Research On Likelihood Of Confusion In Trademark Infringement Determination

The inconsistence of judicial opinions on disputes of OEM across the country results from the defect of legislation and different judicial understandings on trademark direct infringement which belong to the problems of legal legislation and judicial interpretation. The theory of likelihood of confusion lies in the touchstone in the determination of trademark infringement. Many a few Papers concentrated on theoretical introduction and legislative suggestion on likelihood of confusion. The interpretations to the First Subparagraph of Article Fifty Two of Trademark Law place a vital role in the construction of trademark infringement of mainland China. The formulations of this paper backgrounds the Third Amendment of Trademark Law, with the interpretations and judicial applications of the First Subparagraph of Article Fifty Two of Trademark Law as the subject, and figures out the dual structure on determination of trademark direct infringement. From the perspective of comparative study of trademark direct infringement, the paper formulates a proposal on amendment of Article Fifty Two of Trademark Law.This paper consists of three parts. The first one deliberates from judicial opinions on disputes of OEM and constructed from judicial interpretation and application of the First Subparagraph of Article Fifty Two of Trademark Law which together contribute to the formulation of the dual structure on determination of trademark infringement. This structure is so unique that no previous legislation can be found from perspective of comparative law. The Third Amendment of Trademark Law shall give response to it.The Amendment of Article Fifty Two of Trademark Law shall formulate from legislative provisions and judicial interpretations on determination of trademark infringement which may include legal requirements and judicial determination for trademark infringement. The second part of this paper focuses on the statute and application concerning likelihood of confusion in American law system, in which the legal requirements of trademark infringement and the components, the standard, multi-factors, application types of likelihood of confusion have been studied. The third part introduces the legal philosophy of dual structure of trademark direct infringement and then gives comments on the legal philosophy, logic and judicial application of this issue. The legislation of trademark direct infringement shall, through comparative study, deals with the relationship among the likelihood of confusion, the identical or similar trademarks, the identical or similar goods or services, and stipulates the legal requirements of trademark infringement, component, multi-factors, application types of likelihood of confusion in general provision and specific provision.