I. On the subject of judging trademark similarity
Article 1 of the Interpretation of the People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes (hereinafter referred to as Judicial Interpretation) stipulates that "the people's court shall, in accordance with the provisions of Item (1) of Article 52 of the Trademark Law, determine that trademarks are identical or similar in accordance with the following principles: (1) take the general attention of the relevant public as the standard; (2) It is necessary to compare both the whole trademark and the main parts of the trademark, and the comparison shall be carried out separately in the state that the comparison objects are isolated; (3) When judging whether a trademark is similar, consideration should be given to requesting protection of the distinctiveness and popularity of a registered trademark. " Regarding the concept of "related public", Article 8 states: "The related public mentioned in the Trademark Law refers to consumers related to a certain kind of goods or services identified by trademarks and other operators closely related to the marketing of the above-mentioned goods or services."
for the above judicial interpretation, the author understands that there should be a question of who should judge the similarity of trademarks. In the case of trademark infringement, according to the above judicial interpretation, the author understands that it should be done by two people: on the one hand, the relevant public, where the relevant public refers to the consumers of the goods or services, not ordinary consumers. Beijing High Court issued in 26 "Answers to Several Questions on the Trial of Trademark Civil Disputes" (hereinafter referred to as Answers) understood this as "the relevant public with general knowledge and experience in commodities"; On the other hand, it is a question for judges to compare and judge. The judge's judgment, I think, should be based on the judgment of the relevant public. If we understand and apply the above judicial interpretation in the way I understand it, it should be said that the judicial interpretation takes both subjective and objective aspects into account in judging the similarity of trademarks. Because the judgment of trademark approximation is a highly subjective issue, and trademark rights and interests are often of great importance to the parties, and the court is the last way for the parties to seek rights protection. If only individual judges exercise the judgment power of trademark approximation alone, once they make mistakes, it will be fatal to the interests of the parties, because after all, judges are not necessarily "relevant public". However, in the actual handling of trademark infringement cases, the court rarely gives consideration to both subjective and objective aspects when judging trademark approximation. The author has studied the judgments of some court trademark infringement cases. Generally, when judging the similarity of trademarks, the judges are arguing. In the discussion of "the general attention of the relevant public", the judges regard themselves as the relevant public, and few cases have listened to the opinions of the relevant public. As the attorney of Jiayu Company in the first and second instance, the author submitted a lot of evidence that the trademark of Jiayu GREATWALL and its Map was not similar to the trademark of 7855 Great Wall Brand Great Wall and its Map, but neither the court of first instance nor the court of second instance mentioned and adopted it in the judgment. At the same time, the court did not investigate its own understanding of "relevant public", and all of them regarded themselves as "relevant public" and made subjective judgments. Of course, if the judicial interpretation "takes the general attention of the relevant public as the standard" is understood as that the judge pays general attention from the standpoint of the relevant public, but the judge is not the relevant public, then the author is quite confused about how to judge from the perspective of the relevant public.
II. Criteria for judging trademark approximation
As for the criteria for judging trademark approximation, Article 9 of the judicial interpretation stipulates that "trademark approximation as stipulated in Item (1) of Article 52 of the Trademark Law means that the font, pronunciation, meaning or graphic composition and color of the trademark accused of infringement are similar to those of the plaintiff's registered trademark, or the overall structure after the combination of its elements is similar, or its three-dimensional shape and color combination are similar and easy to change.
the author understands that the above judicial interpretation puts forward such a principle for the judge as the main body to judge the trademark approximation, that is, first, it is judged from the perspective of sound, shape and meaning, and if the angle of sound, shape and meaning is not good, it is judged from the composition and its color or element combination, as well as the combination of three-dimensional shape and color. That is to say, if it is easy to judge whether the two trademarks are similar or not from the perspective of sound, shape and meaning, there is no need to judge the composition and the combination of colors or elements, as well as the combination of three-dimensional shapes and colors. At the same time, the judgment of "shape", combined with the provisions of Article 1 of the judicial interpretation, should be based on the principle of combining the whole with the main parts, rather than just comparing a certain element that constitutes the whole trademark, especially the constituent element is not original by the right holder, but also a very common place name and thing name, and the judgment should be made in an isolated state, and there should be no preconceived ideas. On the one hand, the court in this case thinks that there is a difference between the two trademarks as a whole. Although the pronunciation and meaning are not directly indicated in the judgment, they are also admitted to be different between the lines. However, when comparing the main parts, they only compare the two trademarks, including the word "Great Wall", completely ignoring that one is round and the other is square (the trademark "Jiayu Great Wall and Map" overprints abstract and black Great Wall battlements). At the same time, "Great Wall BRAND" trademark also includes English "GRENTWALL" and "Brand", the distant Great Wall pattern, and even if only the text part is compared, one is "Great Wall Brand" (the word "Brand" is not dispensable as an integral component of its trademark) and the other is "Jiayu Great Wall", and the difference between them is very obvious. In fact, the reason why the court finally ruled that the two trademarks are similar is because both trademarks contain the word "Great Wall", which is completely influenced by preconceived ideas.
