On The Affection Of Trademark Reputation In Determining The Similarity Of Trademarks

Trademark reputation has its own value for the issue of determining the similarity of trademarks,but current judicial practice and theoretical research lack sufficient attention to it.Based on the current Trademark Law and the basic theories of trademark law,this paper attempts to solve the problem of inconsistent and unreasonable treatment of trademark reputation factors by the court and the Trademark Review and Adjudication Board(TRAB)in the current administrative cases of trademark authorization and confirmation.This paper adopts the empirical analysis method,comparative analysis method,and interdisciplinary research method to write.In addition to the analysis of the substantive law,it also puts forward suggestions on specific issues in the procedural law.The full text consists of three parts: the introduction,the text,and the conclusion.The introductory part firstly introduced the topic of the thesis.The background is that in the current judicial practice of trademark authorization and confirmation,the court and the TRAB have inconsistent and unreasonable problems in handling the trademark reputation factors when determining the similarity of trademarks,and the problem is not taken seriously;then,the provisions concerning how to determine the similarity of trademarks and its relationship with trademark reputation in the Trademark Law and related normative documents were clarified.It was pointed out from the normative point that trademark reputation should be taken into consideration when determining the similarity of trademarks.Finally,the topic of this paper is established on studying the affection of trademark reputation on similarity determining of trademarks from the perspective of the cases of trademark authorization and confirmation.In addition to the introduction and conclusions,the body of this paper consists of four chapters:Chapter 1 defines the specific scope of the trademark authorization and confirmation cases mentioned in this paper and the meaning of the similar trademark.In addition to various types of lawsuits stipulated in the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Authorization and Confirmation of Trademark Licensing,the relevant trademark review cases are incorporated as well by this paper.This paper thinks that the trademark similarity in the sense of Trademark Law is a subjective similarity of a trademark based on the objective similarity of the trademark,and the ultimate criterion for its determination lies in whether it is easy to cause confusion and misrecognition by the relevant public.The objective similarity of a trademark is a factual judgment,and the subjective similarity of a trademark is a legal judgment.What this paper wants to study is how the trademark reputation affects the determination of subjective similarity of the trademark.Chapter 2 points out the essence and the value of trademark reputation.This paper argues that the level of trademark reputation is a reflection of the close relationship between the trademark and the source of the goods,and it is of great significance to determine whether the trademarks are easily confused.Then,through case studies,this paper summarizes and analyzes several representative views on the relationship between trademark reputation and the determining of similar trademarks in current judicial practice,that the solution to this problem needs to return to the basic theory of trademark law.Chapter 3 combined with the confusion theory to point out that the subjective similarity of a trademark is based on the possibility of confusion.The judgment of the possibility of confusion is the key issue.This paper believes that,in addition to the traditional positive confusion,reverse confusion is also a problem that needs to be considered when determining a trademark in trademark authorization and confirmation cases.Then,this paper analyzes the rationality of including the possibility of confusion into the trademark similarity and responds to the objections.Finally,from the perspective of cognitive psychology,this paper analyzes and discusses how recognition of trademark influences the occurrence of confusion and thus influences the subjective similarity of trademarks.On the basis of the contents of the first three chapters,chapter 4 makes specific considerations on the issue of the reputation of a trademark that affects the determining of similarity of trademarks.This paper thinks that in the cases of trademark authorization and confirmation,both the TRAB and the court need to consider the reputation of the trademark,and the reputation of the competing trademark and the cited trademark must all be considered.In view of the fact that the trademark reputation should not be taken into account in the procedure of trademark refusal review,this paper made a special response and made specific recommendations on the issue of the burden of proof of the reputation of the cited trademark in such cases.Finally,or the issue of how to determine the similarity of trademarks according to the trademark reputation in cases of trademark refusal review and non-registration review(first category)and trademark invalidation cases(second category),this paper presents specific rules for the determination of two types of cases in a type-based manner.At the same time,it analyzes the related issues such as the time limit and standards of the recognition of the trademark reputation.