Research On The Judgment And Attribution Of The Obligation Of The Trademark Infringement

The definition of the trademark infringement is the starting point of the research of the civil liability for tort. This paper first defines the meaning of the infringement of trademark, and then differentiates traditional trademark infringement and new trademark infringement. In protecting the trademark right, the trademark right should be limited. The exception of the trademark infringement includes reasonable uses, prior rights and parallel imports of trademark.Out of the kinds of tortuous acts, the paper analyses the current popularity of hot new trademark violations about the well-known trademark infringement, net trademark infringement, dilute infringement, stealth fake reverse infringement. The well-known trademark is a special form and its tort and relief are special and representative. The dilute infringement of trademark is the infringement of the well-known trade mark, and its theory is legend theory and dilution theory. The net development makes it a new problem to protect the trademark. In protect the trademark in the net, pay attention to the protection of the interests of domain name holders, and balance both interests of the trademarks and domain names in the conflict. The stealth fake reverse infringement is another new trademark infringement and should be included in the scope of China's "Trademark Law".The constitute elements of trademark violations are delict, damage and the causal relation between delict and damage. Fault is not the constitute elements of the trademark infringement. In defining the trademark infringement, analyse the constitute elements and pay attention to the judgment of confusion and dilute .In accordance with the confusion theory, the judgment standards of the trade mark infringement mainly involve three aspects: the judgment of the same or similar goods or services, the judgment of the same or similar marks and the judgment of the confusion or possible confusion. In accordance with the legend theory, the judgment of the new trade mark infringement should be based on the legendary theory and from the functions of the protection of the trademark.Differences exist in adopting liability principles for the trademark infringement. The reasons for the differences are that although our country is largely influenced by the continental law system, we don't distinguish the right to claim for real right and the right for the obligatory right and they should be included in the civil liability of the General Principles of Civil Law. Because of the different understanding of TRIPS and the complexity, variability of the trademark infringement, differences for the liability principle are resulted. Specifically, when the holder of the trademark right asks the actor to stop violations, the faultless liability should be applied with the exception of fault principle. When the actor is asked to compensate for the losses, fault principle should be used completely.