The Empirical Research On Judicial Judgment Standard Of The Likelihood Of Confusion In Trademark

Recently,as the growth of trademark registration,the occurrence of trademark infringement is more frequent.When the Trademark Law of China was amended in 2013,the concept of likelihood of confusion was explicitly added,and “ easy to cause consumer confusion ” was taken as the standard to judge that trademark counterfeiting constitutes trademark infringement.However,“ easy to cause consumer confusion ” is obviously a subjective standard,from the semantic point of view,which depends on the judgment of two factors,the approximation of the trademark,and the influence of the approximation on consumer identification.But these two factors are difficult to be described by specific rules,which need to be determined by the judge according to the real condition of the case.The article adopts empirical research method and takes 166 cases as samples to analyze the judgment ideas and specific standards of the likelihood of trademark confusion in judicial practice.After retrieving relative judgments and analyzing adjudicate reasons,it is clearly that a set of relatively consistent judgment ideas and standards have been formed in Chinese judicial practice.The specific method is that when judging the likelihood of confusion,we first need to judge the approximation between trademarks,and then choose different patterns on the basis of different degree of approximation,“ only approximation ”pattern,or “ approximation and other factors ” pattern.In the case of “ high approximation ” of trademark identification,judges can directly determine that they are easy to cause consumer confusion without considering other factors;in the case of only“ general approximation ”,it is necessary to increase the consideration of trademark renown,consumer attention and actual confusion results.The composition of trademark can be divided into two parts: word and graphic.The judgment standard of the similarity of word and graphic is different.The judgment standard of “ high approximation ” of word is “ the same main identification part ” and “ the same pronunciation and appearance ”;the judgment standard of “ high approximation ” of graphic is “ the same constituent elements and overall shape ”.The judgment standard of “ general approximation ” of word is“ similarity of one of the word composition,pronunciation,appearance,or same meaning ”;the judgment standard of “ general approximation ” of graphic is “ graphic elements or referring things belong to the same kind ”.Because the content of trademark renown,consumer attention and actual confusion which need to be considered under the “ general approximation ” situation is relatively objective,judges will combine the relevant evidence submitted by both parties and judge it according to the principle of free evaluation of evidence.The above judgment standards for the likelihood of the confusion of trademark which sorted out from the judgments basically reflect the legislative purpose of Chinese trademark law.Although there are some flaws in some places,they are worthy of affirmation and implementation on the whole.However,China is not a case law country,the influence of precedent itself is limited.Therefore,it can form a targeted judgment guide by combing the judgments,which is conducive to the formation of a unified pattern of judicial judgment.At the same time,combing the judgment standards can also provide effective evidence and plead opinions for the parties and agents in the face of such cases,so as to safeguard their legitimate rights and interests.