Research On Consumer Questionnaire In Trademark Infringement Litigat Ion

With the rapid development of China's socialist market economy,trademark infringement lawsuits are increasing.In order to resolve disputes fairly and efficiently,the basis for the determination of trademark infringement is crucial.After the revision of China's Trademark Law in 2013,the standard of confusion for the determination of trademark infringement was established,that is,the trademark infringement was determined by whether the relevant consumer had the possibility of confusion about the trademark.Judging the possibility of confusion is a complex issue.The possibility of confusion in China's trademark infringement lawsuits is mainly judged by the traditional multi-factor detection method.This method of judgment mostly replaces the subjective knowledge of the general consumers with the personal subjective experience of the judges,and the identification of the possibility of confusion is not accurate.Therefore,the judicial practice of trademark infringement has produced a new way to determine the possibility of confusion:consumer surveys.The consumer questionnaire is a kind of legal experiment,which is a special type of evidence that proves the possibility of trademark confusion,and has the effect of evidence.It has the objectivity,relevance and substantive legitimacy of the evidence.The objectivity and normativeness of the consumer questionnaire affect the probative force of the questionnaire survey report.The consumer survey is a guest observation of the subjective cognition of trademark consumers,and has a strong role in proving the existence of confusion.The lack of confusion about the increasing possibility of trademark infringement disputes and traditional multi-factor detection methods highlights the need to introduce consumer surveys.The introduction of consumer questionnaires complements the confusion possibility theory of trademark infringement and promotes the development of trademark infringement judicial practice.The consumer survey originated from the United Kingdom and the United States and experienced a development process from severe exclusion to gradual recognition to full acceptance.It is now widely used in British and American trademark infringement cases.This has implications for China:to correctly understand and treat this new thing in consumer surveys,and to strengthen the regulation of consumer survey activities.The application rate and the adoption rate of the consumer questionnaire report in China's trademark infringement cases are very low,and the judges' reasoning about adopting the letter or not adopting the letter is also very thin.Without explicit provisions of laws and regulations,the lack of judicial guidance is the biggest obstacle to the judicial practice of consumer access to trademark infringement.The operation of the questionnaire itself is also the main reason for the exclusion of courts.The existing problems mainly include the irrelevant and non-representative of the respondents;the unscientific design of the questionnaire,the inductiveness of the question,the non-neutrality of the investigating institution,and the non-professional of the investigator.Regarding the construction of consumer questionnaires in China's trademark infringement judgment,it is first necessary to clarify that the nature of consumer questionnaires is a legal experiment,and it is a special type of evidence that proves the subjective cognition of trademarks in trademark infringement litigation,and has evidence effectiveness.Secondly,it is necessary to establish the applicable norms of evidence for consumer surveys,including the specific scope of application of the survey evidence and the criteria for reviewing the validity of evidence.Finally,it is necessary to develop an operational guide for the consumer survey activity.It is necessary to standardize the operation of the questionnaire survey and do a good job in legal experiment:reasonable selection of the survey object,the survey should be relevant in general,the sample should be representative;scientifically design the questionnaire,the problem design is reasonable,the questioning method is appropriate;scientific analysis of the data Reasonable control of the rate of confusion;strengthen the construction of investigation institutions,establish a neutral and objective investigation agency,train a group of professional researchers,strictly follow the rules of the investigation activities;the neutral intervention of the court.