Research On The Elements And Judgment Criteria Of Relevance Of Similar Goods In Trademark Law Of China

The concept of “similar goods” plays an essential role in the trademark law system of China,as this concept is not only one of the criteria for trademark licensing,but in addition to that it helps to determine whether there is trademark infringement.Notwithstanding the foregoing importance,the current legal provisions of similar goods,especially in terms of relevance of similar goods are ambiguous,leading to a lot of problems in judicial practice when deciding the relevance of similar goods.This article,through mainly exploiting the methods of empirical research and comparative analysis and taking relevance of similar goods as the entry point,carries out qualitative and quantitative analysis on relevance of similar goods,so as to provide more comprehensive elements and standard to determine the relevance of similar goods.The entire article is divided into 3 parts,namely the introduction,the main body and the conclusion.Moreover,the main body is further divided into 4 chapters.The first chapter aims to present a macroscopic view of the current legal framework in China,particularly in relation to legal provisions governing relevance of similar goods.By analyzing the relevant laws and regulations,the paper seeks to reveal the existing legislative conflicts and loopholes,such as the inconsistency about the judgment criteria of relevance of similar goods between the Opinions issued by Supreme People's Court and the Standards for Trademark Examination and Adjudication implemented by the State Administration for Industry and Commerce(“SAIC”).Furthermore this essay by reviewing 60 trademark administrative cases,elaborates the dissonance between the gauges of the Trademark Review and Adjudication Board of SAIC and those of the judiciary institutions,and discrepancies of the gauges among different judiciary institutions themselves.The paper identifies three major problems of judicial practice: how to determine the existence of relevance between goods of same types but from different groups and between goods of different types;whether the reputation and significance of a trademark should be included in the judgment criteria of relevance of similar goods;the logical relationship between relevance and the likelihood of confusion.The second chapter,through inducing and summarizing previous case laws,redefines the meaning of relevance of similar goods in China and illustrates nine situations where goods are considered to be relevant in judicial practice.Secondly,from the status quo of relevance of similar goods and trademark reputation and significance in China,this article identifies the mainstream trend of judging relevance of similar goods in China.If a trademark has a relatively higher reputation or stronger significance,the judiciary will properly relax the judgment criteria of relevance of similar goods.Nevertheless trademark administrative authorities are still in doubt whether subjective criteria should be applicable in these cases.In view of the controversy,this paper provides further elaboration on this issue by studying the relevant case laws of the European Union because its similar goods has the same status and role in the trademark law system as China.The third chapter begins from the legislative provisions and elaborates that Article 11 of judicial interpretation specifies not only the objective standard of the similar goods,but also the goods which having a certain connection and thus easily causing confusion.Nonetheless according to Article 57(2)of Trademark Law in China,similar goods is an element constituting the likelihood of confusion,thus this generates a logical paradox.In the current situation of judicial practice,judging relevance of similar goods is under the premise that whether the relevant public will have confusion or misunderstanding about the source or the producer of the goods.And then judging trademark infringement is because there is likelihood of confusion which is on the premise that the goods are similar goods or have relevance.Therefore the logical paradox exists both in legislation and judicial practice of China.Additionally this essay examines the relevant legislation and judicial practice in the United States and the European Union on relevance of similar goods and the likelihood of confusion,and explores the logic of relevance of similar goods and the likelihood of confusion in the United States and the European Union.The paper then comes to the conclusion that the United States and the European Union,as well as China have fallen into the same logical paradox when dealing with the aforementioned matters.The fourth chapter considers that it is reasonable to include the reputation and significance of trademark in the judgment criteria when combining with the actual situation of China.For the logical paradox of relevance and the likelihood of confusion,when two commodities are categorised into the nine situations of relevance stated in this paper,they can be directly identified to be relevant,regardless of the likelihood of confusion.If the commodities have yet to establish the aforesaid nine relationships,when taking factors like the reputation and significance of trademark into account,the practice of a trademark case “Mei Fu” could be made reference to.If the goods have relevance,the goods can be directly identified as similar goods.Then make sure that whether there is trademark infringement or whether the trademark should be registered according to the relevant regulations of Trademark Law and do not use the confusion or misunderstanding about the source or the producer of the goods to arrive at a conclusion that the goods have relevance.In practice,the judiciary institutions can use the above two methods,and the legislature should avoid the use of “confusion” in the relevant laws and regulations of similar goods or relevance of similar goods,so as to avoid the logical paradox.This paper ultimately reconstructs substantive connotation and judgment criteria provided by Article 11 and 12 of the judicial interpretation of Trademark Law.It is proposed that the commodities should be identified to be relevant when their relations are fallen into either of the following category:(1)goods having the relationship of matching and supporting use;(2)goods having the relationship as product and its component or one component and another component;(3)goods having the relationship as product and its raw material or product and its tool;(4)goods having the same function;(5)goods produced by same raw material;(6)goods having the relationship of superordination and subordination;(7)goods as daily beverages;(8)goods as daily clothing;(9)goods as substitutes of each other.When judging whether there is relevance between two commodities,it is also necessary to consider the significance and reputation of the trademark.