The Judgement Of The Trademark Infringement Under The Network

The advent of the Internet era has broken through existing market concepts,and the Internet has become another environment for trademark use.This refreshed the concept of the use and protection of trademarks in the traditional sense,the protection of trademark rights has increased,and the scope of protection has also expanded.The development of the network has caused various forms of trademark infringement to emerge constantly,which brings new challenges to the identification of trademark infringement.Under such circumstances,due to the late start of China’s trademark law,there is no provision on online trademark infringement.Other laws involve the identification of online trademark infringement.The traditional trademark infringement certification standard does not define online trademark infringement.In the face of the status quo of network trademark infringement,it is quite difficult to find it in judicial practice,and the dispute is quite controversial.In the absence of legal provisions and judicial practice,there is a need to study and further clarify the identification of network trademark infringement.The article is divided into five parts.The first part is an overview of network trademark infringement.Firstly,it introduces the three characteristics of network trademark infringement behavior and network trademark infringement means,and then introduces the basic situation of online trademark infringement identification research at home and abroad.Finally,according to the domestic and foreign legal regulations and judicial cases,the author mainly introduces the types of network trademark infringement,indicating that the current types of online trademark infringement mainly include e-commerce business trademark infringement,search engine technology trademark infringement,app applicationtrademark infringement,domain name trademark Infringement and link trademark infringement.According to the above-mentioned actors and infringements,they can be divided into two categories: direct trademark infringement and indirect infringement.The direct infringing subject is mainly the provider of the network content,and is the agent who directly infringes the trademark right of others;the indirect infringing subject is the relevant network service provider,which mainly helps the direct infringement.This paper introduces the relevant classic cases at home and abroad in the introduction of different types of network trademark infringement,to further analyze the types of network trademark infringement behaviors and judicial practice,and paving the way for the following four parts.The second part analyzes the four elements of network trademark infringement,including the behavior of the perpetrator,the consequences of the damage,the violation of the law and the consequences of the damage,and the fault.The key to the illegality of the behavior of the actor is the use of the trademark.The key to the determination of the consequences of the damage lies in identifying the possibility of confusion.The key to the identification of the association between the illegal act and the damage is to determine the direct causal or indirect causal link;The key to the determination is to determine the different requirements of direct infringement and indirect infringement in fault.This part introduces the elements of network trademark infringement,which leads to the following problems in the identification of the elements in the network trademark infringement determination.The third part discusses the problems existing in the identification of network trademark infringement in China.The main problem of the identification of network trademark infringement in China is that there is no relevant legal provisions and judicial interpretations for the identification of network trademark infringement.Therefore,in the judicial case,the determination of whether or not to constitute a network trademark infringement is not uniform,and it is illegal to concentrate on the behavior of the perpetrator.There are problems in identifying the use of trademarks in the sexual identification,identifying the possibility of confusion in the determination of the consequences of damage,and identifying the fault of the indirect infringer in the determination of the fault.These objective problems need to be improved andimproved.The fourth part introduces the existing problems in the identification of online trademark infringement in China.This part mainly introduces the United States,Germany,the United Kingdom,the European Union and other countries and organizations in the determination of the use of the trademark in the illegal determination of the conduct of the actor,the determination of the possibility of confusion in the determination of the consequences of the damage,and the determination of the fault of the indirect infringer in the fault determination.The status quo,including the methods,standards,and standards in the theory,legal regulations,and cases,is to compare with the above-mentioned network trademark infringement determination in China.The fifth part is the focus of this paper.It is aimed at the problems in the identification of network trademark infringement in China.By referring to foreign experience,combined with China’s legal provisions and judicial practice,it puts forward suggestions for identification.Suggestions include: First,for the identification of the use of trademarks,it is necessary to clarify the geographical scope of trademark use.It can be used to refer to the common law practice of the United Kingdom,and the scope is limited to domestic consumers,and is not directly visible to trademarks,if only embedded.In the meta tag,the purchase of keywords,and will not be directly visible to consumers in other places,it should not be recognized as the use of trademark law.Second,for the identification of the possibility of confusion,learn from foreign experience,summarize the factors that should be considered in the identification,including the similarity of the appearance of the trademark,the degree of association of the goods or services,the popularity of the trademark,and the identification of the consumer from the perspective of the mass consumer.Considering factors,providing ideas and directions for judicial practice;confusion about the initial interest in disputes,because it does not cause consumers to confuse their sources when purchasing goods or services,should not be identified as the consequences of damage caused by online trademark infringement.Thirdly,the identification of the fault of the indirect infringer of the network trademark should be recognized as knowing or acknowledging,facilitating the practice and operation,and also conforming to the new legislative trend of China.At the same time,the consideration of the indirect infringer of the network trademark is known orshould be known.Suggestions include the obvious degree of infringement and the degree of consideration,the degree of clarity of the notice of the trademark owner,the speed with which the network service provider takes measures,the specific measures taken by the network service provider to prevent the infringement and the specific measures to stop the infringement.This part puts forward suggestions and hopes to provide ideas and methods for solving the problems of China’s network trademark infringement identification,and further improve China’s network trademark infringement identification.