Research On Identification Of Similar Goods And Services In Application Trademark Disputes

Article 57(2)of the "Trademark Law of the People’s Republic of China"(hereinafter referred to as the "Trademark Law")stipulates that the use of the same or similar trademarks on similar goods as the registered trademarks on similar goods without the permission of the trademark registrant may easily cause confusion.Constitutes infringement of the exclusive right to use the trademark."Everywhere is a terminal,everywhere is computing" is a prominent feature of the Internet era.Each terminal runs dozens or even hundreds of applications.Each software development and operation entity provides different software products or services.This has led to Type 9 "Software",Type 35 "Advertising,Business Management",Type 38 "Internet Communications" and Type 42 "Computers" in the "Classification of Similar Goods and Services" There are frequent trademark infringement lawsuits between software design,computer programming,and other categories.The focus of the dispute is whether the application software itself or the corresponding services provided by the application software and the goods or services of the previous trademark owner constitute similar goods or services.Because trademark disputes in application software are new types of disputes and China adopts different rules and concepts of administrative procedure review and judicial procedure in the design of the system,trademark administrative departments and people’s courts not only appear in the application when responding to disputes.The "goods" belonging to category 9 of the"Division Table" that computer products or software services of category 42,are qualitatively unknown,and they also belong to the service category,but there is also qualitative ambiguity in the identification of specific categories;although similar goods or services are found to be judicial Explain the elements of the regulations,but China’s judicial policy states that it is necessary to consider the distinctiveness of the trademark and the market visibility,and to protect the trademark with strong distinctiveness and high market awareness,in order to stimulate the winners and purify the market environment,curb free-riding and imitation,The elements described in the above policy are parallel elements similar to the goods or services,and the confusion and ambiguity caused by the identification of similarity are added;the role of the "Division Table" also deviates from the original intention for trademark administration at the time of formulation.Rights cases have been abused in some cases,the courts did not think about the substantive differentiation of goods or services during the trial of the case,but simply made judgments based on the"Division Table".The reasoning was insufficient,and it was difficult to convince the parties to the dispute or to stop the dispute.Role;from the content of Article 57 of the "Trademark Law",it can be seen that there are both "similar" expressions and"possible confusion" expressions.From the expressions of the provisions and China ’s reference to the EU in the revision of the Trademark Law,it can be known that China has identified infringement standards.It is roughly the same as the European Union’s "similarity + possibility of confusion" standard,but China has made a similar judgment in Article 11 of the "Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Trademark Civil Disputes"(hereinafter referred to as "Judicial Interpretation of Trademark Law")an element of the possibility of confusion has been added to the confusion,which leads to confusion in the determination of such cases.When the similarity is determined,the possibility of confusion is considered.However,after the similarity of the trademark and the goods and services are determined,if there is a possibility of confusion on this basis,"Element a+Element b+ … +Confusion Possibility"appeared to launch similar goods or services,and then pass "Elements A+B+components identical or similar trademark+ …… +goods or services such as"Release logical circulation problems likelihood of confusion.This paper uses the research methods of inductive summary method and analytical comparison method to sort out the current relevant laws and regulations in China,summarize and summarize representative cases and legislative regulations and trends of reference countries.Therefore,it should be pointed out that computer products and services should be properly understood,application software should be qualitatively in nature,and the characteristics of many technical services that need to be dependent on the normal operation of the network economy should be considered,and the core services should be distinguished from peripheral technical means in detail;similar The identification elements should be based on the principle of Article 11 of the Judicial Interpretation of the Trademark Law,and exclude parallel factors such as the popularity and distinctiveness of the trademark.It should be clear that the"Division Table" should be used as a basic principle in the administrative registration of trademarks,but can be a modest breakthrough.Objections,invalidation and other administrative cases and judicial confirmation cases should be used as a reference;clarify the logical relationship between "similar" and "possibility of confusion",clarify the infringement determination criteria of "similarity+possibility of confusion",delete " Article 11 of the Judicial Interpretation of the Trademark Law stipulates that "easily confuses the relevant public",re-defines similarity based on similarities in physical meaning combined with competition and related relationships in economic relations.From the time of trademark registration,the applicant needs to select a specific category of goods or services to determine the scope of exclusive rights.In trademark infringement cases,the trademark owner must prove that the infringer uses the trademark on similar goods or services to use the right of prohibition,Service identification runs through various processes,and there is a huge difference between similar identification and traditional offline identification in the Internet environment.Therefore,clarifying similar identification factors,standards,and corresponding logical relationships is of great significance to judicial practice and to promote the development of the Internet economy.