I. identification of the same kind of goods
the same kind of goods and similar goods are important concepts in trademark law. There are three kinds of goods with reference to the goods approved for use by registered trademarks, namely, the same kind of goods approved for use by registered trademarks, similar goods approved for use by registered trademarks, and other goods. Therefore, there are two boundaries accordingly, namely, the boundary between the same kind of goods and similar goods, and the boundary between similar goods and other goods. In trademark law, the focus is on the boundary between similar goods and other goods, but no more attention is paid to the boundary between the same kind of goods and similar goods. This is due to the scope of protection of the exclusive right to use a trademark. The scope of protection of the exclusive right to use a trademark is also the scope of the right to prohibit a trademark. According to the provisions of the Trademark Law, a trademark registrant has the right to prohibit others from using the same or similar trademark on the same or similar goods without his permission. Specifically, the trademark registrant has the right to prohibit the following four acts: (1) the act of using the same trademark on the same commodity without the permission of the trademark registrant; (2) the act of using a trademark similar to its registered trademark on the same commodity without the permission of the trademark registrant; (3) the act of using the same trademark as its registered trademark on similar goods without the permission of the trademark registrant; (4) the act of using a trademark similar to its registered trademark on similar goods without the permission of the trademark registrant. The above four acts are also the acts of counterfeiting registered trademarks as stipulated in the Trademark Law. As long as the actor carries out any of the above acts, it constitutes infringement. From the point of view of trademark infringement, it is of little practical significance to strictly distinguish the same commodity from similar commodities. Even if the relevant commodities cannot be identified as the same commodity, they can be identified as similar commodities. Therefore, the study of the same commodity in trademark law has not been given more attention, and the study is more about similar commodities and the boundary between similar commodities and other commodities, rather than the boundary between the same commodity and similar commodities. However, because the criminal law of our country stipulates that the establishment condition of the crime of counterfeiting registered trademarks is that the actor must use the same trademark as the registered trademark of others on the same commodity, the same commodity has become an important issue in determining the crime of counterfeiting registered trademarks and non-crime, and the boundary between the same commodity and similar commodities has become prominent in the criminal law, which has become a problem that criminal law has to solve.
so, what is the same commodity? There are different views in theory. Some scholars believe that the same commodity refers to the same commodity, the same variety of commodities or the same commodity name, which are basically the same in nature and use; Other scholars believe that the same commodity generally refers to the same commodity with the same name, or refers to the same commodity with different names, according to the raw materials, shapes, properties, uses and habits of the commodity. Some commodities are different in raw materials and appearance, but considering the situation of consumers, they are essentially identical and should be regarded as the same commodity. For example, the frame, strips, wheels and rims used for bicycles have different purposes, but they should also belong to the same commodity in the concept of bicycle parts. The above viewpoints define "the same commodity" from different angles, each of which has certain reasons, but there are also some points for discussion. Their shortcomings are that they do not distinguish between two levels. First, when analyzing and judging the same kind of goods, we must first solve the problem that the goods involved in the case (hereinafter referred to as "goods to be identified") and what goods belong to the same kind of goods, that is, to solve the problem of judging the same kind of goods as reference goods. Second, what criteria are used to judge that "goods to be identified" and "reference goods" belong to the same kind of goods.
