Research On The Criteria Of Determining The Similarity Of Goods In The Perspective Of Commodity Association

The similarity of goods is an important concept of trademark law. It’s the basis concept in trademark application and infringement proceedings. Similarity of goods refers that two goods are the same in terms of function, use, production department, sales channels, consumer objects, etc., or the relevant public is generally believed that there is a specific association between the two goods, or the relevant public maybe confused about the two goods. It’s the definition in the judicial interpretation in 2002, and there’s no provision in trademark law and implementing regulations. In the practice field, the determining of similarity of goods attracted the attention of authorities and the courts, and caused a great controversy about the criteria of determining the similarity of goods. In many cases, the criteria of determining the similarity of goods used by the trademark office and court are not unified, so in different programs, different court decisions in similarity results were identified as different.On understanding of the concept, there is no explicit explanation in dealing with question the "presence of a specific association", as a result there’s three questions in understanding the concept of “specific association”. The first problem is how to qualitative the “specific association”. The second problem is how to quantitative the “specific association”, meanwhile what issues need to be considered when determining the association and what extent of the association can be regarded as similar goods. The last question is how to understand the “specific association” and confusion. This thesis started from the perspective of commodity association, through empirical research domestic case and studies on foreign legislation and jurisprudence, aiming to note the existing problems of criteria of determining the similarity of goods, and put forward the suggestions on improvement of criteria application of determining the similarity of goods and the judicial practice.There are three chapters in the text.Chapter I made a study through empirical analysis of China’s judicial practice in similar commodities and the association factor, and further proposed the problems about association factor in the judgment of similar goods. The thesis made a research on 20 cases related to the determining of similar goods, and summed up problems that the criteria are not unified, and inadequate reasoning problem, and the different understanding of the specific association issues. Specific association between the goods cannot be simply summarized as related merchandise. Related merchandise is a concept on the American trademark law. Specific association between commodities should be considered as one of the factors that determine the similar goods. Whether there is a specific association should be comprehensive consideration of objective factors, trademark intensity measured between commodities.Chapter II uses the method of comparative analysis to study the German law and American law. This chapter analyzed the US Related merchandise regime and related legislative provisions and principles of the economics. US Related merchandise regime and confusion is relatively mature and complete. Chinese trademark law can learn from its associated merchandise of similar goods to determine the relevance of merchandise e China’s current trademark law and similar commodity system learn more from civil law system, and therefore there’s also some study of German law, studies of similar goods made by Canon trademark case represented the existing German law issues.Chapter III mainly presented the suggestions and recommendations on the criteria of determining the similarity of goods. The main contents include further analysis of criteria of determining the similarity of goods in the aspect of objectivity criteria, the specific factors determining the association, the confusion caused by the specific association. The thesis suggested the conception of similar good can be modified by explaining the specific association, as goods are same in terms of function, use, production department, sales channels, consumer objects, or there is a specific association between the commodity is likely to cause consumers confused about the source or the presence of the license, sponsorship, business cooperation and other contact of its producers or sellers. Furthermore, in the judicial practice, the trademark examination authorities shall determine the similarity of goods under different criteria in different programs with reasonable explain about the criteria of determining the similarity of goods.