At the same time, for the judgment of trademark infringement, we should not only compare the two trademarks, but also judge whether it is easy to cause confusion and misunderstanding among the relevant public. In this regard, the "Answer" of the Beijing Higher People's Court believes that even if the two trademarks are similar, it does not necessarily constitute infringement, because whether it constitutes infringement is also a necessary condition of "whether it is easy to cause confusion and misunderstanding among the relevant public". Whether it is "easy to cause confusion and misunderstanding among the relevant public" should be based on the coexistence of goods with two trademarks (of course, it also includes other issues, such as whether the factory name and address are marked, the value of the goods themselves and other factors, because consumers will pay special attention to goods with great value, which is not easy to confuse). As mentioned above, the case has the problem that the trademark 7855 has not been used for many years (the Great Wall wine using this trademark appeared in the market at present only after Jiayu Company raised this issue, and it appeared on the back of a very inconspicuous wine bottle), and these problems were not mentioned in the judgment.
III. On the relationship between well-known commodities and well-known trademarks
Due to the particularity of this case, a trademark containing "Great Wall" with weak distinctiveness is approximately judged. For the judgment that the trademark involved is similar to the registered trademark of the obligee, the actual use of the trademark of the obligee should be ascertained, because as mentioned above, the well-known and well-known trademarks and their distinctiveness come from use. At the same time, the concept and scope of the actual use of trademarks in trademark infringement cases should be different from those actually used in trademark dispute administrative cases (for general trademark infringement cases, it is not necessary to examine the actual use of right trademarks as long as the two trademarks are similar).
as mentioned above, the court finally decided that the trademark involved was similar to the trademark of COFCO 7855 "GREATWALL Brand Great Wall and Map". According to the logic of the judgment, it is because both of them contain the word "Great Wall" and the trademark of COFCO 7855, which also contains the word "Great Wall", enjoys a high reputation among wine consumers. According to Article 1 (3) of the judicial interpretation, whether the trademark is similar or not is judged. In the end, the court found that although the two trademarks were not similar as a whole and their pronunciation and meaning were different, the two trademarks were similar. But a trademark that has never been used or rarely used is not well-known or famous. In this case, the court of first instance did not investigate the trademark use of the obligee. Although COFCO was required to submit the use evidence in the second instance, and although COFCO only submitted a bottle used around 1995 in the second instance, it was difficult for the relevant public to notice the 7855 trademark used together with the green food certification mark on the back of the wine bottle (the physical evidence of wine submitted in the first instance was all goods using the GREATWALL trademark, There is no evidence of using the trademark 7855), and the size and green food certification mark are generally the same, and the registered trademark of "GREATWALL" is obviously used on the front. The court still determined that the trademark of 7855 "GREATWALL Brand Great Wall and Map" is widely used and enjoys a high reputation among consumers. In fact, here, the court confused the relationship between commodity well-known and trademark well-known. The long-term use of the word "Great Wall" as a commodity name does not mean that the high popularity enjoyed by consumers is not equal to the popularity of the 7855 trademark.
