The Theory Of Trademark Confusion

Identifying the Source is the basic function of trademark, which is the starting point and the basic for the legislation and enforcement on marks, meanwhile, which has the direct relationship with the definition and identification of trademark rights. The trademark representation seems to be a trademark symbol, but it is not only in contact with the goods, but also in contact with the operators in some cases. Therefore, we should prohibit the use of the contact with the symbol and the goods or the symbols and the operators, and the consumers'awareness of this contact, the attention which is paid by associating with the goods of others confuses the source of goods, which should be prohibited. Confusion is the important element of the trademark infringement or the important function of the determination of its infringement, which is sufficient to cause the misconception of the source of goods by the relevant public, including goods which have the same source, or one possibility that there may be a definite relationship among the producers of goods. With the development of economy, many forms of confusion type appear, such as initial interest confusion and after-sale confusion and so on. One probability criterion is adopted to identify the confusion, which is probability. In the identification methods, there are three main methods, which are the actual confusion, the social investigation and the judicial discretion. During the identification of confusion, elements should be considered comprehensively such as the distinctiveness of trademarks, the brand logo, the approximation of commodity services, the level of the relevant public's experience and the degree of their attention in order to make the judgment comprehensive, particular and specific. Our legislation is not perfect so that confusion has not been incorporated into the requirements of the trademark infringement. There are several defects in the existing identification criterion. Trademark confusion should be incorporated into the scope of legislation as a judgment standard of trademark infringement according to the theory of confusion, to create the binary protection system according to the theory of exclusive right to use a trademark.