Study On Judging Standards Of Trademark Infringementand Its Factors

Along with the rapid spread of the public mass media and the globalization ofknowledge-based economy, trademark, as the vital part of the intellectual propertyrights, is the product of the market economy development. Since its value asenterprise intangible assets is on a daily rise, there are increasingly more cases oftrademark infringement in China. Therefore, it is of great importance to definetrademark infringement in the right way so that exclusive right of a registeredtrademark and the public interest can be protected. The principle of Likelihood ofConfusion, a main criteria to determine trademark infringement in both the UnitedStates and Europe, has great value for the protection of trademark rights, which hasbeen recognized by theories and judicial practices of many countries. The TrademarkAct in China has been repeatedly amended to meet the needs of domestic development,and the principle of confusion likelihood has eventually been determined afteranalyzing the relationship between trademark infringement and trademark confusion.As to the judgment of trademark infringement, the standard has transferred fromsimilarity to confusion likelihood to gear to international standards, which has asignificant effect on the recognition of trademark infringement in the judicial practiceand on the standard use of trademark. However, it can not be ignored that thisprinciple has not been fundamentally determined in China. There are only statutoryprovisions of “Easy to Cause Confusion” to providing principle guidelines to thejudicial practice, and no categorization of trademark confusion and the factors todefine confusion likelihood. Hence, no unified standards can be followed in the trialof trademark infringement cases, which will certainly cause the miscarriage of justiceand go against the legal and reasonable protection of trademark rights. Both theTrademark Act (May1,2014) and the Trademark Law Implementing Regulations haveonly principle regulations on the issue and no concrete operation specification anddetailed rules. How to define the Likelihood of Confusion is not only a key point butalso a difficulty, and need our continuous efforts to do new explorations based on theadvanced foreign theories. Therefore, legal provisions on the recognition of trademarkinfringement should be strengthened and detailed based on the fundamental status ofconfusion likelihood. The factors to define the confusion likelihood and thecategorization system of trademark confusion should be determined to avoid detachment of legislation and judicature and to preferably protect the legal rights andinterests of trademark owners, especially the approximation of trademark, thesimilarity of goods and services, the character of trademark, the attention degree ofrelated public, the attention of defendant and the actual confusion facts. What’s moreimportant is the guidance of legislation to promote the long-run economicdevelopment in China.