Research On Judging Factors Of The Likelihood Of Confusion In Trademark Infringement

The likelihood of confusion plays an important role in determining whether a trademark is infringed.It is said that the judgment of whether a trademark is infringed should be based on whether the trademark has the possibility of causing confusion among the relevant public.In response to the newly revised Trademark Law in 2013,the new law added “easy to cause confusion” in the second item of Article 57,thus officially establishing the independent status of the Likelihood of confusion in the identification of trademark infringement.However,the revision of the new "Trademark Law" did not completely solve all the problems encountered in practice.The problem mainly manifested in three points: First,the "Trademark Law" did not introduce a new judicial interpretation after the revision,resulting in the judgment of the court.In the process of similarity,some adopt subjective standards,some adopt objective criteria.Second,the judgment factors for the Likelihood of confusion in trademark infringement are not complete enough.In practice,the factors considered by the court have already exceeded the legal text.The third is that there is no specific regulation on the weights and applicable methods of various factors,and the court has certain arbitrariness in the process of refereeing.The answers to the above questions can be obtained by summarizing the results of judicial practice in China and the absorption of successful experiences from extraterritorial countries.At present,there is a prominent viewpoint in the academic circles of our country that the provisions of the Trademark Law of our country after modification are similar to those of the European Union.Therefore,in our country,we should also adopt "based on similarity + to confuse the Likelihood." To define the trademark infringement certification standard,that is,to use strict objective criteria when judging similarity issues.At the same time,there is another point of view in the practice circle that “the trademarks specified in Article 30 of the Trademark Law are similar,and sometimes it is impossible to ignore the Likelihood of confusion and only compare the components of the trademark,especially when it comes to actual use.In the case of trademarks,this is even more true,that is,subjective criteria should be used when judging similarity issues.Both views have their own reasons.The first one is more logically complete,while the second one is more in line with the judicial reality.The two viewpoints are considered together,and an identification based on objective factors is supplemented by subjective factors.The standard is more in line with practice.By summarizing the court considerations in the typical cases of 20 trademark infringement in China,we can summarize eight factors that need to be considered in the process of judging the Likelihood of confusion.These include trademark proximity,product similarity,trademark strength,historical factors,subjective intent,market position of the commodity,actual confusing evidence,and consumer surveys.Among these eight factors,trademark proximity and commodity similarity are the two most important considerations.If the trademark proximity and the similarity of the goods cannot meet the minimum standard,then it is not necessary to consider other factors directly to determine that there is no Likelihood of confusion.If there is a minimum standard,multivariate testing should be used to comprehensively examine the likelihood of confusion,and consumer surveys should be encouraged to enhance explanatory power in order to improve the legitimacy of the conclusions.