Only a few countries, such as my country and Japan, do not mention the risk of confusion when stipulating trademark infringement, but directly stipulate that "without the permission of the trademark registrant, the use of a registered trademark on the same product or similar products" "Identical or similar trademark" is an infringement. Although this legislative model has strong operability in judicial practice, it has caused some courts in my country to use trademark similarity and product similarity as the criteria for judging trademark infringement, which violates the legislative purpose of the Trademark Law. and value. The author believes that the judgment of trademark infringement should be based on the likelihood of confusion, and the role of similar trademarks and similar goods in the judgment should be correctly viewed. 1. The judgment of trademark infringement should be based on confusion (1) The object of trademark rights determines the judgment standard of trademark infringement. The object determines rights. What needs to be clarified before delimiting the boundaries of trademark exclusive rights and determining the judgment standard of trademark infringement is the trademark law. What is the object of protection? A trademark does not just refer to a "symbol logo" composed of words, graphics, letters, etc. or a combination thereof. It also includes the goods or services it refers to, and the most important goodwill. These three elements of a trademark are a unified organism, and a trademark cannot be constituted without any one part. Among the three, what the trademark law really protects is not the trademark mark itself, but the goodwill it carries, that is, the relationship between the mark, the source of the product and the reputation of the operator. A symbol that cannot function independently of the product and its provider is not a "trademark". Only through the use of operators, a certain logo can gradually become a carrier that gathers information about consumers' purchasing experience and product quality, and become a symbol of the trademark owner's business reputation. As the saying goes, "Trademark is the most trustworthy seal of the trademark owner. The trademark owner uses it to guarantee the goods with the trademark. It conveys the trademark owner's good or bad reputation...Reputation is like a face, it is the possession of the trademark owner." a symbol of the author and his credibility.” The trademark after use is no longer a simple identification symbol, but represents the quality of specific goods or services in the minds of consumers and ensures that they can meet the level expected by consumers. This kind of trust based on trademarks allows consumers to confidently choose the brand they are about to buy without having to investigate when making a purchase. It also makes trademarks a silent salesman for operators to promote goods. However, the reason why operators and producers as trademark owners are willing to continuously invest in using trademarks and ensure the stability of product quality is precisely because these investments and efforts can be rewarded, that is, trademarks have become a guarantee of quality. In the process of continuous innovation, we attract more consumers; more importantly, these goodwill will not be used or misappropriated by others. Therefore, trademark law is not a law that protects symbols, but a law that protects the inherent connection between signs, goods, and operators. Determined by the object of trademark rights, only confusion can more directly point to the essence of trademark infringement. Confusion will destroy the connection between the mark, the source of the product and the reputation of the operator, and the similarity of trademarks is only an external appearance. For infringers who use other people's trademarks to disguise their own goods as other people's goods, only to the extent that it causes consumers to misunderstand, can they truly misappropriate the goodwill of the trademark owner. Merely using trademark similarity as a criterion for judging trademark infringement can easily lead to a deviation between the judgment results and consumers' perceptions. In situations where consumers will not be confused, the result of the implementation of the law creates consumers' impressions. For example, in some trademark dispute cases, the court makes an infringement judgment based solely on the similarity of the two trademarks and the similarity of the goods. The result of this practice is to shift the protection object of trademark law from goodwill to the trademark logo itself, and trademark registration may become a means of "symbol monopoly", which is in conflict with the legislative purpose of trademark law to protect goodwill. (2) The standard of confusion is conducive to the extension of the trademark system. Using confusion as the criterion for judging trademark infringement is consistent with the system of fair use of trademarks and is more logically extended. Like any right, the exclusive right to use a trademark also has limitations. This limitation is mainly reflected in the descriptive and indicative use of the trademark logo by a third party.

