Judicial Judge On Misidentification In Trademark Infringement

To judge trademark infringement is to judge misidentification. Misidentification judgment in China's Trademark Law involves two aspects, namely identicalness or similarity of trademark identifications and identicalness or similarity of goods. Whether misidentification is constituted further involves the misidentification subject and the object of misidentification. The misidentification subject is the relevant public, while whether the relevant public makes misidentification needs to be judged by their general understanding. The main influential indicator of the object of misidentification is trademark notability. Trademark logo identicalness or similarity, goods identicalness or similarity, the scope of the relevant public and determination of their general understanding and the judgment of trademark notability all need to be made by the judge on its own judgment. But, the judge's judgment is realized through the perspective of virtualizing "the relevant public". Therefore, it should be undertaken according to certain rules. Such rules should comply with the process of human cognition. Moreover, judgment on misidentification should be eventually made based on an understanding of trademarks'nature, with reference to rational judgment criteria and with the selection of rational explanation path and rules. Comparison of trademarks should meet the requirement of overall similarity. Meanwhile, comparing trademark notabilities is also of important significance. Identicalness or similarity of trademark identifications does not necessarily cause misidentification and then the judgment of trademark infringement. Only when the conditions that trademark identifications are identical or similar and that the goods upon which the trademark identifications are used are also identical or similar are both met can the misidentification between trademarks be determined and the fact of trademark infringement be established. There is much debate over the role in judging similar goods of The International Classification List of Trademark Registration-Use Goods and Services and The Similar Goods and Services Differentiation Table and over the true meaning of misidentification in the process of judging similar goods. The author holds that the Classification List and the Differentiation Table cannot serve as the basis for judging similar goods. As far as the judgment of goods identicalness or similarity is concerned, the scale of misidentification lies in "the particular association between goods". What this association stresses is association of use value rather than legal linkage, let alone confusion of place of origin.