Confusion In Trademark Infringement In A Judicial Determination

As the radical function of trademark, distinctiveness oftrademark is the foundation for the function of merchandise choosing.guidance, product quality guarantee and credit standing commend, andis also the basic matter why it is protected by law of trademark.The existence of likelihood of confusion leads origin or relationshipmistake when related public purchasing merchandise or choosingservice. Thus the basic function of trademark related merchandiseor service origin can be destroyed. Therefore, the standard oflikelihood of confusion is always the basic standard of cognizanceof infringement trademark.For one thing, there is no regulation present for influencefactors of likelihood of confusion actual confusion, for example,actual confusion, attention of related public and so on. For another,more scholars ignore the determinant of similar mark, similar goodsor services, which made the standard of likelihood of confusion cannot perform its function in infringement cases. As a result, thispaper focuses on the likelihood of confusion and there are threeparts.Part one introduces the definition, intension and effectivenessscope of trademark rights. Trademark is the discriminative symbolof a certain merchandise or service to other goods or servicesproduced or provided by others in the usage of this merchandise orservice. From the intension of trademark, it is the basic reason ofa sign to be protected by trademark law as a trademark that a signhas recognition. From the rights region of trademark effectiveness,especially from the negative effectiveness region of trademark usage,the damage of the recognition of trademark is the basic standard ofa usage on whether it is infringement. According to Chinese trademarklaw and related judicatory explain, confusion possibility standardis always the basic standard of trademark infringement cognizance whether it is of the cognizance of traditional infringement such asproducing and selling infringement or it is of newly infringementsuch as merchandise packaging infringement, enterprise brands anddomain name infringement; whether it is of non-famous trademarkcategory protection or it is of the famous trademark cross categoryprotection.Part two introduces that confusionof trademark infringementmeans the possibility of confusion, not the non-actual confusion.In judicatory practice, actual confusion can be seen as the availproof of confusion possibility and furthermore, the proof ofinfringement acts. But it is not the necessary condition of trademarkinfringement and can not fill in the standard of confusionpossibility and become the basic standard of infringement cognizance.With the development of social economy, infringement acts arebecoming diversified and complex. To protect the basic situation ofconfusion theory in trademark infringement and widen the apply regionof confusion possibility standard in trademark infringement, thedefinition of confusion shows itself the trend of direct confusionto indirect confusion, in-sale confusion to pre-sale confusion andpost-sale confusion, positive confusion to reverse confusion.Because most trademark infringement are passing off or imitation,there is a misleading place in practice to substitute confusionpossibility standard with same and similar standard. Through thecomparison of actual confusion and confusion possibility, confusionpossibility and same and similar standard, the author distinguish"same and similar" from both subjective side and objective sideand hold that the relationship between "same and similar" andconfusion possibility depends on whether the former belongs tosubjective side (that is, the infringement meaning "same andsimilar") or objective side. To the objective side's "same andsimilar", it is the main factor to determine the existence ofconfusion possibility, that is, deduce the possibility of confusion among related public made by the accused sign user according to thesimilarity of accused sign and registered trademark and thesimilarity of merchandise and service referred by the accused signand merchandise and service used by the registered trademark. As tothe infringement meaning "same and similar", it can be cognizanceby the possibility of confusion. Although the trademark, merchandiseand service do not belong to the same or approximate categoryaccording to the objective factors, it can still cognizance the sameand similarity in infringement meaning made by this trademark,merchandise and service. Thus the author distinguishes therelationship among the above definitions and affirms the confusionpossibility as the basic standard to cognizance trademarkinfringement.Part three introduces that though there is boundary in Chinesetrademark law and related judicatory explain for definitions ofconfusion possibility and there is further judgment principle todetermine same or similar trademark, and also, the reference effectof two lists on merchandise or service judgment or similar problem,the confusion possibility judgment can not perform its functionduring the process of judgment because there is no regulation of otherfactors may affect confusion possibility, for example, theattentiveness of general public, actual confusion, thesubjectiveness of the accused sign users. Therefore, besidesanalysis the judgment of trademark same or similarity, merchandiseor service same or similarity in trademark infringement cognizance,this paper also induce other factors which affect confusionpossibility exisistence with the combination of scholar literatureand related cases judgment conclusion inland and abroad. Furthermore,the author worked out some opinion about how to test the cognizanceof the confusion possibility of the. above factors in trademarkinfringement law suit.