(1) Identifying the reference commodity of the same commodity should be the commodity approved for use with a registered trademark
The first problem in judging the same commodity is identifying the reference commodity of the same commodity. Because, the so-called same commodity must mean that the commodity involved in the case belongs to the same kind as a certain commodity, and only when compared with a certain commodity can it be said to be the same kind of commodity, that is, the reference commodity for identifying the same commodity should be determined first. In this regard, the above viewpoints do not explain the reference commodity for identifying the same commodity, so there is no premise for judging the same commodity. For example, some of the above viewpoints hold that the same commodity refers to the same commodity, or refers to the same commodity in terms of performance, use and raw materials. It is not clearly stated whether it is exactly the same as what commodity, whether it is the same as the commodity approved for use by a registered trademark, whether it is the same as the commodity actually used by a registered trademark, or whether it is the same as the commodity applied for registration by the trademark owner. In practice, the goods approved for the use of registered trademarks may include a variety of goods, and the trademark registrant may actually use his registered trademark only on one of them. If the actor imitates several other goods in the approved goods, can it also be considered as the same commodity? For example, the trademark registrant registered the trademark on the 12th category vehicles, land, air and sea carriers in the International Classification of Goods and Services for Trademark Registration, and the approved goods were bicycles, tricycles and their parts in the 12th category 124 commodity similar group and wheelchairs, trolleys and children's cars in the 126 commodity similar group. However, since the registrant registered the trademark, it has never produced tricycles, trolleys, wheelchairs and children's carts, but only used its registered trademark on bicycles and their parts, while the actor only used the registrant's trademark on tricycles and trolleys it produced. Bicycles, tricycles and trolleys are obviously not a commodity. If the approved commodity is used as a reference commodity for identifying the same commodity, then the actor's use of another person's registered trademark on tricycles and trolleys means the use of a registered trademark on the same commodity, and if the circumstances are serious, it constitutes a crime; If the goods actually used by the registrant are taken as reference goods, then the actor's use of registered trademarks of others on tricycles and trolleys is not the use of registered trademarks on the same kind of goods, and it does not constitute a crime.
we believe that the purpose of identifying the same goods is to protect the trademark rights of trademark registrants. According to the provisions of China's trademark law, the exclusive right to use a registered trademark is limited to the goods approved for use and the registered trademark. Therefore, the reference goods for identifying the same commodity should be the goods approved for use by the registrant. Trademark registrants use registered trademarks in their daily production and business operations in the following situations: (1) registered trademarks are used in all kinds of goods approved for use; (2) using a registered trademark on other goods that are not approved for use beyond the scope of the approved use of goods; (3) the use of a registered trademark on one or some of the approved commodities, that is, the goods that actually use the trademark are only part of the approved registered trademark; (4) The goods that actually use the trademark are only a part of the approved use of the registered trademark, and at the same time, they are beyond the scope of the approved use of the goods, and the registered trademark is used for other goods that are not approved for use, that is, the third and fourth cases exist.
in the first case, the reference commodity for judging the same commodity should be the commodity approved by the registrant, and there is no objection to this. In the second and fourth cases, it is an illegal act for a registrant to use its registered trademark on goods other than those approved for use, which is not only not protected by law, but also should be stopped by the local administrative department for industry and commerce, and can be notified or fined. Therefore, judging the same commodity, of course, can't take this commodity actually used outside the approved commodity as a reference commodity. Otherwise, it means legal protection for trademark registrants to use their registered trademarks on goods other than those approved for use. Third, when a registrant only uses a registered trademark on part of the goods approved for use, it should judge whether the same kind of goods should be based on the actually used goods or the approved goods. In our opinion, we should still use the approved goods as the reference goods to judge the same kind of goods. Without the permission of the trademark registrant, the actor used the same trademark as his registered trademark on the same commodity. Although the registered trademark has not been actually used on this commodity, the actor's behavior still infringes on the legitimate rights of the trademark registrant, and at the same time, it causes consumers to misunderstand and deceive them. The Trademark Law clearly stipulates that the exclusive right to use a trademark is limited to the registered trademark and the goods approved for use, not to the registered trademark and the goods actually used. If only the goods actually used by the trademark registrant are used as reference goods to judge whether the goods are the same or not, it means that the exclusive right to use trademarks on goods that are not actually used is not protected. In practice, there are a large number of spare trademarks and defensive trade mark, but these trademarks are often not actually used in practice. If we take the goods actually used by trademark registrants as a reference, we can't give legal protection to spare trademarks and defensive trade mark, which naturally infringes on the legitimate rights and interests of trademark registrants, and it is meaningless to set up such a trademark system. Second, both the standby trademark and defensive trade mark need to make an announcement when applying for registration, so as to disclose the trademark pattern and the approved goods to the society and consumers. Therefore, although the trademark registrant does not actually use its registered trademark on the relevant goods, if others use the same trademark on the goods, consumers will have a wrong understanding of the source of the goods, deceiving consumers and harming their interests. Especially in defensive trade mark, the defended trademark is generally a well-known trademark, and some countries also clearly stipulate that it must be a well-known trademark in defensive trade mark. Because of its high popularity and great social influence, although it is used in other commodities, it may also cause consumers to misunderstand, which is why many countries extend the protection scope of well-known trademarks to goods other than the same or similar goods approved for use.
