(1) Taking the general concern of the relevant public as the standard;
(2) It is necessary to compare not only the whole trademark, but also the main parts of the trademark, and they should be compared separately in the isolated state of the comparison objects;
(3) When judging whether the trademarks are similar, the distinctiveness and popularity of the registered trademarks should be considered. To master the above principles and judge whether trademarks are identical or similar according to law, we should pay attention to the following points:
First, it should be judged by the general attention of the public, including relevant consumers and operators. The basic function of trademarks is to enable consumers to easily identify these goods and services and their sources when purchasing them. There are also identical or similar trademarks in the market, which are mainly influenced by relevant consumers and specific operators. Therefore, after the trial, the judge should return to this situation when he finds that the screened trademarks are the same or similar, taking the attention of relevant consumers and specific operators as the standard. This concern is not the concern of relevant experts in this field. If the expert's attention is too professional, the judgment standard may be too strict. However, it is not a careless consumer's attention that can distinguish it from the average consumer. Judging from their attention, it may be too wide, and there may be the same or similar trademarks that have been formed. We should choose the most relevant common, common and common concerns of the public as the standard. This involves the judgment of the subject's behavioral ability, which is the subjective standard for identifying the same or similar trademarks in trial practice. In the process of analyzing, judging and adopting relevant evidence as the basis for deciding a case and making evaluation evidence, judges should adhere to the standards that are generally concerned by the relevant public.
Two, accurately grasp the whole, the important part and the comparison method of isolating the same or similar trademarks. According to the law of consumers' perception of trademarks in the market, the overall comparison of trademarks, the comparison of main parts and the division of trademarks are often used in trials and administrative law enforcement practice to judge the similarity of trademarks, especially the similarity of trademarks. (a) the overall comparison, also known as the overall observation and comparison of trademarks, refers to the observation of trademarks as a whole, rather than just comparing the various components of trademarks. This is because the trademark, as the identification symbol of goods or services, is composed of the whole trademark, leaving the overall impression of the trademark in the memory of consumers, rather than being composed of some individual elements that make up the trademark. Therefore, when there are differences in the specific components of two trademarks, but as long as they are integrated as a whole, the resulting overall vision may still mislead consumers, so they should be considered as similar trademarks. On the other hand, if some components of two trademarks may be the same, but they will not mislead consumers as a whole, that is, the overall vision is different, they cannot be considered as approximate trademarks.
(2) The main comparison, also known as the observation and comparison of the main parts of the trademark, refers to the key comparison and contrast of the parts that play the main recognition role in the trademark, which is a supplement to the overall comparison. This comparative method is also based on consumers' specific feelings and memories of trademarks and commodities in the market. Generally speaking, consumers' feelings and deepest memories of trademarks are the main part or important part of trademarks, that is, the part that plays a major role in identifying trademarks. When the main parts of two trademarks are the same or similar, it is easy to cause misunderstanding among consumers, and it can be judged that the trademarks are similar.
(3) Isolation and comparison, also known as trademark isolation and observation and comparison, refers to placing a registered trademark and an accused infringing trademark in different places at different times for observation and comparison, rather than putting two trademarks to be compared together for comparative observation. This is a basic trademark comparison method, and isolation comparison should be adopted for both overall comparison and main comparison. Generally speaking, when consumers are looking for the goods they want, they always look for a certain brand of goods or services in the market according to the trademark impression left in their minds by advertisements for certain goods or services. In the market, goods with different trademarks are generally not placed at the same counter at the same time. In the minds of consumers, in most cases, it is not necessary to compare two trademarks at the same time, but to have trademarks that have been seen in their minds before and compare them with trademarks that they see now.
In the judgment of infringement afterwards, based on the thinking mode of consumers, the possibility and degree of confusion caused by the accused trademark can be more truly reflected by using the method of isolated observation and comparison. Comparing the two trademarks together is different from the actual purchase and transaction of consumers in the market, which may make judges pay more attention to the differences between the two trademarks and cannot accurately judge the possible confusion in the actual transaction of consumers.
Therefore, the basic content of this article in Several Interpretations is to require judges to adopt the above-mentioned comparison methods when identifying trademarks as identical or similar, pay attention to the overall feeling of trademarks to consumers, compare the main parts of trademarks when using them, and compare the accused infringing trademarks with registered trademarks in isolation. Using this method, the judge can judge the infringement more scientifically and accurately, thus ensuring the quality of handling cases.
Third, judge the distinctiveness and well-known elements of registered trademarks in trademark approximation. According to Article 9 of the Trademark Law, a registered trademark should have distinctive features and be easy to identify. Significantness, also known as identifiability, means that when a trademark is used on a commodity or its packaging or service, it can attract the attention of ordinary consumers and distinguish it from other commodities or services. The distinctiveness of a trademark is an important element of a registered trademark, and it is also an important aspect of substantive examination of an applied trademark. For registered trademarks, it should be significant. In practice, there are still different degrees of significance. Some trademarks are very original in design, such as words, pinyin letters and so on. , can be combined into words and meanings that don't actually exist. Belonging to coinage, the accused trademark is similar to "hitchhiking" and easy to identify. For trademarks with weak distinctiveness, it is relatively difficult to judge whether other people's trademarks are similar to their own trademarks.
In addition to distinctiveness, the identification of trademark similarity is also closely related to the popularity of trademarks. Trademarks can be divided into well-known trademarks and non-well-known trademarks according to their influence on society. In well-known trademarks or non-well-known trademarks, the popularity of trademarks has different levels and degrees. Some violators often design well-known trademarks or even trademarks similar to well-known trademarks for their own interests, which will lead to the consequences of diluting other people's well-known trademarks and damaging the legitimate rights and interests of others. Therefore, trademarks with strong distinctiveness and high popularity are easy to be targeted and illegally infringed, and should be given more adequate protection. When judging the similarity of trademarks, we should consider the distinctiveness and popularity of trademarks.