With the rapid popularization of mass media and the globalization of knowledge economy, trademarks, as an important part of intellectual property rights, are the product of the development of market economy, and their value as intangible assets of enterprises is increasing day by day, and there are more and more cases of trademark infringement. Therefore, the determination of trademark infringement is the core of the trademark right system, and correctly grasping the determination of trademark infringement is the balance point of reasonably protecting the interests of the exclusive right holder of a registered trademark and the interests of the public. At present, China has failed to establish a scientific and perfect trademark protection system in essence, and there is no effective unified standard for the determination of trademark infringement. Therefore, in practice, the determination of trademark infringement depends on the discretion of judges to some extent, which is very likely to lead to judicial injustice. As an individual enterprise, although unable to advance the legal process, knowing the law and using it well can also turn the corner.

1. Manifestations of trademark infringement

There are various manifestations of trademark infringement in practice. For the convenience of operation, it is both possible and necessary to fix the forms of trademark infringement in law. Like most countries, China's Trademark Law also adopts the legislative system of enumerating the forms of trademark infringement. According to Article 52 of China's Trademark Law, trademark infringement can be roughly divided into the following categories:

1. Infringement of use

The so-called infringement of use refers to the act of using the same or similar trademark on the same or similar goods without the consent of the trademark registrant. The most direct purpose of trademark registration is to protect enterprise trademarks and prevent others from using them at will. Therefore, if you use another person's registered trademark without consent, no matter whether it is wrong or not, it will constitute an infringement of the exclusive right to use another person's registered trademark. In practice, the use of infringement is the most common one compared with other infringement methods, and it is also the most difficult to pursue such infringement.

2. Sales infringement

Sales infringement refers to the act of selling goods that infringe the exclusive right to use a registered trademark. Distributor is the medium between commodity producers and consumers, and has the obligation to provide consumers with qualified commodities. If a distributor provides consumers with goods that infringe on the exclusive right to use a registered trademark of others, it is undoubtedly helping the trademark infringer to achieve his purpose and damaging the rights and interests of trademark registrants and consumers, so it is also stipulated as trademark infringement. Like the use of infringement, sales infringement does not require the dealer to be at fault, as long as there is infringement, it should bear the responsibility.

3. Reverse Counterfeiting Infringement

Reverse Counterfeiting Infringement refers to the act of changing the registered trademark of a trademark registrant and putting the goods with the changed trademark back on the market without the consent of the trademark registrant. In reverse counterfeiting, the actor is not the end user of the goods, which artificially separates the proper relationship between the trademark and the goods, deprives others of the opportunity to expand their reputation through further circulation of the registered trademark, affects consumers' cognition of the trademark registrant, leads to the incomplete realization of the economic interests of the trademark registrant, and damages the exclusive right of the trademark owner to its registered trademark, which belongs to trademark infringement.

4. Other infringements

In practice, there are countless forms of trademark infringement. In addition to the above three typical infringement methods, such as using the same or similar words of another person's registered trademark as the company name, it is also common.

II. Identification process of trademark infringement

1. Determine the scope of the right to exclusive use of registered trademarks

At present, registered trademarks are divided into 45 categories in China, and it is allowed to register and use the same registered trademark in different categories. Therefore, not any use of the same registered trademark will constitute infringement.

2. Determine the specific object of the alleged infringement

After trademark infringement occurs, the obligee often knows the circulation of the infringing products in the market first, and then goes back to pay attention to the source of the infringing products. It is impossible to determine the object of infringement, and the maintenance of rights is impossible. Therefore, it is an extremely important step to accurately lock the infringer.

3. Similarity comparison

Compare the accused infringing object with the registered trademark and the goods approved for use by the registered trademark, and determine whether the trademark accused of infringement is the same or similar, and whether the goods used by the accused infringing trademark belong to the same category or similar to the goods approved for use by the registered trademark.

Among them, we should pay special attention to the judgment of trademark approximation and similar goods:

First of all, the judgment of trademark approximation must be based on the existing laws, and whether there is approximation from the font, pronunciation, meaning, composition and color of graphics, or the overall structure after the combination of various elements. In judging the approximation of a trademark, we should also focus on the general attention of the relevant public, the comparison of the whole or main parts of the trademark, and the consideration of the salience and popularity of the registered trademark. When comparing, we should also pay attention to the separate comparison. In the process of comparison, whether consumers will confuse or mistake the source of the product is also a very important issue in judging whether the trademark is similar or not, and we should pay full attention to it.

Secondly, it is the problem of judging similar commodities. Similar commodities refer to the same or similar commodities in terms of functions, uses, main raw materials, production departments, sales channels, sales places and consumers. In practice, the following factors should be comprehensively considered in judging similar commodities:

1. The function and use of commodities;

second, the raw materials and components of commodities;

third, the sales channels and places of goods;

fourth, the relationship between commodities and parts;

fifth, the producers, consumers and consumption habits of commodities, and other related factors that affect the judgment of similar commodities.

in a word, the above factors should be considered comprehensively in the identification of commodity similarity, but not all of them are required.

III. Strategies for Dealing with Trademark Infringement

The identification of trademark infringement is only a prelude to the action of safeguarding rights, and how to properly handle trademark disputes is the ultimate goal. In the face of trademark infringement disputes, enterprises should pay attention to the following points:

1. Looking for legal basis

In trademark infringement cases, after determining the point of prosecution, they should look for relevant legal basis. The so-called legal basis here should be as detailed as the basic information of registered trademarks, the registration of trademarks of defendants or plaintiffs, and the relevant provisions of the List of Similar Goods and Services, and if necessary, collect the Trademark Review Guide. For this piece, the more thorough the preparation, the more targeted the prosecution or response will be.

2. Preparing evidence materials

After finding the relevant legal basis, the next step is the preparation of evidence materials. In legal practice, evidence is the most powerful explanation of the truth, and the preparation of evidence materials should be comprehensively selected and determined around the possible controversial focus. When collecting evidence, we must fully consider all the evidence involved. When sorting out the evidence, we should group and number the proofs according to the relationship between legal relationship, litigation claim and reason, with the content we want to prove as the main line.

The common evidences in trademark infringement litigation include: evidence to prove the qualification of plaintiff and defendant; Proof that the plaintiff legally holds the trademark and its reputation and market value or that the defendant has the legal right to use the trademark; Evidence that the product name and product packaging of the defendant are similar to the plaintiff's trademark and product packaging, or evidence that the goods used by the defendant are different or similar to the plaintiff and the trademarks used are different or similar to the plaintiff's registered trademarks; For the plaintiff, evidence that the defendant's infringement or unfair competition has caused the plaintiff a loss in product sales should also be submitted; Evidence needed for other cases.