On Misleading In Commercial Confusion

With the implementation of the socialist market economy system,China’s market economy has developed rapidly,a large number of enterprises have emerged,and there are many commercial confusion chaos in market transactions.Commercial confusion can cause serious damage to both the commercial credit and economic interests of legitimate business operators and the legitimate rights and interests of consumers,which in turn can undermine the trust mechanism of society.The new Anti-Unfair Competition Law,promulgated and implemented in 2018,specifically provides for commercial confusion,but there is currently less academic research on the issue of the path of identifying commercial confusion that arises in practice,and there is even less research on the core factor of identifying commercial confusion-"misleading However,there is little research on the path of commercial confusion in practice,and very little research on the core element of commercial confusion-"misleading recognition".And there are many scholars who directly equate confusion with misleading recognition,or believe that confusion certainly includes the result of misleading recognition.In this paper,based on the new provisions of Article 6 of the Anti-Unfair Competition Law on commercial confusion,and drawing on the relevant provisions of extraterritorial laws on commercial confusion,the concepts of confusion and induced misidentification need to be distinguished,and equating the two is actually blurring the boundary between trademark law and anti-unfair competition law.In trademark law,confusion occurs when the perpetrator commits an act of confusion that causes the appearance of two trademarks to be identical or similar and causes confusion as to the appearance of the two trademarks.However,in the case of commercial confusion,the confusion is not sufficient to lead to misleading results,because the purpose of commercial confusion is to protect the function of identifying and distinguishing the source of goods and services,such as trademarks,packaging and decorations,but not the commercial signs themselves,so that the consequences of misleading will not arise without affecting the identification and differentiation of commercial signs.The implementation of confusion does not necessarily lead to misleading results.The subjective element of misleading has been extended from "consumers" to "relevant public".The most controversial element of the misleading result is whether it should be "misleading" or "sufficient to be misleading"."In order to protect the legitimate rights and interests of operators in unfair competition disputes,we need to judge whether actual misidentification occurs from the perspective of a significant number of consumer groups,rather than just In order to protect the legitimate rights and interests of operators in unfair competition disputes,we need to determine whether actual misidentification has occurred from the perspective of a significant number of consumers,rather than just analyzing the misidentification of an individual consumer.We will analyze two types of misrepresentation with specific cases and summarize the criteria for defining misrepresentation.In the light of the actual situation in China,it is recommended that in judicial practice,a clear distinction be made between confusion and induced misidentification;the relevant public should be judged by including any person who may be involved in the process of using commercial signs,and potential consumers or users should be included according to the specific circumstances of the case;the subjective aspect should be taken into consideration when determining induced misidentification;and the abstract "relevant public with reasonable attention" should be used as the definition.The court has also included the principle of "the general attention of the relevant public" and "the possibility of actual misidentification".