The Case Study On Presumed Likelihood Of Confusion In Trademark Law

The TRIPS Agreement Article16.1"In case of the use of an identical sign for identical goods or services, a likelihood of confusion must be presumed ". Abbreviated as "presumption of likelihood of confusion" clause, the meaning of this provision is in dispute, one idea:"This presumption does not allow the defendant to provide evidence to negate." the other idea:"In case of the use of an identical sign for identical goods or services, a likelihood of confusion just be presumed does not necessarily lead to confusion,this presumption does allow the defendant to provide evidence to negate." The paper agrees with the second idea, Because it meets the principle of promoting international trade. Understanding the meaning of the TRIPS Agreement Article16.1is useful for amending the "Chinese Trademark Law ".Some cases show that there is much controversy about the application of "China Trademark Law "Article52(a)."The paper suggests that "China Trademark Law" Article52(a) can been amended as "the owner of a registered trademark must be granted the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. If there is overlap between two markets,in case of the use of an identical sign for identical goods or services, a likelihood of confusion must be presumed". Induceing"If there is overlap between two markets"is in order to make legal presumption more accurate.