Linguistic Analysis On The Judge Of Word Trademarks’ Similarity

Trademark is the name of the commodity or service, distinguishing one from another directly. However, in social life, the use of similar trademark damage this distinguishing function. The dispute caused by similar trademark is very common in judicial practice, including not only civil litigation, but also large numbers of administrative litigation. And the affirmation of similarity of trademark’s character becomes the key point in resolving such disputes, especially for the word trademark. Therefore, the study of the court’s judge and analysis their existing problems will give us a full view of the trademark affirmation and promote this field to make a change to perfect this affirmation system.This paper has five parts:The first part introduces the back ground that similar trademark appear frequently in social life, disturbing the normal social production and living and introduces the background of legislation of similarity trademark. It also sorts out the advanced research methods in phonetics, semantics and morphology abroad, and summarizes that inland study on trademark similarity is only stays in the type naming, lacking in-depth analysis of the reasons and summarization of the system method. This article uses statistical inductive analysis, comparative analysis, empirical analysis, interdisciplinary research methods, studying similar trademark cases tried by Beijing First Intermediate People’s Court form2010to2012, with the hope to improve the trademark law legislation and normalize the affirmation methods in practice.The second part introduces the laws and regulation concerning trademarks in our country, and then elaborates the word mark similarity. After that it introduces provisions on trademarks in the U.S. and European countries to make contrast with China, hoping to absorb their advantage of clear criteria in affirmation.The third part summarize the common situation of word mark similarity and the judge of the court in cases. And then three issues in these cases are raised:lack of similarity analysis, definition of the mark only depending on the dictionary, and the doubt about the judge. The causes of these issues are concluded as the vague expression of the law, lack of operational methods and the nonstandard written judgments.The fourth part summarizes the methods to judge word mark similarity in system. In terms of pronunciation, if two marks have the same pronunciation, they should be regarded as similar. If two marks sound alike, their similarity should also consider their meaning and morphology. In terms of morphology, the judge should start from contrasting the difference, weighing its impact, and then make conclusion whether they are similar or not. In terms of meaning, the explanation of a mark should come from various materials, and the judge should consider whether the difference between marks make them associated. Finally, the judge should consider the pronunciation, the morphology, the meaning in a whole to make the judgment.The last part offers some suggestions. More clear laws and regulation in legislation, improving the judicial criteria and referring to linguistics expert advice will greatly promote the trademark similarity judgement.