Legal subjectivity:

Article 63 of the Trademark Law stipulates that the amount of compensation for infringement of the exclusive right to use a trademark shall be determined based on the actual losses suffered by the right holder due to the infringement. ; If the actual loss is difficult to determine, it can be determined based on the benefits obtained by the infringer due to the infringement; if the loss of the right holder or the benefits obtained by the infringer is difficult to determine, it can be determined reasonably by referring to a multiple of the trademark license fee. For malicious infringement of trademark exclusive rights and the circumstances are serious, the amount of compensation may be determined to be not less than one time but not more than five times the amount determined according to the above method. The amount of compensation should include the reasonable expenses paid by the right owner to stop the infringement. In order to determine the amount of compensation, the people's court may order the infringer to provide the account books and materials related to the infringement if the right holder has tried his best to provide evidence and the account books and materials related to the infringement are mainly in the possession of the infringer; the infringer fails to provide Or if false account books or information are provided, the people's court may determine the amount of compensation with reference to the rights holder's claims and the evidence provided. If it is difficult to determine the actual losses suffered by the right holder due to the infringement, the benefits obtained by the infringer due to the infringement, and the registered trademark license fee, the people's court shall award a compensation of not more than five million yuan based on the circumstances of the infringement. When hearing trademark dispute cases, the People's Court shall, at the request of the obligee, order the destruction of goods belonging to counterfeit registered trademarks, except in special circumstances; and order the destruction of materials and tools mainly used to manufacture goods with counterfeit registered trademarks without compensation. ; Or under special circumstances, be ordered to prohibit the aforementioned materials and tools from entering commercial channels without compensation. Goods with counterfeit registered trademarks shall not enter commercial channels after only removing the counterfeit registered trademarks. 1. Fees must be paid when applying for trademark registration and handling other trademark matters. It is a common practice internationally to require parties to pay fees when handling trademark matters. This is because trademark registration, management, and review authorities need to pay a lot of costs when reviewing trademark registration applications or handling other trademark matters. In addition, it stipulates that fees should be paid when handling trademark matters, that is, requiring trademark owners to pay a certain cost when obtaining and protecting their trademark rights, which will help trademark owners to more actively maintain the quality of their goods and services using registered trademarks. and reputation, and protect its trademark exclusive rights from infringement by others. 2. The specific charging standards for handling trademark matters will be determined separately. Since there are many steps in trademark registration, management and re-examination, which businesses are more suitable to pay fees and how to set the standards for charging fees are more complicated. In addition, charging standards also need to be adjusted as the situation changes, so it is more appropriate not to make specific provisions in this law. Therefore, this article stipulates that the specific fee standards for applying for trademark registration and handling other trademark matters will be determined separately. According to the current actual practice, the fee standards for applying for trademark registration and handling other trademark matters are jointly formulated by the State Planning Commission and the Ministry of Finance. They mainly include fees for accepting trademark registrations, accepting transfers of registered trademarks, and accepting trademark renewal registrations. Fees, trademark review fees, trademark certification fees, trademark opposition fees, trademark cancellation fees, trademark license contract filing fees, etc. Trademarks can be divided into eight categories according to different standards and perspectives. 1. According to the composition of trademarks, they can be divided into word trademarks, graphic trademarks, and graphic and text combination trademarks; 2. According to the use and function of trademarks, they can be divided into commodity trademarks or service trademarks; 3. According to the owner of the trademark , classified according to different users, it can be divided into manufacturing trademarks, sales trademarks, and collective trademarks; 4. Classified according to the management of trademarks, generally divided into registered trademarks and unregistered trademarks; 5. According to the use of trademarks by trademark users According to the motive of use, it can be divided into joint trademarks, defensive trademarks and certification trademarks; 6. According to the meaning of the trademark, it can be divided into meaningful trademarks and non-meaningful trademarks; 7. According to the way of using the trademark, it can be divided into Main trademark, sub-trademark, product group trademark, specific product trademark; 8. According to the carrier classification of the trademark, it can be divided into two-dimensional trademarks, three-dimensional trademarks, audio trademarks and scent trademarks; legal objective:

From this article Judging from the expression, among the four elements of the same kind of goods, the same trademark, similar goods, and similar trademarks, at least four relationships involving trademark infringement are formed: the application of the same trademark on the same kind of goods without permission; the application of the same trademark on the same kind of goods without permission; Apply similar trademarks to similar goods; apply the same trademark to similar goods without permission; apply similar trademarks to similar goods without permission.

