An Empirical Analysis Of The Judgment Of The Possibility Of Trademark Confusion

The likelihood of confusion runs through all stages of the operation of trademark law.It is not only an important examination criterion for trademark applications,but also a basic criterion for trademark infringement.In addition,the judgment of the possibility of confusion affects the strength of trademark protection and the degree of realization of trademark rights,which is one of the important issues in trademark law.After the amendment of the Trademark Law in 2013,the possibility of confusion instead of similarity has become the sole criterion for judging trademark infringement.However,in judicial practice,local courts do not have a deep understanding of the possibility of trademark confusion,and there are no small judgments.The problem.In order to understand the problems in practice,this article selected 100 cases of trademark confusion and infringement for analysis and statistics.Through data analysis and arrangement,the author found that the court mainly considered the following factors when judging the possibility of confusion:trademark factors,commodity factors,trademark popularity,trademark distinctiveness,and the degree of public attention.In individual cases,the court also considers the defendant's intentions and the actual confounding evidence.Through the analysis of the overall data and specific cases,the author finds that there are two deficiencies in judgment methods and judgment factors in the judgment of the possibility of confusion in China.On the one hand,the logic of obfuscating the possibility judgment is confusing and the method is confusing.On the other hand,the number of judgment factors for the possibility of confusion is insufficient and the content is not uniform.There is no detailed analysis on the identification of specific factors,and the judgment of specific factors is too simple.In order to solve these problems,after the research,the author putforward opinions on the judgment methods and judgment factors of the possibility of confusion.As for the judgment method,firstly,it should be clear in the judgment logic that similarity is the basis and premise of the possibility of confusion;secondly,in the application of specific judgment methods,the court judges the possibility of confusion should be divided into the judgment that the trademark and the product have the most basic similarity.,And then combine the factors to determine the possibility of confusion.In terms of judging factors,the author believes that specific factors should be divided into two categories:basic factors and auxiliary factors.The former is a factor that must be considered when judging the possibility of confusion,including the trademark factor and the commodity factor;the latter is not necessarily added.Factors that have been taken into account in the situation include the popularity of the trademark,the distinctiveness of the trademark,the degree of public attention and the subjective intention of the defendant;the author also gives his own opinions on the specific judgment methods of each factor.