How to determine whether the defendant s trademark has caused confusion and misidentification among

The trademark has the function of marking the goods and carries the business reputation of the trademark owner. Well-known trademarks, including well-known trademarks, are more susceptible to malicious infringement by unscrupulous operators, including direct imitation of well-known trademarks, and registration of well-known trademarks as domain names and company names. This is not only an act of trademark infringement, but also an act of unfair competition.

The purpose of infringement is to establish a relationship with a well-known trademark or its holder, mislead consumers, and thus open up a market for its products. When the victim files a lawsuit for trademark infringement, the court will determine whether the defendant has committed trademark infringement. Whether the defendant's trademark will cause confusion and misidentification among consumers is a factor that the court must consider.

If the defendant's trademark does not cause confusion and misidentification among consumers, that is, the victim's trademark is not substantially affected, the defendant's conduct should not be deemed infringing. Through the classic precedent of the "Pyraro" case, the US court has established eight factors for the court to evaluate whether the defendant's trademark has caused confusion and misidentification among consumers, which can be worthy of reference by China's legal practice circles. These eight factors are:

1. The strength of the plaintiff's trademark. The more famous the plaintiff's trademark, the more strongly it can be protected. 2. The degree of similarity between the plaintiff's trademark and the defendant's trademark.

The higher the degree of similarity, the greater the likelihood of confusion and misidentification among consumers. 3. The degree to which the products or services of the plaintiff and the defendant are similar. The greater the similarity of the products or services between the two parties, the more likely it is to cause confusion and misunderstanding among consumers.

4. Whether the defendant intentionally or maliciously caused confusion and misidentification of consumers. If the defendant is intentional or malicious, it will be more beneficial to the plaintiff. 5. Whether the defendant's trademark has caused confusion and misidentification in fact.

The plaintiff may be able to conduct an investigation among the relevant consumers through a professional investigation agency, and if it has actually caused confusion and misunderstanding among consumers, the plaintiff's chances of winning will be greatly increased. 6. The quality of the defendant's products or services. The lower the quality of the defendant's product or service, the more likely the court is to find that the consumer is confused and misidentified.

7. Whether the consumer is savvy. The less professional and less savvy the consumer, the more likely they are to be confused and misperceived. 8. Whether the plaintiff will produce the defendant's products or provide the defendant's services in the future.

If the plaintiff offers a product or service similar to the defendant in the future, the more likely it is that consumers will be confused. Of course, not every case needs to fully consider the above eight factors, and some of the important factors can be analyzed and considered comprehensively according to the actual situation of the case. (Lawyer Xu Zhida of Shanghai Maritime Law Firm).

This scope is very broad, and the confusion and misidentification are determined according to the degree of similarity between the two trademarks, and if the degree of similarity is large, then there will be a chance to receive a notice of refusal issued by the jury, which presumably constitutes confusion or misidentification. Beijing Guhan Trademark will wholeheartedly answer all your questions about trademarks.

The criteria for judging fair use of trademarks are: 1. In addition to using words and graphics that are identical or similar to the trademarks of others, whether Huichun has also added other explanatory words to indicate its descriptive nature. 2. The criterion for judging is whether the distinctiveness of the explanatory text is deliberately emphasized when using the explanatory text.

Article 52 of the Trademark Law stipulates that if an unregistered trademark is used as a registered trademark, or if an unregistered trademark is used in violation of Article 10 of this Law, the local administrative department for industry and commerce shall stop it, make corrections within a time limit, and may notify it, and if the illegal business turnover is more than 50,000 yuan, a fine of less than 20 percent of the illegal business turnover may be imposed, and if there is no illegal business revenue or the illegal business revenue is less than 50,000 yuan, a fine of less than 10,000 yuan may be imposed.

Article 10 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases Article 10 The people's court shall, in accordance with the provisions of Article 52(1) of the Trademark Law, determine that the trademarks are identical or similar in accordance with the following principles: (1) the general attention of the relevant public shall be the standard; (2) It is necessary to conduct a comparison of the trademark as a whole, as well as a comparison of the main parts of the trademark, and the comparison shall be carried out separately in the state of isolation of the object of comparison; (3) To determine whether the trademarks are similar, consideration shall be given to the distinctiveness and popularity of the registered trademarks for which protection is sought.

The fact that a trademark has the ability to deceive means that the trademark is likely to mislead consumers by causing the relevant public to have an incorrect perception of the origin, quality, quality, and characteristics of the goods. Before the amendment of the Trademark Law, the determination of deception in the relevant provisions must satisfy both exaggerated and deceptive publicity, and the amended Trademark Law imposes a single restriction on deceptive clauses, so that this clause can also be used to regulate signs that are not exaggerated but deceptive. The deceptive nature of the mark refers more to the fact that the meaning and content of the mark are inconsistent with the attributes of the goods themselves, resulting in deception.

The sign itself is a representation of the commodity, and the final result of a deceptive sign is to cause misidentification by consumers. In judicial practice, the determination of whether a trademark is deceptive requires that the trademark has a close description of the origin, raw materials, manufacturing process, nature, special place, function, etc. of the goods, and the description itself is false or leads consumers to misunderstand, which will ultimately mislead consumers into consumption. In practice, the above clauses apply if the description of the goods is false or cannot be proven to be true.

