A Research On The Judicial Application Of Criterion Of The Likelihood Of Confusion In China

The basic function of the trademark is to distinguish the source of goods or services,protect the trademark is to protect the trademark distinction function,condensation of protecting trademark trademark rights people of goodwill,others in the same or similar goods shall be forbidden to use the same or similar mark and cause consumer confusion and then steal trademark rights people of goodwill.As the most basic function of trademark,recognition is the choose and buy goods guidance function,the quality assurance function and the basis of credit recognition function to play,is also a logo as a trademark,the root cause of the protected by trademark law.Trademark confusion possibility exists in the relevant public happened when purchasing a commodity or select service mistake a mistake a source or relationship,make trademark indicates the basic source of goods or services of the basic functions are destroyed,therefore,whether in theory or in practice,from intermational treaties or generalized rules of trademark infringement,or from the national list of trademark infringement behavior way do type in all,you can see that confusion possibility standard has been concluded that the basic standard of trademark infringement behaviorAs a criterion for the determination of trademark infringement,the possibility of confusion is undoubtedly an important part of trademark law and an important theory for balancing the interests of trademark right holders,consumers and related competitors.The repeated results of the referee case of "If You Are the One,in the trademark infringement case raised the question of how to determine the criteria for confusing possibility in judicial practice.Based on the case data of the courts in the second instance of the five places in 2017,we studied the status quo and main characteristics of judicial application of the criteria for confounding possibility in China,and further studied the relationship between the possibility of confusion and the possibility of confusion.The results show that the trademark and commodity factors are the core factors that determine the likelihood of confusion in China,and are also difficult points in the application of justice.It has a significant correlation with the establishment of the possibility of confusion;the distinctiveness and popularity of trademarks are generally used to assist judgment of trademarks.The similarity,which does not have a significant correlation with the establishment of the possibility of confusion;the degree of attention of the relevant public is also a core factor of confusion judgment,but it is mainly used to determine the similarity of trademarks and commodities.On the whole,it has a significant correlation with the possibility of confusion,but from the perspective of individual factors,it has a general correlation with the possibility of confusion;the actual confusion and the subjective intention of the actor confused the likelihood in our country.There is little involvement in the application of justice,and there is no correlation with the possibility of confusion.In general,the criteria for the determination of the possibility of trademark confusion in China present the following characteristics in China's judicial practice:trademark and commodity factors are necessary and sufficient conditions for the determination of the possibility of confusion,comprehensive analysis of the possibility of confusion is lacking,and the similarity of trademarks and goods is identified.Including the possibility of confusion and so on.Combining the trademark confusion judgment theory,we found that the criterion for determining the possibility of trademark confusion in China has become alienated in the judicial application,resulting in a number ofjudicial application dilemmas-"symbolic protection" thinking is ingrained,the possibility of confusion and trademark similarity,similar trademarks The misalignment of the relationship;the similarity of trademarks and the applicability of commodity recognition tend to be subjective;the determination of the possibility of confusion tends to be simplistic;the possibility of confusion in trademark infringement and the determination criteria of administrative authorization are inconsistent-resulting in the determination of the possibility of confusion The rationality is doubtful.In order to be able to adapt to the socio-economic development,combining with the legislative purpose of trademark law and the actual development of the theory of confusing possibility,the criterion for the possibility of trademark confusion is reconstructed in light of the predicament in the judicial application of the criteria for the possibility of confusion in China.