| With the continuous development of today’s market economy,the market role of trademarks is also constantly expanding.In order to fully exert the economic value of trademarks already owned,commercial entities have gradually begun to explore new ways of using trademarks.In recent years,it is common to use the graphic of a planar trademark as the entire or partial appearance of a three-dimensional product.This type of behavior is not the same as the use of ordinary trademarks,which do not attach the trademark to the product as a separate part,but instead treat the trademark as a three-dimensional product itself as the only object in market transactions.This method of use has broken people’s traditional understanding of the use of trademarks,and has played a significant role in exerting the goodwill value of trademarks.At the same time,it has also brought many disputes to trademark owners who have not yet registered three-dimensional trademarks.However,there are different understandings of the three-dimensional use of plane trademarks in China at present,which makes different courts adopt the trademark infringement identification rules of "confusion possibility" or "trademark use+confusion possibility",the infringement identification rules of copyright law and the infringement identification rules of anti unfair competition law when dealing with such cases,thus leading to different results in the final judgment.In the infringement determination rules of the Copyright Law,due to some contradictions between the trademark registration and review process and the provision that the copyright of a work is automatically obtained without registration,the trademark owner cannot know whether there is an existing copyright through the registration and review process,which leads to the difficulty in determining whether the three-dimensional use of a planar trademark is original.At the same time,there are also disputes about how to determine the nature of three-dimensional use in copyright law,and whether it belongs to the act of reproduction.Therefore,the application of this recognition rule is unreasonable.In the infringement determination rules of the Anti Unfair Competition Law,a three-dimensional planar trademark is considered as the unique decoration or packaging of well-known goods,but in essence,the two are not exactly the same,and this rule cannot reasonably regulate such acts.In the rules for determining trademark infringement,there is a certain logical contradiction in the "likelihood of confusion" rule,which does not clarify that the similarity between trademark styles and product types is only a consideration of the likelihood of confusion.Mistakenly placing similarity in the dominant position of infringement determination will inevitably lead to erroneous results in determining the three-dimensional use of planar trademarks.The correct handling method should be based on clarifying the core position of the possibility of confusion in the identification of trademark infringement,taking the use of trademarks as its prerequisite,excluding other interfering factors,and independently determining the use of trademarks in the three-dimensional use of planar trademarks.All possible actions that can associate goods with trademarks should be accurately identified as trademark use,and so should the three-dimensional use of planar trademarks.In addition,characterizing this behavior as trademark use can also help distinguish different behaviors and apply corresponding infringement determination rules to avoid erroneous application.Therefore,when determining the infringement of a three-dimensional use of a planar trademark,the rule of "trademark use+likelihood of confusion" should be adopted.Firstly,the behavior should be qualitatively determined based on the considerations of trademark use,and then the trademark similarity,scope of product types,and significance and popularity of the commercial trademark should be comprehensively considered to determine whether it constitutes a trademark infringement. |
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