If the description is unclear whether it is true or false, the distinctiveness clause is used. In short, the mark is a representation of the commodity, and the mark cannot falsely describe the commodity, nor can it display the relevant attributes of the commodity. The trademark should be original, and a certain attribute of the goods cannot be seen from the description of the logo, and a good trademark should be memorable to consumers without the connection of other commodity attributes.

Trademarks are fraudulent and are defined in the legal profession as trademark mix-up. Trademark mixing is a common act of unfair competition, which seriously endangers the legitimate rights and interests of other business operators and consumers, and disrupts the fairness and order of the market. Article 5 of China's Anti-Unfair Competition Law regulates trademark mixing, and Article 5 A business operator shall not use the following unfair means to engage in market transactions and harm competitors:

1. Counterfeiting the registered trademarks of others;

2. Unauthorized use of the name, packaging and decoration unique to the well-known goods, or the use of names, packaging and decoration similar to the well-known goods, causing confusion with the well-known goods of others, so that the purchaser mistakenly believes that it is the well-known goods;

3. Using other people's business names or names without authorization, leading people to mistakenly believe that they are other people's goods;

4. Forging or fraudulently using quality marks such as certification marks and famous marks on goods, forging the place of origin, and making misleading false representations about the quality of goods. It mainly includes the following manifestations:

1. Counterfeiting the registered trademarks of others;

2. Unauthorized use of the name, packaging, or decoration unique to a well-known commodity, or the use of a name, packaging, or decoration similar to a well-known commodity, resulting in confusion with the well-known commodity of others, and making the purchaser mistakenly believe that it is the well-known commodity;

3. Using other people's business names or names without authorization, leading people to mistakenly believe that they are other people's goods;

1) Without the permission of the trademark registrant, the trademark identical to the registered trademark is used on the same goods;

2) Without the permission of the trademark registrant, the use of a trademark similar to the registered trademark on the same goods, or the use of a trademark identical or similar to the registered trademark on similar goods, which is likely to cause confusion; According to this law, confusion of trademarks occurs in the case of similar trademarks of the same type of goods, or identical or similar trademarks of similar goods.

Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases stipulates that: "Article 52 of the Trademark Law.

1) The trademark is the same, which means that there is basically no visual difference between the alleged infringing trademark and the plaintiff's registered trademark. Judging from the judicial interpretation, the use of the same trademark on the same type of goods can basically be judged to cause confusion to the public.

2. What are the reasons for the confusion?

a) Similar appearance.

Similarity in the appearance of trademarks mainly refers to the similarity of the wording, English letter composition and pattern composition of the trademark. The similarity of the glyphs of trademark characters is mainly reflected in the appearance of the structure of Chinese characters and the order of the composition of Chinese characters.

2) The pronunciation is the same.

Sometimes the trademark in question is very different from the registered trademark in appearance, but the pronunciation is the same, which can also cause confusion among consumers.

c) Category of goods.

Registered trademarks have approved use categories, so the scope of use of the allegedly infringing trademark may overlap or overlap with the approved scope of use of the registered trademark, further increasing the possibility of public confusion. In specific judicial practice, judges will refer to the International Classification of Goods and Services for the Purposes of Trademark Registration and the Classification Table of Similar Goods and Services for consideration, but this is the only criterion for determination, and it is necessary to consider whether the goods are competitive and competent, whether the goods are related, and the sales area of the goods in light of the specific circumstances of the case.

The laws of most countries, including China, do not require the occurrence of actual confusion when defining trademark infringement, as long as it leads to the possibility of confusion. The similarity of goods or services to a trademark is an important factor to be considered in determining whether there is a likelihood of confusion. China adopts a trademark classification registration system, and the Trademark Law clearly stipulates that the exclusive right to register a trademark is limited to the approved registered trademark and the goods or services approved for use.

From the consumer's point of view, taking the consumer as the subject of judging whether there is confusion or not, taking into account the interests of the consumer and the relevant public, as long as it is likely to cause confusion among consumers, such behavior can be determined to constitute trademark infringement. Conversely, if there is no likelihood of confusion occurring, there is no trademark infringement. Of course, confusion itself is a highly subjective concept, and it is difficult to provide evidence to prove the actual occurrence of confusion in trademark infringement cases.

Taking the possibility of confusion as an independent element of trademark infringement only defines the scope of trademark rights from the exclusive prohibition power of trademark rights. In the final analysis, trademark infringement is damage to the function of the trademark, and the damage to the function of the trademark should not and will not be limited to this, but also includes other forms of damage.

1. What are the constitutive elements of trademark infringement?

1. There must be an illegal act, that is, the actor has carried out the act of selling goods with counterfeit registered trademarks;

2. There must be a fact of damage, that is, the act of selling counterfeit trademark goods carried out by the actor has caused the damage to the trademark owner. The sale of goods counterfeiting the registered trademarks of others will cause serious property losses to the right holders, and at the same time, it will also cause goodwill damage to the entities that enjoy the registered trademark rights. Both property loss and goodwill damage are facts.

3. The offender is subjectively at fault, that is, the perpetrator has known or should have known about the fact that the goods sold are counterfeit registered trademarks.

4. There must be a causal relationship between the illegal act and the damage result, that is, there is a causal relationship between the sales behavior of the wrongdoer and the damage caused to the trademark owner.