It should be noted that these four relationships are not types of trademark infringement. The key to judging trademark infringement still lies in whether it constitutes "confusion" or "risk of confusion." Therefore, the correct logic for applying Article 57 of the Trademark Law is: "Using the same trademark on the same kind of goods without permission" is presumed to be sufficient to cause confusion and constitute infringement, unless there is evidence to the contrary; "using the same trademark on similar goods without permission" "Using the same or similar trademark on similar goods" does not necessarily lead to confusion; "using the same or similar trademark on similar goods without permission" will only constitute trademark infringement if it is enough to cause confusion. At the same time, in the identification of "same kind of goods" and "similar goods", the Nice Classification and the "Classification List" can be effectively used as the basis for objective presumption: goods that belong to the same kind in the Nice Classification and the "Classification List" are presumed to constitute "Same kind of goods", unless there is evidence to the contrary; goods that are similar in the Nice Classification and the "Schedule of Classification" are presumed to constitute "similar goods", except where there is evidence to the contrary; contrary evidence indicates that the disputed trademark involves Evidence that goods are deemed to constitute "the same kind of goods" or "similar goods" due to their functions, uses, production departments, sales channels, consumption targets, competition or substitution relationships, etc. Article 57 of my country’s Trademark Law stipulates that “without the permission of the trademark registrant, a trademark that is identical to its registered trademark is used on the same kind of goods”, “a trademark similar to its registered trademark is used on the same kind of goods, or similar goods are used on similar goods. "Using a trademark that is identical or similar to its registered trademark on the Internet and is likely to cause confusion" constitutes trademark infringement. Article 57 of my country’s Trademark Law stipulates that “without the permission of the trademark registrant, a trademark that is identical to its registered trademark is used on the same kind of goods”, “a trademark similar to its registered trademark is used on the same kind of goods, or similar goods are used on similar goods. "Using a trademark that is identical or similar to its registered trademark on the Internet and is likely to cause confusion" constitutes trademark infringement. Among them, there are always logical problems in the identification of "similar goods" and the "confusion" theory of trademark infringement. This article will not be superficial and discuss the correct logic of identifying "similar goods" (including services), in order to seek advice from the Fang family. In the "confusion" theory of trademark infringement, "confusion" specifically refers to consumers' misunderstandings about the source or related aspects of goods or services. Article 11 of the Supreme People's Court's "Interpretations on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Cases" (Fa Interpretation [2002] No. 32) defines "similar goods" as "similar goods in terms of functions, uses, production departments, sales channels, and consumer objects". "Goods that are identical in other aspects, or the relevant public generally believes that they have a specific connection and are likely to cause confusion." Therefore, "confusion" has emerged as the standard for identifying "similar trademarks" and it is believed that "confusion is the basic principle for identifying 'similar goods'" There are many judgments in judicial practice that support the use of "confusion" as the standard for determining whether "similar goods" are constituted. However, using "confusion" as the criterion for determining "similar goods" involves serious logical loops and inversion of cause and effect: the determination of confusion depends on whether the goods or services are similar; confusion is also a criterion for measuring whether the goods or services are similar. Some scholars try to solve this logical problem by distinguishing the objects of "confusion". They believe that "'confusion' when identifying 'similar goods' refers to confusion about the source of goods, while 'confusion' when identifying trademark infringement refers to the use of goods." "Confusion about value", but the problem is that it is sometimes difficult to distinguish between "confusion about origin" and "confusion about use value of goods". Moreover, it is easy to use confusion about "origin" as the single criterion for "similar goods". It ignores the functions, uses, production departments, sales channels, and consumer objects of the goods that can affect whether the trademarks are similar. The key to solving the above logical problem is to regard "similar goods" and "confusion" as factors to be considered when determining trademark infringement, and make it clear that "confusion" is the criterion for determining trademark infringement, not "similar goods". In fact, "similarity of trademarks and similarity of goods is not a yes or no concept, but a matter of degree." In the identification of "similar goods", if "similar" or not is a question of "yes" or "no", then the judgment from "similar goods" to trademark infringement is a question of objectivity and typing, that is, as long as there is no The use of the same or similar trademark on similar goods with permission constitutes infringement. If "similar goods" is only one of the factors for determining trademark infringement, then the "similar goods" between goods will only increase the possibility of confusion, but will not definitely lead to confusion, nor will it necessarily establish trademark infringement.

