The Research On Judgment Of The Likelihood Of Confusion In Trademark Law

The likelihood of confusion runs through all stages of the operation of the Trademark Law,which is not only an important review criterion for trademark applications but also the basic criterion for trademark infringement.It plays a fundamental role in the operation of the Trademark Law.In addition,the judgment of the likelihood of confusion affects the degree of trademark protection and the realization of trademark rights,which is one of the important issues of the Trademark Law.Due to the difference between the legal system and the historical tradition,there are differences in the judgments of different countries and regions on the likelihood of confusion.However,there are still many similarities in their law of judgment.Compared with our country,the judgment the likelihood of confusion in United States and the EU are more mature.The United States adopted the multifactorial test,which concluded after considering a number of factors that might lead to confusion.The EU adopts the overall evaluation method,which is divided into two steps: similarity judgment and likelihood of confusion judgment.Only to meet the minimum degree of similarity under the premise of the possibility of confusion into the judge.In order to gain a deeper understanding of the problems in practice,this article selected 200 cases of trademark infringement of confusion for analysis and statistics.Through data analysis and sorting,the author finds that the courts mainly consider the following factors in judging the likelihood of confusion: trademark factors,commodity factors,the popularity of trademarks,the distinctiveness of trademarks and the degree of public attention.In individual cases,the court also considers the defendant's intent and the actual confusion of evidence.Through the analysis of the overall data and specific cases,the author found that there are two problems in judging methods and judging factors in the possibility of confusion in China.On the one hand,the logic of confusing possibility judgments is confusing.On the other hand,the method of judging the possibility of confusion is too simple.The factors considered by the court are inconsistent and the quantity is too few.The judgment of specific factors is also too simple.In order to solve the problems above,this article gains the experiences from the judgment methods of the European Union and the United States.Specifically,the likelihood of confusion should be divided into two parts: similarity judgment and confusion possibility judgment.Before judging the possibility of confusion,each factor in the likelihood of confusion should be classified.This paper classifies it into causality factors,supporting factors,and other factors.In specific judgments,the court should first determine whether there is a minimum degree of confusion,which is analyzing the necessary factors.Next,in the case where the minimum degree of similarity is satisfied,it is determined whether or not there is a possibility of confusion in combination with other factors,thereby judging whether or not it constitutes infringement.