Similar Trademark Judgment In Trademark Infringement

With the process of the economic globalization, Trademark displays more and more important role. It is not only identification of goods or services, but also as recognition of goodwill. At the same time, the infringement acts of trademark, especially using a trademark that is identical with or similar to a registered trademark in respect of the same or similar goods without the authorization of the proprietor of the registered trademark, increase rapidly. They not only do harm to the legitimate interests of trademark rights, disrupt the market order of fair competition, but also deceive the consumers. Therefore, it is important to crack down such trademark infringements, protecting legitimate trademark rights. The Fifty-first article of Trademark Law clearly states:Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:(1)to use a trademark that is identical with or similar to a registered trademark in respect of the same or similar goods without the authorization of the proprietor of the registered trademark.…However, there are many problems in infringement cognizance, such as the fuzzy notion of "similar","analogue" and so on, which are difficult to definite. So in this paper, I do the special research on the "Similar Trademark" in infringement cognizance from the theory to practice. Five parts are divided:The first part, "an overview of Similar Trademark":this part includes the concept and three major forms of Similar Trademark, and after analyzing current rules of our country, this part discusses their limitations:it just provides a principled guidance, which is too general and broad, failing to identify detailed standards of conduct; at the same time, there is "fuzzy zone" in our law, such as "approximate" and "similar", as a result of which, judicial practice can not form a unified criteria.The second part, "a guiding principle of judging Similar Trademark, the likelihood of confusion principle":this part studies the concept, content and importance of the likelihood of confusion principle, and the relation between this principle and Similar Trademark. On this basis, this paper suggests that we should clearly establish the principle in the Fifty-first article of Trademark Law, such as:Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:(1) to use a trademark that is identical with or similar to a registered trademark in respect of the same or similar goods or service without the authorization of the proprietor of the registered trademark, which may lead to relevant public confusion, this confusion is not only the source or origin of goods confusion, but also a confused link between the two trademarks, such as investor relations, licensing relationships, partnerships and other relationships;……The third part, "a premise theory of judging Similar Trademark":when we try to judge whether two trademarks are similar, we need to consider the elements of Trademark; at the same time, the distinctive character of Trademark is also necessary on the basis that the basic function of Trademark is identifying. So, there are two contents discussed here, one is the elements of Trademark, the other is distinctive character of Trademark. Analyzing their effects to the judgment of Similar Trademark, this part provides several suggestions to improve the level of cognizance.The forth part, "the judgment of Similar Trademark under the likelihood of confusion principle":contrasting the different rules of China and foreign countries, this part discusses the particular principles and methods of Similar Trademark judgment, the improvements to our current law and so on.The last part, "the context of judging Similar Trademark":considering that the carrier of Trademark (goods or services) will influence our judgment, this part discusses how to judge same goods and services, analogous goods and services, and the analogy between goods and services.