Reasearch On Determining The Similartiy Of Goods In The Areas Of Infrighement Of Trademark

The initial purpose of the trademark is to distinguish goods from differentsources. The trademark system is to prevent the registrant of that trademark from atrademark which is identical with or similar to the registered trademark is used on thesame kind of commodities or similar commodities. In accordance with the provisionsof the Trademark Law of China, the act using a trademark which is identical with orsimilar to the registered trademark on the same kind of commodities or similarcommodities without a license shall be an infringement upon the right to exclusiveuse of a registered trademark. Therefore, the similarity of commodities plays a greatpart in determining the infringement of trademark rights.According to the Trademark Law of China, Chapter one of this thesis states twoprinciples of how to determine the similarity of goods in an infringement. Firstly, thejudgment of similar goods is the affirmation of a legal fact. Secondly, the judgment ofsimilar goods shall be done case by case. In a case of specific application, the judgeshould identify the similarity of goods in terms of function, usage, productiondepartments, sale channels, consumers and so on. Thereinto, classification table ofcommodities and services serves as a reference in an infringement of the trademark.However, the identification of similar goods in the judicial practice still has someproblems. Chapter two illustrates the following problems. The use of above rules to identify the similarity of goods, sometimes, cannot access to the individual justice.Besides, how does the actual use of registered trademark act in determine similargoods? The judges don’t achieve a conclusion at this point. Chapter two alsodescribes the legal logic of the judgment of similar goods as well as the legal logic oftrademark infringement.Chapter three compares the legal logics of the recognition of trademarkinfringement and similar goods in China, USA and UN, then analyze three legallogics in terms of trademark law principles, the trademark features and legislativepurposes of trademark law. At the end of Chapter three, a suitable legal logic ofChina’s Trademark Law is given: learning from the practice of the European Union,trademark infringements can be divided into two kinds of behaviors: one is using anidentical trademark on the same kind of goods; the other is using a similar trademarkon similar goods.The last part of this thesis is an epilog. It gives a summary of the whole thesis.The determination of trademark infringement should use misidentification of averageconsumers’ normal cognitions as a principle. And the determination of similar goodsshould be based on the fact of each case, taking product features, uses, sale channelsand various factors into account.