Application Of The Likelihood Of Expansion Of The Product Lines In The Likelihood Of Trademark Confusion

Confusion theory has been a cornerstone in the study of trademark law all the time,and it runs through many theories of trademark law.In many trademark infringement cases,whether there is confusion is one of the focuses of the trial.In the years of judicial practice,many countries have gradually formed a theory of "likelihood of confusion." The likelihood of confusion means that in a trademark infringement case,the infringement should be based on whether the consumer will be confused about the source of the goods.Most courts use multi-factor test to define that whether there is a likelihood of confusion.This test is mainly based on the analysis of several factors in the case.The United States was one of the countries that used this test earlier to judge the likelihood of confusion.Although the factors considered by different courts are slightly different,but in general,it is mainly based on the eight-factor test,and the likelihood of expansion of the product lines is the focus of this paper.The likelihood of expansion of the product lines means that the rights of the trademark are not only related to the goods actually sold,but also to the natural areas in which the trademark will be expanded in the future.Initially,the reason for the court to consider this factor was to preserve the possibility of future market expansion,and this area of expansion is called “natural area”.Because once the approximate mark is used on the relevant goods,for most people,they are more likely to mistakenly believe that the trademark owner expands his market,and lead to a confusion.In this case,the consideration of this factor is actually increasing the likelihood of confusion.This factor focuses on two aspects: First,the plaintiffintentionally or likely to expand his market;secondly more importantly,the mark has caused misunderstanding of consumers thus they think is the expansion of the product line.In addition,the expansion of market must be "natural."In Trademark Law of PRC,there is no specific standard for whether there is confusion.The court mainly uses other factors such as similarity of marks and proximity of products to make judgment.The consideration of the likelihood of expansion of the product lines has been a blank.I will analyze the necessity of this factor from four aspects.In Trademark Law of PRC,there is no specific standard for whether there is confusion.The court mainly uses other factors such as similarity of marks and proximity of products to make judgment.The consideration of the likelihood of expansion of the product lines has been a blank.I will analyze the necessity of this factor from four aspects.Secondly,as the development of the economy,the trading habits,feature of goods and the psychology of consumers are changing.And the proximity of products has been changing.The Nice classification cannot solve new situations.New types of goods are constantly emerging,but based on the situation at this classification,the future commodity categories cannot be properly protected.Before each update of the Nice classification,how to protect the trademark rights of these future commodity requires the consideration of likelihood of market.The relief for the exclusive right to the trademarks should be limited to the extent of the likelihood of market expansion of the goods.Thirdly,there are different standards of proximity of products.However,objective standard will lead to unreasonable judgments,while subjective standards are logically difficult to justify.Likelihood of market expansion may help to eliminate the contradiction between the two criteria.Finally,the existing legislation is difficult to protect those trademarks that have not yet reached the well-known level.The likelihood of market expansion can bring a certain degree of protection to these trademarks and stop unfair competition.Due to the fact that there is no likelihood of market expansion in China's judicial practice,I try to apply this factor in the following three cases.In the "Feichengwurao" case,due to the natural barriers of the plaintiff and the defendant market,the plaintiff could not expand into the defendant's field,then the confusion advocated by the plaintiff did not actually exist.The "Aier" case tells us that due to the deficiencies ofthe Nice classification,the scope of trademark exclusive rights should be appropriately expanded;and the "Xineng" case reveals that there is no likelihood of market expansion,so it is necessary to appropriately restrict trademarks right.Finally,the purpose of trademark law is to protect free competition and achieve economic development by protecting the interests of trademark owners.However,the current criteria for identifying the likelihood of confusion are not perfect.I give my suggestion that is determining the benchmark status of the likelihood of confusion in trademark law,and specifically establish the eight-factor test in the judgment.Also,I provide some ideas for the determination of the likelihood of market expansion.