An Analysis Of The Confusion Theory In The Determination Of Trademark Infringement

With the rapid spread of the public mass media and the globalization of knowledge economy, the value of the trademark is growing with each passing day. As an intangible asset of the enterprise, the trademark will undoubtedly become the most favorable means of competition. As a special symbol of distinction and recognition, the trademark is not only a dispensable mark. How to protect it rationally is related with the existence and development of an enterprise even a nation in a highly competitive world. Nowadays, cases of trademark infringement in China is emerging one after another, the forms of which are from the direct and simple imitation to the concealed complex one, therefore, it is particularly necessary to define the trademark infringement.As the most essential function of the trademark, distinctiveness is the foundation for the function of merchandise choosing guidance, product quality guarantee and credit of recognition, and is also fundamental to a mark to be protected by the trademark law. The existence of likelihood of confusion separates the relationship between the trademark and the merchandise or service, and leads to the source mistake or misidentification of relationships when the related public are purchasing merchandise or choosing service. Thus the basic distinctiveness function of trademark can be destroyed. Therefore, the standard of likelihood of confusion is always the basic standard to cognize the trademark infringement, this has been recognized by the theory and practice of lots of countries. Nowadays, as the economy develops and the trademark infringement complicates with each passing day, the regulation of China's trademark law, though easy to operate, has been unable to meet the requirements of the trademark protection. Therefore, this article takes the perspective of the likelihood of confusion to analyze the regulation of our trademark law on the basis of introduction of the related theory and practice, and explores the possibility of the return to the standard of likelihood of confusion. The article is divided into three chapters:Chapter one expounds the essential theory of trademark and trademark infringement, discusses respectively the substance and functions of the trademark,the content and scope of the trademark infringement, on the basis of which proposes that likelihood of confusion is always the basic standard of trademark infringement. And then, the article further analyzes the role of the likelihood of confusion standard in the cognizance of the trademark infringement cases and the expansion of the theory of confusion.Chapter two introduces respectively the regulations of the trademark infringement in the United States and Europe, and makes related comparison between the two. Then, the article discusses the elements which can be used in the determination of the existence of the likelihood of confusion, such as: how to identify the identical and similar marks,improper intent,the actual confusion and so on. Chapter three analyzes the deficiency of China's trademark legislation, that is, on the one hand, there is no likelihood of confusion standard in the protection of China's general trademark which has brought challenges to the judicial practice; on the other hand, the standard in China of determining infringement against well-known trademark is based on confusion theory, of which the protection level seems not high enough considering the specialties of well-known trademark. Then the article proposes make definite provision about the status and significance of the likelihood of confusion standard in the trademark law to regular the protection of the general trademark and protects the well-known trademark combined with the association theory.