First, it should be judged by the general attention of the public including relevant consumers and operators.
the basic function of a trademark is to make it easy for consumers to identify these goods and services and their sources when purchasing them. The same or similar trademarks also generally occur in the market, which is mainly affected by relevant consumers and specific operators. Therefore, after the trial, the judge should return to this situation and take the attention of relevant consumers and specific operators as the standard when determining that the screening trademarks are the same or similar. This kind of attention is not the attention of relevant experts in this field. If the attention of experts is too professional, the judgment standard may be too strict. However, it is not the attention of a careless consumer who is different from the average consumer. Judging by their attention, it may be too wide, and there may be cases where the already constituted trademarks are the same or similar. We should choose the usual, ordinary and ordinary attention of most relevant public as the standard. This involves the judgment of the behavior ability of the subject, which is also called the subjective standard of identifying the same or similar trademarks in trial practice. In the process of analyzing, judging, adopting relevant evidence as the basis for deciding a case and producing evaluation evidence, judges should adhere to the standard of general attention of the relevant public.
second, accurately grasp the comparison method of the whole, important parts and isolation of the same or similar trademarks. According to the law of consumers' perception of trademarks in the market, trials and administrative law enforcement practices often use the methods of comparing trademarks as a whole, major parts and separating trademarks 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 taking out the various components of trademarks for comparison. This is because a trademark, as an identification symbol of goods or services, is made up of the whole trademark, leaving the overall impression of the trademark in the memory of consumers, rather than some individual elements that make up the trademark. Therefore, when there are differences between two trademarks in their specific constituent elements, but as long as they are integrated as a whole, the resulting overall vision may still mislead consumers, so they should be recognized as similar trademarks. On the other hand, if some components of two trademarks may be the same, but they as a whole will not mislead consumers, that is, the overall vision is different, they cannot be considered as approximate trademarks.
(2) comparison of major parts, also known as observation and comparison of major parts of trademarks, refers to taking out the parts of trademarks that play a major identification role for key comparison and contrast, which is a supplement to the overall comparison. This comparison method is also a method adopted according to consumers' specific feelings and memories of trademarks and commodities in the market. Generally speaking, consumers' feelings and deepest memories of trademarks are the main parts or important parts of trademarks, that is, the parts that play a major role in identifying trademarks. When the main parts of two trademarks are the same or similar, it will easily lead to misunderstanding by consumers, and it can be judged that the trademarks are similar.
(3) isolation comparison, also known as isolation observation and comparison of trademarks, refers to placing a registered trademark and a trademark accused of infringement in different places at different times for observation and comparison, rather than placing two trademarks to be compared together for comparative observation. This is a basic trademark comparison method, and isolation comparison should be adopted in both overall comparison and major comparison. Generally speaking, when consumers look for the goods they want, they always look for the goods or services of a certain brand in the market based on the trademark impression left by the advertising of a certain commodity or service in their minds. In the market, goods with different trademarks are generally not placed in the same counter at the same time. In the consumer's mind, in most cases, there are not two kinds of trademarks to be compared at the same time, but there are trademarks that have been seen in the mind before and compared with the trademarks that are currently seen.
in the judgment of infringement afterwards, the possibility and degree of confusion caused by the accused trademark can be more truly reflected by using this mode of thinking of consumers and adopting 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 the judge pay more attention to the differences between the two trademarks and cannot accurately judge the confusion that may arise in the actual transaction of consumers.