Identification Standard For Same Or Similar Types Of Commodities Or Services

According to Trademark Law of PRC,a trademark registrant is entitled to attach his registered trademark on commodities or services listed in his trademark registration certificate.Meanwhile,the trademark registrant is entitled to exclude any other party from attaching a trademark similar to the registered trademark on the same type of commodities or services without licensing,or affixing a trademark identical or similar to the registered trademark on similar commodities or services which easily causes confusion.On one hand,regarding the trademark registration process,a trademark applicant shall choose certain types of commodities or goods and delimit boundary for exclusive trademark rights.On the other hand,regarding trademark infringement cases,a trademark registrant shall use prohibition right of trademark and prove the alleged infringer has attached the trademark identical or similar to the registered trademark to identical or similar commodities or services.Therefore,the determination regarding whether the disputed commodities or services constitutes identical or similar commodities or services runs through different stages of trademark protection,including the trademark rights' generation,maintenance,and termination.As a result,establishing identification standard for identical or similar commodities or services is of great importance.However,according to Chinese current judicial practices,the importance of establishing the standard is being overlooked.In contrast to comprehensive analysis on whether the disputed trademarks are identical or similar,the courts put little attention on analyzing whether the disputed commodities or services are identical or similar.Such approach results in inconsistency in courts' decisions and makes it difficult for trademark registrants or other parties to self-determine the boundary of his rights or behaviors.Therefore,this article attempts to address this dilemma.The first chapter presents Chinese current academic research results on identifying identical or similar commodities or services.This chapter mainly analyzes the function of Table for Differentiating Similar Goods and Services in trademark infringement area;the objective and subjective identifying standards in determining whether the commodities or services are identical and similar;the case-by-case analysis principle in determining the relationship between commodities or services.Meanwhile,this chapter lists the discrepancy in judicial practices regarding determination of commodities or services' relationship.Since the existing laws and regulations have no specific and clear guidance towards the determination of relationship between commodities or services,different levels of courts often reach different conclusions when facing the same set of facts.Meanwhile,trademark administrative authorities have different identifying standard comparing with that of trademark judicial authorities.The administrative authorities focus more on the efficiency and order of trademark administrative management and depend heavily on Table for Differentiating Similar Goods and Services.Whereas,the judicial authorities focus more on facts in individual cases and determine the relationship between commodities or services from the perspective of customers' likelihood of confusion,rather than depending on Table for Differentiating Similar Goods and Services.Because of using different standards,the discrepancy between trademark administrative authorities' decisions and judicial authorities' judgements is hard to reconcile.The second chapter points out that the core of determination of commodities or services' relationship is to determine whether they have competitive relationship.The competitive relationship means that one commodity can be substituted by another commodity to some extent,that will cause the relevant public to be confused of the source of the commodity.To determine whether the commodities are competitive,there are three major elements to be considered.First,to determine the scope of “relevant public.” Second,to distinguish the similarities and differences between the natural characteristics and legal characteristics of the commodities.Third,to determine the commodities' providers' business scope has what influence in determining the relationship between commodities.Meanwhile,addressing how a typical type of commodities,promotion commodities,is competitive to other commodities.The chapter three attempts to deliver suggestions on how to perfect the identifying standard for identical or similar commodities or services.First,since the relationship between different services is more complicated than that of commodities,a stricter standard shall be applied.Second,addressing the influence of trademark's popularity and significance in determining the relationship between commodities or services.The conclusion summaries the article and presents sincere wish for a more comprehensive and coherent identifying standard for identical or similar commodities or services.