Research On Judgment Of Similar Products In Trademark Field Of China

In the course of the application of trademark law in China,it often meets the needs of judging similar commodities,but our current trademark legal system lacks of clear and specific provisions,which leads to difficulties in judicial judgment and even results in the case of different cases of co-accused.In order to establish a clearer and unified judicial judgment criterion of similar commodities in our country,the paper will research judicial judgement criterion through studying judicial practice in our country and combine with relevant practical experience in various countries.The scope of exclusive rights and prohibited rights of registered trademarks does not overlap.The exclusive rights are limited to registered trademarks and approved products,and the scope of protection of the prohibited rights is related to the identification of similar trademarks and similar products.Therefore,trademark rights not only include the exclusive right of the right holder to use the trademark,but also include the prohibition of using the same or similar trademark on the same or similar products.The Article 32 and Article 57 clauses of our Trademark Law indicate the comparison of the similar commodity is related to the success of the trademark registration and the support of infringement.However,in the legal system of trademark law in China,only articles 11 and 12 of the Interpretation of the Supreme People's Court on the Issues Concerning the Application of Law in the Trial of CivilDisputes over Trademarks are clearly stipulated for similar goods.Similar goods mean that the commodities are the same in functions and uses,objects of consumption,channels of sales,departments of production,etc.,or the public generally believe that there are specific links between comparative commodities and products that are likely to cause confusion.The laws and regulations of the trademark stipulate that we should distinguish standards for judging similar goods in different trademark course.Applying objective trademark standards during registration course,and applying the combination of subjective and objective standards during the course of invalidate,review and trademark infringement.Through the analysis of 100 cases,the judgment of similar goods in judicial practice is not uniform.The Trademark Review and Adjudication Board(TRAB)and the court have not adopted a combination of subjective and objective criteria;The principle of the reference the “Differentiation Form for Similar Commodities and Services”(hereinafter referred to as the “Differentiation Form”)among the Trademark Office,the TRAB,and the courts is not uniform;the lack of a detailed analysis of objective factors in judicial decisions but only directly judging that they are similar or different in the factors of functions and uses,sales channels,etc.,and making the conclusion;Objective identification criteria are inconsistent and consumer groups are not clearly defined.In considering the various elements of the objective criteria,a detailed analysis should be conducted.If the comparative product has multiple functions and uses,it should be cross-cutting to its main function and purpose.To judge the sales channels,it is necessary to combine the attributes of goods and to distinguish the daily-use goods and franchised monopoly goods,and to pay attention to commodities whose sales channels are regulated,and to consider advertisements and networks channels.Regarding the recognition of whether a part-related relationship constitutes a similar product,the principle of necessity is emphasized,and only if it constitutes a necessary relationship between parts and components can it be identified as a similar product.If the relationship between commodities is raw materials and finished products,they arelocated in different locations on the upstream and downstream,and the possibility of confusion is low,and generally does not constitute similar products.The core of the combination of subjectivity and objectiveness standard is whether it is easy to cause confusion,and the subject of confusion is the consumer group.With the development of society and the rise of consumption levels,many different types of goods in the classification table are identified as similar products in the areas of food products,clothing and other consumer goods,and in the field of equipment and equipment manufacturing,the possibility of expanding business areas is low and it is not easy to cause confusion.The geographical scope of consumer groups cannot be limited to mainland China.It is reasonable that using different judgement criteria in the course of trademark registration,review,appeal and infringement.It conforms to the high-efficiency goal of trademark review and the purpose of the trademark law to prevent confusion and unfair competition,and is consistent with the foreign countries.It should be clear that the Trademark Office adopts objective criteria to judge similar goods,and the TRAB and the court adopt a combination of subjective and objective standards.The Trademark Office shall determine the similarity which is based on a similar grouping of differentiating tables rather than on a large category.For categories of non-normative product names in the distinguishing table,it shall be determined in combination with the attributes of the goods themselves.The judgment of the TRAB and the court in the course of review,invalidation,and infringement,they should obey a similar step: determining the goods to be compared;and the premised is.trademark similarity;and recognition of the reputation of the trademark;and analyzation of the elements of the objective criteria;and the core element is the similarity of consumer groups.Through the above steps,it is determined whether the goods are similar and the range of similar products cannot be arbitrarily enlarged.