| Trademark is a mark that can be used for identifying and distinguishing thesource of the goods. The basic function of trademark is to identify the source of goods,ensuring that consumers can correctly distinguish the goods and the source of goods.Many countries have recognized the protection of the basic function of trademark asthe logical startingpoint of trademark legislation and the introduction of exclusiverights of trademark is to protect the basic function of trademark and prevent theconfusion of the relevant public. Trademark confusion has been prohibited byTrademark Law in many countries on the grounds that it can cause the confusion ofrelevant public and destruct the basic function of trademark.Trademark confusion first regulated in Lanham Act, characterized by forwardconfusion, the sale of confusion and the single source of confusion, with thedevelopment of social economic, it expands on time, content and directions, which isrecognized by many countries trademark legislation too. However, attitude of China’strademark law is not clear towards trademark confusion.The Article Fifty Two ofTrademark Law regard the behaviour of using a trademark that is identical with orsimilar to a registered trademark in respect of the same or similar goods without theauthorization of the proprietor of the registered trademark as trademark infringement,the theory of likelihood of confusion does not lie in the touchstone in thedetermination of trademark infringement. The Trademark Review Standard hasstipulated ascertainment on similar trademark, that is, only when using a trademarksimilar to a registered trademark in respect of the same or similar goods, which canresult in the confusion of the public, can it be regarded as the similar trademark. Inthis article, we can find the confusion, while confusion has not been situplatedsystematically. Fuzzy attitude to trademark confusion not only caused legislativedilemma, at the same time makes it difficult for judge to identify trademark confusioninfringement with a unified and formal standard while handling trademarkinfringement cases, also contributed to the confusion of trademark infringementjudicial dilemma. The theory of likelihood of confusion lies in the touchstone inthe determinationof trademark infringement. Many a few Papers concentrated on theoreticalintroduction and legislative suggestion on likelihood of confusion. The interpretationsto the First Subparagraph of Article Fifty Two of Trademark Law placea vital role inthe construction of trademark infringement of mainland China. The formulations ofthis paper backgrounds the Third Amendment of Trademark Law, with theinterpretations and judicial applications of the First Subparagraph of Article Fifty Twoof Trademark Law as the subject, and figures out the dual structure on determinationof trademark direct infringement. From the perspective of comparative study oftrademark direct infringement, the paper formulates a proposal on amendment ofArticle Fifty Two of Trademark Law.This paper consists of three parts.In the first chapter of trademark confusion as the center, focusing onsystematically discusses trademark confusion. This chapter firstly introduces the basicknowledge of traditional trademark confusion, confusion of the traditional trademarkorigins, concepts and types were introduced and analyzed simply, laying thegroundwork for the discussion of the development and expansion of trademarkconfusion. Secondly, from the direction, content, time of three aspects: the expansionof trademark confusion, further reveal and explain the types of confused in thecountries covered by the trademark of the trademark law. Secondly, from the direction,content, time of three aspects: the expansion of trademark confusion, further revealand explain the types of confused in the countries covered by the trademark of thetrademark law.The second chapter analyzes the confusion of trademark infringementcognizance standard. This chapter first to "OEM" the adjudication of the case as thebreakthrough point, through the "Nike" and "BOSS trademark infringement case"decision results were compared, analysis of root causes of two cases ". Secondly, thischapter by discussing the confusion of trademark infringement standard legislationpredicament and judicial predicament, cause confusion of trademark infringement isproposed there is a double standard as well as the legislative chaos caused a twoVI decision dispute. Finally, this chapter on the confusion of trademark infringementcriteria are analyzed, recognized trademark confusion in identifying the confusion oftrademark infringement of trademark confusion status, and analyses the standards, thestandards for the likelihood of confusion of trademark confusion rather than actualconfusion.The third chapter combined with the legislative framework of the trademark law,for our country trademark infringement standard to regression of likelihood ofconfusion. This chapter of China’s trademark legislation is the logical starting pointfor carding, pointed out that "similar trademark","commodity or service similar to"element position and law applicability. Secondly, the likelihood of confusion for thetype analysis, comparative study of China’s current trademark law provisions of themixed type, provide solutions and reference for the possibility of confusion type isused, the first chapter of confusion of consideration of possibilities, to providereference for the application of likelihood of confusion in the judicial practice of ourcountry.The purpose of this article is to solve the dilemma with trademark infringementlegislation in our country, to make standard confusion no longer exists in justice ofour country, The author uses the method of comparative analysis, empirical analysisand other methods of detail on the confusion theory, research on how to perfect thelegislation of our country with the trademark infringement, in order to better the basicfunction of trademark right trademark, maintaining market order, promoting economicdevelopment. |
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