The above-mentioned uses are legitimate because they are limited to describing one's goods and services or indicating the scope of business. They will not affect the normal functioning of the trademark, nor will they infringe upon the trademark owner's accumulated experience in the trademark. of goodwill. Specifically, in the case of descriptive use, the trademark owner's trademark is usually a common word or geographical name that directly expresses the characteristics of the product, and it is registered because it acquires distinctiveness through use. However, the original meaning of these trademarks still exists, and the trademark owner has no right to prohibit third parties from using the logo based on the original meaning. If the word "Jinhua" indicating the place of origin is used in "Jinhua Specialty Ham", it does not infringe the trademark rights of "Jinhua Ham". "Dengying Beef" is the name of a famous beef product in Da County, Sichuan Province. Using it as a trade name on beef products will not infringe the exclusive rights of the "Dengying Brand" trademark, etc. Descriptive use requires that the user use it unavoidably, in good faith, without borrowing the credibility of another's trademark, and within a reasonable scope. This is the same as using confusion as a criterion for trademark infringement. Once a third party's use of a logo crosses a reasonable boundary, it will be converted from legitimate use to infringement. The standard for delineating this boundary is whether it causes Confusion among the relevant public. If the use by a third party causes misunderstanding by the relevant public, it may be an act of borrowing the reputation of another person's trademark and destroying the function of the trademark, thus being excluded from fair use. It can be said that the establishment of the confusion standard enables the third party's use to be completely divided into infringement use and legitimate use, ensuring the spread of the system. In this case, if similar trademarks and similar goods are used as the criteria for judging trademark infringement, the system of fair use of trademarks will encounter obstacles. Because infringement occurs once the conditions for similar trademarks and similar goods are met, the situations listed above are difficult to classify as legitimate use, and even a large number of uses of the logo that will not cause confusion will be classified as infringement. 2. Double similarity and confusion. The judicial interpretation of my country’s Trademark Law uses terms such as “misleading the public” when stipulating trademark infringement, but also uses “easy to cause the public to misunderstand” as a provision for similar trademarks, making the relationship between the two quite complicated. for blur. The author believes that objective standards should be used to judge similarity; in the judgment of trademark infringement, confusion is a richer concept. Similarity of trademarks and similarity of goods are irreplaceable and confusion does not necessarily lead to confusion. (1) Similar trademarks and similar goods do not mean confusion. The judgment of trademark similarity should only focus on the symbols themselves. Whether two trademarks are similar means that after comparing the two, whether some elements of the word trademark are the same or similar in terms of sound, shape, and meaning; whether the graphic trademark is similar in terms of composition, color, and the overall structure of the combined trademark with words and graphics. The judgment of similarity should be based on objective comparison, and it is not appropriate to introduce confusion as a reference, because once the possibility of confusion is considered in the determination of trademark similarity, it will lead to such a problem: on the one hand, to determine confusion, it is necessary to consider whether the goods or services are similar; On the other hand, whether there is a possibility of confusion is another factor in measuring whether the goods or services are similar. This has undoubtedly become a continuous cycle of "chicken and egg, egg and chicken" problems, making the relationship between the two even more confusing. Limit the similarity judgment to objective standards, and consider the similarity of trademarks and similar goods as one of the factors to consider in the likelihood of confusion, instead of using the likelihood of confusion as a criterion for judging the similarity of trademarks and similar goods. This can make the difference between the two The relationship is more logically smooth. In fact, the existence of likelihood of confusion does not necessarily mean that the trademarks are similar and the goods are similar. For example, "black" and "white" trademarks should not be similar trademarks according to general examination standards. However, my country's trademark examination department considers that the "black" trademark has a certain degree of popularity. When consumers see the same product on When using a "white" trademark, they will mistakenly believe that the two are related, which will lead to misidentification of origin. Therefore, the two are deemed to be similar trademarks and shall not be registered. The result of the above-mentioned ruling is undoubtedly appropriate, but it is far-fetched to determine that the two trademarks are similar on the basis of the possibility of confusion.

