A Study On The Constitution Elements Of Typical Trademark Infringement

From the angle of trademark protection, the core concept of current China Trademark Law is trademark infringement. In judicial practice, the determination of trademark infringement bears much difficulty and it also attracts a lot of attention. Along with the economic development and the enhancement of legal awareness, the quantity of trademark litigation has been increasing. Hence, the judgement of trademark infringement is quite significant. This paper tries to review the constitution element of trademark infringement from the view of concrete application in judicial trial. Through summing-up and analysis of these elements, the author desires to evoke deep thoughts and extensive researches on the constitution elements of trademark infringement. Based on these thoughts and researches, valuable achievement for the reference of legislation can be obtained. Through this, China's legislation on trademark will be more practical, better and easier to be applied.This paper is divided into four parts. Via quoting an case in foreword, the author brings forward the issues in finding the trademark infringement. In part 1, the author defines the typical trademark infringement action. In part 2, the author discusses the Three Elements theory of typical trademark infringement constitution element. Then, this part analyses the judicial application of Three Element theory and summarizes the views of the author. In part 3, the author analyses the Four Element theory of typical trademark infringement constitution element. As the small difference between the first three elements of the four elements theory and three elements theory, this part focuses on the controversial centre, which is whether confusion theory should be taken as the foundation to determine the similarity of trademarks and commodities or as the constitution element to determine trademark infringement, of above two theories. Finally, the author expresses her own ideas. This part studies the foreign and domestic legislation and judicial application of confusion element, analyses the necessity of confusion functioning as the element of infringement finding. The author makes her own ideas as to this issue clear in this part. In part 4, the author summarizes the typical trademark infringement constitution elements and proposes relevant legislation and judicial advice.