it is undeniable that the Great Wall, a great cultural and historical heritage of the Chinese nation, enjoys a certain popularity in the eyes of consumers due to its own popularity and the quality of the Great Wall wine of COFCO, but there is no inevitable relationship between the popularity of goods and the popularity of trademarks. Beijing Erguotou, a well-known commodity in China, has nothing to do with the trademarks of Red Star, Niulanshan and Huadeng used by different Erguotou manufacturers. COFCO has long used the registered trademark of "GREATWALL" on wine products, instead of the trademark of 7855 "GREATWALL Brand Great Wall and Map". The word "GREATWALL" in the "Great Wall Wine" used by COFCO on wine products is used as the name of the product. Therefore, consumers recognize the Great Wall Wine instead of the 7855 "Great Wall Brand, Great Wall and Map" trademark. At the same time, the concept and scope of the actual use of trademarks are different in trademark infringement cases and trademark dispute administrative cases. In trademark infringement cases, the court should mainly consider the use in the sense of goods, because it is a sign to distinguish the source of goods. If a trademark is not used on goods, how can it distinguish different goods, let alone "easily cause confusion and misunderstanding among the relevant public", which is different from the starting point of consideration in trademark dispute administrative cases. Administrative cases of trademark disputes consider pure use, not use for use, so it can include many ways of use.
IV. On the identification of well-known trademarks in trademark infringement cases
As for the identification of well-known trademarks, the author once wrote a special article "Legal Thinking on the Revocation of 21 Jinweita Well-known Trademarks", which was published in Beijing Lawyer and Lawyer's Digest. The author believes that there are many disadvantages in the parallel system of identification of well-known trademarks by administrative organs and judicial organs in China. First of all, there is no court-level provision on the recognition of well-known trademarks by courts in terms of laws, regulations and judicial interpretations. That is to say, all courts that have the right to hear trademark disputes have the right to recognize well-known trademarks, including grass-roots courts. This will inevitably lead to conflicts between different courts due to different recognition standards, and the recognition of well-known trademarks is very serious. At the same time, for the well-known trademarks recognized by the administrative system, unless there is a counterpart in the case, and because one of the parties is recognized as a well-known trademark, the trademark of the counterpart is revoked, and the counterpart exercises the right of appeal, the well-known trademarks recognized by the administrative organs may be subject to judicial review. Otherwise, the well-known trademarks recognized by the administrative organs have no way to accept judicial review, even if they may infringe on the interests of others, they are free from judicial review, which is prone to the contradiction between the court and the administrative system in recognizing well-known trademarks. The "Caile" trademarks registered by Xi 'an Yangsen Company and Guangdong Foshan Shengfang Company in different categories of goods were respectively recognized by the administrative system and the court in the dispute. At the same time, there were already two "GREATWALL" well-known trademarks on computers and lubricating oil products in this case, and the court also recognized 7855 "Great Wall Brand Great Wall and Drawings" used by COFCO in the trademark administration case as well-known trademarks. Using it directly as evidence in the judgment is actually equivalent to the court recognizing another well-known trademark of "Great Wall Brand". In this way, there are several well-known trademarks of "Great Wall Brand" in different categories at the same time, which leads to the problem of how to carry out cross-class protection, which violates the legislative spirit and original intention of setting up well-known trademark clauses in the Trademark Law (the same problem exists for "Caile" well-known trademarks). At the same time, Jiayu Company has raised an objection to the trademark office's recognition of the trademark "GREATWALL Brand Great Wall and Map" as a well-known trademark, and submitted evidence. The court's direct recognition behavior also violated Article 22 of its own judicial interpretation. "If a party requests protection for a well-known trademark once recognized by an administrative authority or a people's court, the other party has no objection to the well-known trademark involved, and the people's court will not review it. If an objection is raised, the people's court shall review it in accordance with the provisions of Article 14 of the Trademark Law (the production and sales of Great Wall wines in 22 and 23 provided by COFCO listed in the judgment are the production and sales of a variety of Great Wall wine brands, that is, the "series" Great Wall trademarks, rather than the sales of goods using the trademark 7855. Even if they are all the production and sales of goods using the trademark, according to the four standards of trademark recognition in Article 14 of the Trademark Law, The evidence that the trademark is well-known only by production and sales volume is insufficient, and even if the trademark is well-known now, it does not mean that the trademark of "Jiayu Great Wall and Map" was well-known when it applied for registration in 1999. At the same time, there is still a necessary problem in the identification of the well-known trademark of "GREATWALL Brand Great Wall and Picture" in this case, because the principle of the court's identification of well-known trademarks is passive, that is, the parties apply and the case needs it. First of all, there is no cross-class protection problem in this case, and it is unnecessary to identify well-known trademarks; At the same time, COFCO did not apply for the recognition of well-known trademarks. On this issue, the court of first instance once mistakenly identified the word "Great Wall" used by COFCO on wine products as an unregistered well-known trademark, which was corrected by the court of second instance, but it itself