Study On Trademark Infringement About The Threedimensional And Merchandising Use Of Two-dimensional Trademarks

In recent years,there have been some trademark infringement cases in China,which are about using the two-dimensional trademarks owned by others as their own products,especially three-dimensional use of these two-dimensional trademarks,and producing or selling such products.Through the collection and analysis of similar cases,it can be found that different courts have different attitudes and judgments.In addition to the consideration of interest measurement and market order maintenance,the courts basically analysis from "whether it belongs to the trademark use" and "whether it is possible for consumers to confuse the source of goods".It is the different understanding of them that leads to different judgements.For a long time,the theory of likelihood of confusion has been regarded as the core of the identification of trademark infringement.However,it should be noted that trademark use is the premise of trademark infringement.On the one hand,the identification of trademark use is independent from the identification of likelihood of confusion.In the context of trademark infringement,the trademark use only focuses on whether the accused infringer uses the trademark for the distinguishing function,while the theory of likelihood of confusion focuses more on whether the source of goods or services will be confused by customers after the distinguishing function working.At the same time,there is an order between the identification of trademark use and the likelihood of confusion.Only when the accused infringer attempts to establish the connection between the trademark and his own goods through the use of the trademark,can it be possible that customers confuse the source of products or services.On the other hand,the identification of trademark use works as a threshold in the identification of trademark infringement,excluding the acts that do not damage the function of distinguishing origin from trademark infringement.And it also helps to distinguish the scope of trademark law and anti-unfair competition law,and to prevent confusion of application and duplicate protection.Therefore,before discussing whether the threedimensional and merchandising use of two-dimensional trademarks leads to likelihood of confusion,we should first discuss whether it belongs to trademark use.Since the three-dimensional and merchandising use of two-dimensional trademarks are commercial activities,when judging whether it belongs to trademark use,we should focus more on whether it can identify the source of goods.From the perspective of consumers,in general,consumers pay more attention to the goods,instead of associating the shape with the source of the goods,or considering it as a symbol to identify the source of the goods.From the perspective of the accused infringer,although it is difficult to judge whether he has the subjective intention of using the three-dimensional shape to distinguish and identify the source of goods,it can be determined that the accused infringer does not have the subjective intention when he clearly affixes his own trademark on the goods and does not use the similarity between the goods and other's registered trademark to promote and attract customers.As a supplement,even though the three-dimensional and merchandising use of twodimensional trademarks can play the role of identifying the source of goods,because there are obvious visual differences between the two-dimensional trademark and its three-dimensional form,and the three-dimensional shape has a certain “aesthetic function”,it cannot be "the same or similar trademark" with this twodimension trademark.So the situation of using " the same or similar trademark " in the same or similar goods which stipulated in the Trademark Law cannot be existing.Therefore,considering from the perspective of consumers and the perspective of the accused infringers,it is difficult for the three-dimensional and merchandising use of two-dimensional trademarks to identify the source of goods,which is the essential function of trademark.Therefore,it should not be recognized as the trademark use,and it does not meeting the premise of trademark infringement.Even though it can be recognized as the trademark use,the three-dimensional shape cannot be the "same or similar trademark" with the two-dimensional trademark.So this kind of act does not constitute trademark infringement.