firstly points out the existing argument and confusion of "Likelihood ofConfusion"in the field of trademark infringement,which includes that the different opinions on the status of "Likelihood of Confusion"in identifying the trademark infringement behavior and opposing opinion against using"Likelihood of Confusion"as the standard for identifying the trademark infringement behavior,to provide targets for the following theoretical study.The second section mainly discusses the infringement object of trademark infringement behavior.In order to figure out the nature of trademark rights,this section analyzes the transformation of trademark rights attribute and its basis from the perspective of history and legal philosophy,studies the dominative attribute of trademark right on this basis,and clarifies the particularity of dominative attribute of trademark right compared with the general dominance right.According to the point of view of this section,trademark right is a kind of private right,however,it also has social attribute,between them,the private attribute occupies a decisive position.The essence of trademark right protection is to protect the property right of trademark,as for the right type,this property right should be classified as dominance right.Compared with the general dominance right,the dominative attribute of trademark right is restricted in exercise and protection of the right.This restriction has closely connection with the social attribute of trademark right,which doesn‘t interfere with its dominative attribute,and the social attribute is the proper meaning of the dominative attribute of trademark right.Follow this topic,the third section continue to discuss the relationship between the"Likelihood of Confusion"and the infringement object of trademark infringement behavior.By analyzing the consequences caused by infringement trademark rights behavior one by one,this section clarifies the role and status of "Likelihood of Confusion"in identifying the trademark infringement behavior.In this section,the author want to point out that the dominative attribute of trademark right manifests as the trademark owner‘s dominative power to the information of sources contained in specific trademark,which is the dominant in the protection of trademark right and constitute the basis of running the relief mechanism of trademark right.The identification of the trademark infringement behavior must be finally based on the infringement of dominance right,and the"Likelihood of Confusion"constitute the identification gist and manifestation pattern of the infringement of dominance right;meanwhile,ensuring the consumers from confusion is beneficial for keeping the corresponding relationship between trademarks and goods or trademarks and providers from damage,so that it can provide protection for trademark owner's dominative power,which constitute the inevitable result and necessary measures of protection for the dominance right of trademark.Through the discussion above,the existing argument and confusion of "Likelihood of Confusion"in the field of trademark infringement which is pointed at beginning of this chapter can easily be answered,the fourth section take this responsibility and confirm the importance of"Likelihood of Confusion"in identifying the trademark infringement behavior by discussing and answering the following questions: the relationship between "Likelihood of Confusion"and proximity of trademarks or similarity of products,the role of "Likelihood of Confusion"in identifying the trademark infringement behavior with different proximity degree of trademarks or similarity degree of products,and the relationship between"Likelihood of Confusion"and anti-dilution protection of well-known trademark.The first three chapters discuss and analyze the"Likelihood of Confusion"in the field of trademark infringement from several aspects,which can answer the question that what is "Likelihood of Confusion?,however,this is just one aspect of the problem that this thesis want to solve,the method of evaluating whether the?Likelihood of Confusion"exist has not been involved.The fourth and fifth chapter will analyze and clarify the identification of"Likelihood of Confusion",which include two steps.The first step is clarifying the applicable situations of "Likelihood of Confusion"in the field of trademark infringement which is solved in the fourth chapter,while the second step is clarifying the consideration factors of "Likelihood of Confusion" which is solved in the fifth chapter.The former will answer the question that whether and when "Likelihood of Confusion"should be investigated in identifying the trademark infringement behavior,the latter will answerhow to judge the "Likelihood of Confusion".For the first step,the fourth chapter firstly points out the premise of investigating the ?Likelihood of Confusion" from the two aspects of alleged infringing trademark logoand the behavior of the alleged infringing party.Besides that,in order to implement the comprehensiveness of research angle,this chapter also analyze the role of "Likelihood of Confusion"in identifying the trademark infringement behavior from the opposite direction.Based on the study purpose of this thesis,the trademark infringement defense is divided into two parts according to the different sources of defense causes in this chapter,one is called trademark right severability defense,the other is called legitimate use defense.Specifically speaking,the former includes the defense caused by invalid registered trademark from the very beginning and the defense caused by canceled registered trademark which is not retroactive;the latter includes the reasonable use defense,the prior use defense,the right exhaustion defense,and legitimate source defense.Combined with the differences in condition and purpose of these defense causes,this chapter mainly analyzes the role of "Likelihood of Confusion"in identifying every defense cause,points that,as for the trademark right severability defense,either it is not need to identify the "Likelihood of Confusion",or it can be established as there is no"Likelihood of Confusion";and as for the legitimate use defense,prior use defense and legitimate source defense,it can be concluded that there is not necessity to investigate the "Likelihood of Confusion?;and it can be got the opposite conclusion in the right exhaustion defense.For the second step,The fifth chapter has analyzed and clarified the consideration factors and judgment methods of the"Likelihood of Confusion",on the basis of the existing consideration factors of the"Likelihood of Confusion"in other countries,the author makes a list and classification of consideration factors of the"Likelihood of Confusion"in China.This chapter classify the consideration factors of the"Likelihood of Confusion"as three kinds according to the three parties in the field of trademark infringement.The first kind is the factor from the alleged infringing party,it mainly reflects on the alleged infringing trademark logo and the behavior of the alleged infringing party,which includes the the proximity of the alleged infringing trademark and the registered trademark,the similarity of the product with alleged infringing trademark and the one with registered trademark,and intention of the alleged infringing party,and so on.As the behavior of alleged infringing party is the cause of starting the trademark infringement system,so this kind of factors should be firstly considered.The second kind is the factor from the trademark right holder party,it mainly reflects on the registered trademark,which includes the distinctiveness and the fame of the registered trademark,and so on.As the registered trademark is the basis of starting the trademark infringement system,so this kind of factors constitute the necessary factors of evaluating the"Likelihood of Confusion".The third kind is the factor from consumer party,which includes the ability of cognizance and degree of attention,and so on.As the consumer is the main body to cognize and evaluate the trademark in the market,the"Likelihood of Confusion"should be evaluated from the view of consumer,so this kind of factor is the line which will run through the evaluating of the"Likelihood of Confusion?.On the basis of this classification,this chapter makes analysis and explanation for all the factors one by one,in order to ensure the practical significance and operability of the whole thesis.