The examination authority's determination of trademark similarity should follow objective principles. If the two have no similar elements in sound, form, and meaning, they should determine that the two do not constitute similar trademarks. There is no need to deduce that the trademarks are similar based on the likelihood of confusion. If the conclusion is in line with general consumer awareness, the review authority can directly make a determination based on the possibility of confusion. The similarity of a trademark to the goods does not necessarily lead to confusion. In the case of McGregor-Doniger v. Drizzle, the United States proposed two important principles regarding trademark similarity and likelihood of confusion: First, even if two trademarks are very similar, it does not necessarily lead to confusion. Second, when evaluating the similarity of two trademarks, an important issue is to look at the impact of similarity on potential buyers. In the end, the court found that although the two trademarks were similar, there was no possibility of confusion. This principle explains: First, the judgment of the likelihood of confusion needs to consider a variety of factors, including, in addition to the degree of similarity, the registration and use of the trademark, its distinctiveness and popularity, and consumers' awareness, etc. The use of similar trademarks does increase the possibility of confusion among consumers, but consumers can still distinguish different sources of goods through the price of the goods, store decoration and business location. For example, the trademark logos of Hyundai Motor and Honda Motor are both H, and there is only a difference in angle. However, due to the high caution of consumers towards products in this price range, it is impossible to confuse the two in reality. Secondly, in trademark litigation, determining that trademarks are similar or that goods are similar is not a necessary prerequisite for determining the likelihood of confusion. The identification of similar trademarks and similar goods has never been the main purpose of trademark litigation, but one of the means to resolve the issue of whether there is infringement. Therefore, the possibility of confusion should always be the starting point and destination in the determination process, and the court does not need to draw a clear conclusion on the similarity of trademarks and similar goods. If the issue of whether there is a possibility of confusion can be resolved through other means, there is no need to consider whether the trademarks and goods are similar or similar. (2) Confusion is richer than similarity. Confusion includes confusion in a narrow sense, confusion in a broad sense, pre-sales and after-sales confusion, etc. It is a concept that is far richer than similarity. Confusion was initially limited to the direct source of the product, and then gradually extended to the association and sponsorship relationships between sources, completing the expansion from direct confusion to indirect confusion. The time of confusion was initially limited to the time of purchase, but later gradually extended to pre-purchase and post-purchase, leading to pre-sales confusion and post-sale confusion. Among them, after-sales confusion not only expands the time range for judging the possibility of confusion, but also expands the subject of judging confusion from the buyer to the bystander. Correspondingly, the continuous evolution of the concept of confusion has enabled countries around the world to establish a richer trademark infringement determination system. For example, the United States amended the Lanham Act in 1962 and deleted the "consumer's source of the goods or services" in Article 43. In this way, as long as the use of the trademark "is likely to cause confusion, misunderstanding or deception", it can constitute trademark infringement. Trademark infringement has expanded from the initial source confusion to association and sponsorship confusion. At the same time, the U.S. Senate explained: “Because this provision actually includes both actual consumers and potential consumers, in order to avoid misunderstandings about this term in the statute, the word ‘consumer’ is deleted.” This also means that the subject who is confused about the trademark can be either an actual consumer or a potential consumer. The time when consumers are confused can be at the time of purchase, before or after purchase. , thus laying the foundation for the establishment of pre-sales confusion and after-sales confusion systems. Among them, Brookfield Communications lnc V. The case of WestCoast EntertainmentCorp is a classic case of using the "initial confusion theory". In this case, the court held that Internet users looking for the plaintiff’s products were likely to be directed to the defendant’s website and find products similar to the plaintiff’s. Many consumers who originally intended to use the plaintiff’s products would likely use substitute products provided by the defendant. In this case, the defendant improperly obtained the goodwill accumulated by the plaintiff in its trademark, and therefore should bear liability for trademark infringement.

It can be said that with the continuous development of technology, new forms of trademark infringement such as domain names, link advertisements, and pop-up advertisements are emerging in an endless stream. It is difficult to use similarity as a criterion for judging trademark infringement to fully and accurately cover existing and possible future trademark infringements. Behavior. The concept of confusion has evolved to this day, and its connotation continues to expand. It not only includes the entire sales process of goods, but also includes many subjects such as actual buyers and potential consumers. Moreover, because it accurately points to the essence of trademark infringement, it can It covers various behaviors that undermine the function of trademarks and has greater institutional space than a single infringement system established based on similarity. 3. Conclusion Judging from the above analysis, my country’s Trademark Law uses similarity as a criterion for infringement judgment. There are many flaws. In practice, it has become an obstacle to the fair handling of individual cases. It is easy to make the infringement judgment results out of touch with the market and violate consumers. cognition. On the occasion of the third revision of the Trademark Law, the author suggests that my country should clearly use the likelihood of confusion as a criterion for judging trademark infringement and clarify the relationship between confusion and similarity. Specifically, Article 52, paragraph 1, of the Trademark Law can be modified as follows: “The use of an identical or similar mark to the registered trademark on the same or similar goods without the permission of the trademark registrant is sufficient to cause inconvenience to the relevant public. "Confusion" is an act that infringes upon the exclusive right to use a registered trademark. Correspondingly, the reasons for rejecting trademark registration applications should also be adjusted accordingly, and Article 28 of the Trademark Law should be revised to read: “Any trademark applied for registration that does not comply with the relevant provisions of this Law or is used by others on the same product or product If registered or preliminarily approved trademarks on similar goods are identical or similar, causing the possibility of confusion among the public, the Trademark Office will reject the application and will not publish it." Author: Yu Jing, original title: Criteria for Judgment of Trademark Infringement, respect the author’s copyright, please retain the author’s signature when reprinting.