1. What is the concept of confusion possibility in trademark infringement?

second, the "confusion" in trademark law refers to the consumers' misunderstanding of the source and relevant aspects of the goods or services. In short, it refers to the behavior of the actor who, by registering a trademark that is the same as or similar to others' trademarks, makes consumers misunderstand when purchasing goods or services, and fails to meet their expectations, causing consumers to mistakenly think that the former is related to the latter or is the same product.

2. What are the factors in determining the possibility of confusion in trademark infringement?

The determination of "possibility of confusion" in trademark infringement is a highly subjective matter, and it is difficult for countries to find a specific standard in trademark law legislation, relying more on the professional quality of judges and making a comprehensive analysis in combination with specific cases, so countries refer to the precedents of various courts in the United States in the process of determination, in order to maximize fairness and justice.

the United States is a typical representative of case law countries, and has formed its own set of methods to identify the possibility of confusion in a series of cases of its federal and intercontinental courts, that is, the multi-factor detection method, which is the crystallization of experience gradually accumulated in judicial practice, and its trademark law has not stipulated these specific reference factors. Therefore, I personally think that the identification factors of the possibility of trademark confusion can be summarized as follows:

(1) Trademark approximation

To judge trademark approximation, we must compare it from many aspects, so as to be more objective and fair, usually starting from three aspects: sound, form and meaning. Nowadays, trademarks are also different from traditional trademarks, which are more multi-color composition, multi-element combination, and even three-dimensional design, which is different from traditional single-color graphic design. These are to make trademarks more distinctive and enhance the degree of discrimination. Therefore, it can be summarized that consumers choose the wrong product because they think there is a connection between two commodities. At this time, we can conclude that consumers are confused and constitute trademark infringement. However, if the consumer knows that there is no correlation between the two commodities and still buys the product, then in this case, it cannot be considered as trademark similarity.

(II) the distinctiveness of a trademark

The distinctiveness of a trademark is the soul of trademark protection, so the distinctiveness of a trademark shows that the more famous a trademark is, the more likely it is to be confused. Consumers just vaguely remember the general situation of the trademark, and they will be cheated by bad merchants if they are not careful. Just as the logo of a well-known trademark has strong distinctiveness, it usually needs cross-class protection, which is different from the similar protection of general trademarks.

(3) Consumer's attention

For goods with similar trademarks, as long as ordinary consumers pay reasonable attention and can clearly distinguish the differences between the two trademarks, there will be no confusion between the two trademarks. Because you can't expect everyone to be a professional and think of everyone as an expert, many consumers often buy goods on a whim and don't pay special attention to the differences between the two trademarks, which is easy to cause confusion, so we should pay attention to the degree of attention of consumers when making judgments, and we can't generalize.

Third, there are problems with the possibility of confusion in trademark infringement in China

(1) There is no communication between theory and practice

Although the possibility of confusion is clearly stipulated in China's Trademark Law, in practice, it will make it inconvenient for court judges to judge cases, and the laws and regulations are inconsistent, which will easily lead to confusion. As a result, the judiciary may deviate from the original intention of legislation and appear.

(II) Insufficient trademark protection

The society is developing continuously, and the intensity of trademark protection should also keep pace with the times. With the appearance of all kinds of new trademark infringement, the legal system and ideas I have studied should also keep pace with the times, so as to keep pace with the times and innovate. Various new types of confusion, such as association confusion, reverse confusion and after-sale confusion, have been included in the scope of confusion possibility, and the typology system of trademark infringement has been accepted by most countries' laws. However, these new types of confusion listed above have not been included in our legislation. In practice, people are unfamiliar with these new systems. If these new forms of trademark infringement appear, judges will have no way to start and it will be difficult to apply them.

(III) Difficulties in judicial application of the principle of possibility of confusion

The new Trademark Law of our country has written "confusion" into China's trademark legislation for the first time, which not only makes China's legislative provisions similar to those of mainstream countries, but also is a highlight in the development of intellectual property rights in China. The lag and stability of law show that for a new concept, it is mostly a matter of principle and concept at first. Therefore, in practice, it is difficult to judge the application of confusion and the applicable standards cannot be unified, which has caused great trouble to judges.

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