Article 57 of my country’s Trademark Law stipulates that, without the permission of the trademark registrant, a trademark that is the same as its registered trademark is used on the same product, or a trademark that is similar to its registered trademark is used on the same product. trademark, or using a trademark that is identical or similar to its registered trademark on similar goods, which is likely to cause confusion, constitutes trademark infringement.
Article 57 of my country’s Trademark Law stipulates that, without the permission of the trademark registrant, a trademark that is the same as its registered trademark is used on the same product, or a trademark that is similar to its registered trademark is used on the same product. trademark, or using a trademark that is identical or similar to its registered trademark on similar goods, which is likely to cause confusion, constitutes trademark infringement. Among them, there are always logical problems in the identification of "similar goods" and the "confusion" theory of trademark infringement. This article will not be superficial, but will discuss the correct logic of identifying "similar goods" (including services) in order to seek advice from the Fang family. The logical problem of identifying "similar goods" under the confusion theory
In the confusion theory of trademark infringement, confusion specifically refers to consumers' misunderstandings about the source or related aspects of goods or services. Article 11 of the Supreme People's Court's "Interpretation on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Trademarks" (Fashi [2002] No. 32) defines "similar goods" as "similar goods" in terms of function, purpose, production department, sales channel, and consumer object The goods are identical in other aspects, or the relevant public generally believes that they have a specific connection and are likely to cause confusion. Therefore, "confusion" has emerged as the identification standard for "similar trademarks", and it is believed that "confusion" is the basic principle for identifying "similar goods". From this point of view, there are many judgments in judicial practice supporting the use of "confusion" as the standard for determining whether "similar goods" are constituted. However, using "confusion" as the standard for identifying "similar goods" has serious logical loops and inversion of cause and effect problems: the identification of confusion depends on whether the goods or services are similar; confusion is also the standard for measuring whether the goods or services are similar. Some scholars try to solve this logical problem by distinguishing the objects of "confusion". They believe that "confusion" when determining "similar goods" refers to confusion in the source of production, while "confusion" when determining trademark infringement refers to the use of goods. Confusion about value?, but the problem is that sometimes it is difficult to distinguish between confusion about origin and confusion about the use value of goods. Moreover, it is easy to only use confusion about origin as the single criterion for judging similar goods. It ignores the functions, uses, production departments, sales channels, and consumer objects of the goods that can affect whether the trademarks are similar. Confusion? is the criterion for determining trademark infringement
To solve the above logical problem, the key is to regard "similar goods" and "confusion" as factors to be considered when determining trademark infringement, and make it clear that "confusion" is the criterion for trademark infringement. Judgment standards, rather than identification standards for "similar goods". In fact, similarity of trademarks and similar products is not a yes or no concept, but a matter of degree. In the determination of "similar goods", if "similar" or not is a question of "yes" or "no", then the judgment from "similar goods" to trademark infringement is an issue of objectivity and typing, that is, as long as there is no The use of the same or similar trademark on similar goods with permission constitutes infringement. If "similar goods" are only one of the elements for determining trademark infringement, then the "similar goods" between goods will only increase the possibility of confusion, but will not definitely lead to confusion, nor will it necessarily establish trademark infringement. Whether it constitutes trademark infringement ultimately depends on whether there is evidence to prove that there is "actual confusion" or "risk of confusion". In the judicial practice of the United States, many cases have regarded "confusion" as trademark infringement rather than as a standard for identifying "similar goods".
The Nice Classification and the "Schedule of Distinction" are objective standards for presuming "similar goods"
According to Article 12 of the Supreme People's Court's "Interpretations on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Trademarks" According to the provisions of this article, the "International Classification of Goods and Services for Trademark Registration" (hereinafter referred to as the Nice Classification) and the "Distinction Table of Similar Goods and Services" (hereinafter referred to as the "Distinction Table") are the "references" for identifying "similar goods", and Not based on. Another meaning of "reference" is that in judicial proceedings, the Nice Classification and the "Schedule of Distinction" can be regarded as objective standards for inferring that the goods are similar, that is, if the goods involved in the trademark in dispute belong to similar groups in the Nice Classification and the "Schedule of Distinction" , are presumed to constitute similar goods, unless there is other evidence to prove that the goods involved in the disputed trademark are not similar goods.