(II) Comprehensive criteria should be adopted to judge whether the goods to be identified and the reference goods belong to the same kind of goods
After solving the reference goods of the same kind of goods, it is necessary to further solve the problem of what criteria to judge whether the goods to be identified and the reference goods belong to the same kind. We believe that when judging the same goods, we should take the international classification of goods and services for trademark registration as the basis, take the common name and use of the goods as the main standard, and also refer to the main raw materials, consumers, sales channels and other factors of the goods. If the goods to be recognized and the reference goods belong to the same kind of goods, then they belong to the same category in the International Classification of Goods and Services for Trademark Registration, and their common names and uses should also be the same. Therefore, when judging whether the goods to be identified and the reference goods belong to the same kind of goods, we should first determine which category the reference goods belong to in the 34 categories of goods in the commodity classification table and what their common names and uses are, and then judge whether the goods to be identified also belong to this category and whether their common names and uses are the same. If both commodities belong to the same category in the commodity classification table and have the same name and use, they belong to the same commodity. Let's comment on whether the frame, strips, wheels and rims of bicycles cited above belong to the same commodity, so as to explain how to identify the same commodity. First, if the goods approved for use with a registered trademark are bicycle accessories such as frames, slats, wheels and rims for Class 12 bicycles, then the actor's use of the same trademark on the frames, slats, wheels and rims belongs to the use of the same trademark on the same goods, and if the circumstances are serious, it constitutes a crime. Second, if the registered trademark is approved to be used as a complete bicycle of Class 12, then the frame, strips and wheels for bicycles belong to Class 12 in the commodity classification table with bicycles, but their common names and uses are obviously different, so naturally they cannot be considered as the same commodity. Third, if the goods approved for use in a registered trademark are 12th-class bicycle frames, then the common names and uses of bicycle accessories such as bicycle strips, wheels and rims are obviously different, and they cannot be regarded as the same kind of goods. It can be seen that whether the frame, strips, wheels and rims used for bicycles belong to the same kind of goods cannot be generalized, but the reference goods for judging the same goods should be determined first.
when determining whether the goods are the same, we should combine the commodity classification table, the common name and the use of the goods for comprehensive analysis. If only one of these criteria is used for judgment, mistakes may occur. In practice, although the names of some commodities are the same, their categories and uses are different in the commodity classification table. For example, gloves are divided into 1 kinds of medical gloves, 24 kinds of washing gloves, 25 kinds of daily gloves and 28 kinds of competitive gloves. Although they are all called gloves, they are not a commodity. Some goods have several names, such as mobile phone and mobile phone, computer and computer, etc. Although their names are different, the goods they refer to are essentially a kind of goods, which belong to the same category and have the same purpose in the commodity classification table, but with different names.
ii. identification of the same trademark
in criminal law, the same trademark is required to constitute the crime of counterfeiting registered trademarks, so the boundary between the same trademark, the same trademark and similar trademarks has also become an important issue in determining the crime and non-crime of counterfeiting registered trademarks in criminal law. Because of the complexity, multi-level and diversity of things themselves, it is impossible to have two identical things, and there are always some differences between things in some aspects or at some level. The so-called similarity is only relative, that is, things are the same in some aspects. Therefore, whether the two trademarks are the same can only be determined according to certain standards, and in a relative sense, the two trademarks are the same in some aspects or aspects. The crux of the problem lies in what standards and in what aspects the trademarks are identified as the same. We have to find the answer from the composition, elements and functions of trademarks.
(1) The same trademark refers to a trademark whose constituent elements and patterns are identical in sound, form and meaning (objective standard)
A trademark is composed of characters, figures, letters, numbers, three-dimensional signs and color combinations, and the combination of the above elements, and its function is to indicate the source of goods or services and distinguish similar goods or services. A trademark is to goods (or services) what a name is to people. A specific name is associated with a specific person, and a specific name represents a specific person. The same is true of trademarks. A specific trademark is associated with a specific commodity, representing the different sources, quality and reputation of the specific commodity, and the same trademark represents the same source, quality and reputation of the commodity. Consumers generally distinguish different commodities according to their trademarks and make choices. Therefore, China's trademark law stipulates that the trademark applied for registration should be distinctive and easy to identify. The distinctiveness of the trademark specified here (also known as the identifiability of the trademark),