The Theoretical Study On Trademark Infringement

With the continuous development of the globalization of knowledge economy, the value of the trademark as the intangible asset of the enterprise has been discovered and is being paid more and more attention. Also, the trademark is becoming the most favorable means of competition. Meanwhile, cases of trademark infringement in China are emerging one after another and the forms of infringement become diversified. Therefore, it is particularly necessary to define the trademark infringement.Distinctiveness is the basic function of the trademark. The relationship between the trademark and the registered merchandise or service will be separated if the distinctiveness is destroyed, which leads to the source mistake or misidentification of relationships when the related public are purchasing merchandise or choosing service. As a result, the standard of likelihood of confusion is always the basic standard to cognize the trademark infringement, which has been recognized by the theory and practice of lots of countries.As the function of trademark turns from distinctiveness to recognition and well-known trademarks and famous trademarks are emerging, the trademark is becoming an intangible asset containing great value. Meanwhile, some people carry out a variety of "free rider" on the well-known trademarks in order to seek improper interest, which causes the dilution of the well-known trademarks. In this context, the theory of trademark protection correspondingly turns from Confusion Theory which is designed to protect the public to Dilution Theory and Association Theory which are designed to protect the goodwill and intangible assets of the trademark owner.The article is divided into six chapters. Chapter one explains the basic theory of trademark and trademark infringement, including trademark and its functions, the definition of trademark infringement and its forms of expression. In this basis, the great significance of how to indentify trademark infringement is introduced.The following three chapters respectively introduce and analyze the main three theories existed in legislation field and judiciary field around the world. Chapter two focuses on the basic theory of Confusion Theory, the different classification of confusing and the identification of likelihood of confusion. The conclusion is that Confusion Theory will inevitably become the basic theory of trademark infringement. Chapter three illustrates the generation of Dilution Theory, components, and the identification of the possibility of dilution. The conclusion is that Dilution Theory is created to compensate for the limitations of Confusion Theory and Dilution Theory is very essential to protect well-known trademarks in the non-similar goods or services. Chapter four explains the production of Association Theory, the basic theory of Association Theory, the relationship between association and dilution, the relationship between association and confusion, and also the limitations of Association Theory.Chapter five focuses on the status of trademark infringement legislation in China, analyses the status based on the earlier three theories and gives some legislation advices correspondingly.