Whether it constitutes trademark infringement ultimately depends on whether there is evidence to prove that there is "actual confusion" or "risk of confusion." In U.S. judicial practice, many cases have regarded “confusion” as the criterion for trademark infringement rather than “similar goods”. According to Article 12 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Trademarks, the International Classification of Goods and Services for Trademark Registration (hereinafter referred to as the Nice Classification) and the Classification of Similar Goods and Services (hereinafter referred to as the "Distinction Table") is a "reference" for identifying "similar goods", not a basis. Another meaning of "reference" is that in judicial proceedings, the Nice Classification and the "Schedule of Distinction" can be regarded as objective standards for inferring that the goods are similar, that is, if the goods involved in the trademark in dispute belong to similar groups in the Nice Classification and the "Schedule of Distinction" , are presumed to constitute similar goods, unless there is other evidence to prove that the goods involved in the disputed trademark are not similar goods. The value of clarifying this point in judicial proceedings is: first, it increases the certainty and predictability of trademark infringement judgments and enhances judicial credibility. If the judgment of "similar goods" relies entirely on subjective standards, different judges will have different perspectives, making the judgment of "similar goods" full of subjectivity, and "similar goods" is one of the important factors in determining trademark infringement. The subjectivity of the judgment of "similar goods" will increase the certainty and predictability of trademark infringement judgments, making judicial judgments of trademark infringement a "chameleon" in the eyes of the public, thereby affecting judicial credibility. Second, improve judicial efficiency. To rely entirely on subjective standards to identify "similar goods", the judge needs to judge one by one the many factors that affect the determination of "similar goods" during the trial process. However, if the Nice Classification and the "Schedule of Distinction" are regarded as the presumption that the goods constitute similar objective Standard, in the absence of other evidence, the judge can directly make an inference based on the Nice Classification and the "Schedule of Classification". Treat the Nice Classification and the "Schedule of Classification" as objective standards for presuming "similar goods" and deny the subjective standards for identifying "similar goods". On the contrary, the determination of "similar goods" ultimately depends on multi-faceted and comprehensive subjective standards. In our country's judicial practice, many judgments have focused on the "functional auxiliary or complementary nature", "the relationship between matching or supporting use", "the relationship between products and parts", "the relationship between raw materials or tools", "the relationship between commodities", "Competitive relationship between goods" and other aspects to determine "similar goods", these are subjective standards worth learning from. At the same time, the application of subjective standards for identifying "similar goods" can also refer to the following points: First, the higher the degree of similarity of the goods, the easier it is to cause confusion among consumers. The higher the similarity between the products in dispute, the greater the possibility of confusion among consumers, and the probability of determining that the infringement is established increases accordingly. At the same time, the higher the similarity between the goods in dispute, the plaintiff’s proof of other factors that affect the subjective judgment of “the possibility of causing consumer confusion” will be reduced accordingly. Secondly, the determination of “similar goods” itself should not take into account the well-known degree of the disputed trademark. "Similar goods" is one of the factors considered in the determination of trademark infringement, and the well-known degree of the trademark in dispute is also one of the factors considered in the determination of trademark infringement. The two factors simultaneously affect the determination of trademark infringement, and there is no causal relationship. The higher the fame of the disputed trademark, the greater the possibility of confusion among consumers. This has nothing to do with the similarity of the disputed goods. It is not appropriate to use the fame of the disputed trademark to expand the scope of similar goods. In addition, my country adopts cross-class protection for registered well-known trademarks. If the scope of "similar goods" can be expanded based on the popularity of the trademark, then cross-class protection of well-known trademarks will be meaningless.