The value of clarifying this point in judicial proceedings is: first, it increases the certainty and predictability of trademark infringement judgments and enhances judicial credibility. If the judgment of "similar goods" relies entirely on subjective standards, different judges will have different perspectives, making the judgment of "similar goods" full of subjectivity, and "similar goods" is one of the important factors in determining trademark infringement. The subjectivity of the judgment of "similar goods" will increase the certainty and predictability of trademark infringement judgments, making judicial judgments of trademark infringement a "chameleon" in the eyes of the public, thereby affecting judicial credibility. Second, improve judicial efficiency. If the determination of "similar goods" relies entirely on subjective standards, the judge needs to judge the many factors that affect the determination of "similar goods" one by one during the trial process. However, if the Nice Classification and the "Schedule of Distinction" are regarded as presumptively similar goods, the objective Standard, in the absence of other evidence, the judge can directly make an inference based on the Nice Classification and the "Classification Table". Subjective standards for the identification of similar goods and their application
Considering the Nice Classification and the "Schedule of Classification" as the objective standards for presuming "similar goods" and denying the subjective standards for the identification of "similar goods". On the contrary, the identification of "similar goods" ultimately depends on multi-faceted and comprehensive subjective standards. In our country's judicial practice, many judgments have focused on the functional auxiliary or complementary nature between commodities, the relationship between matching or supporting use, the relationship between products and parts, and the relationship between raw materials or tools. Competitive relationship between goods? Determination of similar goods? These are subjective standards worth learning from. At the same time, the application of subjective standards for identifying "similar goods" can also refer to the following points:
First, the higher the degree of similarity of the goods, the easier it is to cause confusion among consumers. The higher the similarity between the products in dispute, the greater the possibility of confusion among consumers, and the probability of determining that the infringement is established will increase accordingly. At the same time, the higher the similarity between the goods in dispute, the plaintiff’s proof of other influences, the possibility of consumer confusion, and subjective judgment factors will be reduced accordingly.
Secondly, the recognition of "similar goods" itself should not take into account the well-known degree of the trademark in dispute. ?Similar goods? is one of the factors considered in the determination of trademark infringement, and the well-known degree of the trademark in dispute is also one of the factors considered in the determination of trademark infringement. Both of them affect the determination of trademark infringement, and there is no causal relationship. The higher the well-known degree of the disputed trademark, the greater the possibility of confusion among consumers. This has nothing to do with the similarity of the disputed goods. It is not appropriate to use the well-known degree of the disputed trademark to expand the scope of similar goods. In addition, my country adopts cross-class protection for registered well-known trademarks. If the scope of "similar goods" can be expanded based on the popularity of the trademark, then the cross-class protection of well-known trademarks will be meaningless.
Correctly understand the applicable logic of Article 57 of the Trademark Law
Article 57 of the Trademark Law stipulates the circumstances that constitute trademark infringement: (1) Without the permission of the trademark registrant, under the same trademark Use a trademark that is the same as its registered trademark on the same kind of goods; (2) use a trademark that is similar to its registered trademark on the same kind of goods without the permission of the trademark registrant, or use a trademark that is the same or similar to its registered trademark on similar goods , which can easily lead to confusion.
Judging from the expression of this article, there are at least four relationships involving trademark infringement between the four elements of the same kind of goods, the same trademark, similar goods, and similar trademarks: the same kind of goods without permission The same trademark is applied to the same goods without permission; the same trademark is applied to similar goods without permission; the similar trademark is applied to similar goods without permission.
It should be noted that these four relationships are not types of trademark infringement. The key to judging trademark infringement still lies in whether it constitutes "confusion" or "risk of confusion". Therefore, the correct logic for applying Article 57 of the Trademark Law is: the use of the same trademark on the same kind of goods without permission is presumed to be sufficient to cause confusion and constitute infringement, unless there is evidence to the contrary; The use of the same or similar trademark on goods does not necessarily lead to confusion; the use of the same or similar trademark on similar goods without permission will only constitute trademark infringement if it is enough to cause confusion.
At the same time, in the identification of "same kind of goods" and "similar goods", the Nice Classification and the "Classification List" can be effectively used as the basis for objective presumption: goods belonging to the same kind in the Nice Classification and the "Classification List" are presumed to constitute "Same kind of goods", unless there is evidence to the contrary; if they are similar goods in the Nice Classification and the "Schedule of Classification", they are presumed to constitute "similar goods", except where there is evidence to the contrary; the contrary evidence indicates that the disputed trademark involves Evidence that goods are deemed to constitute "the same kind of goods" or "similar goods" due to their functions, uses, production departments, sales channels, consumption objects, competition or substitution relationships, etc.