Article 1 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation" (hereinafter referred to as the "Opinions") stipulates:? For trademarks that have been used for a long time, have established a high market reputation and A disputed trademark that forms a relevant public group should accurately grasp the legislative spirit of the Trademark Law regarding the coordination of protecting the rights and interests of prior commercial marks and maintaining market order, and fully respect the market reality that the relevant public has objectively distinguished the relevant commercial marks. Pay attention to maintaining the established and stable market order. ?

In practice, considering the use of the trademark, one of the typical cases that allows the existence of trademarks with similar trademark logos is (France) Lacoste Co., Ltd. and (Singapore) Crocodile International Institutions Pte. Ltd. There is a dispute between the company and (Hong Kong) Crocodile T-shirt Co., Ltd. regarding the crocodile graphic trademark and related word trademarks. In addition, the following cases were heard because it was considered that the disputed trademark has gained a certain degree of popularity through long-term use, and it was determined that its existence in the market with the cited trademark would not easily cause confusion among the relevant public and did not constitute a similar trademark.

This article believes that, on the one hand, based on the legislative purpose of Article 30 of the Trademark Law "Prohibition of Confusion", the judgment of trademark similarity should be based on whether it is likely to cause confusion, even if the mark of the disputed trademark is It is relatively similar to the cited trademark. If the disputed trademark has gained high popularity after long-term use and formed a stable market order, and the relevant public can distinguish it from the cited trademark without causing confusion, it should be determined that the disputed trademark is different from the cited trademark. The cited trademark does not constitute a similar trademark and is allowed to exist.

However, on the other hand, the judgment standards and evidence requirements for "a stable market order has been formed" should be strictly grasped, and the relevant provisions in the aforementioned Supreme Court "Opinions" should be regarded as individual exceptions for the judgment of trademark similarity. application, and should not arbitrarily lower the standards or expand the application, especially in the trademark registration review and opposition procedures, it should be applied with caution. The specific reasons are: First, my country’s Trademark Law implements a trademark registration system. In order to avoid conflict with other people’s previously registered trademark rights, civil subjects should make reasonable avoidance when applying for registration and use of a trademark to try to eliminate confusion about commercial marks. possibility, the publicity of trademark registration also provides sufficient protection for reasonable avoidance.

For unregistered trademarks that are still in the trademark registration review and opposition procedures, unless the evidence on record can prove that it has been continuously used to form a stable market order before the date of application for registration of the cited trademark. ? Without causing confusion, a request to obtain the existence of a similar trademark mark based on evidence of use after the registration date of the cited trademark application shall not be supported from the perspective that the applicant has failed to exercise reasonable care and avoidance obligations, otherwise the law The rights space reserved for prior trademark registrants will become a battlefield for the weak and the strong, which will seriously deviate from the system design of my country's Trademark Law to encourage registration and prohibit confusion.

Secondly, in practice, even if the disputed trademark and the cited trademark with similar signs have existed in the market for a long time and have established a high market reputation, it does not necessarily exclude the relevant public from having negative opinions about the two trademarks. There is a possibility of confusion, and its market reputation may be generated and established by the relevant public's belief that the two belong to the same company or have a specific relationship and are interdependent.

Therefore, it cannot be concluded based solely on the evidence of use and popularity of the disputed trademark submitted by the registrant of the disputed trademark application that a stable market order has been formed and the relevant public can distinguish it from the cited trademark. conclusion. The applicant for the disputed trademark should also provide evidence to prove that the relevant public will not confuse the disputed trademark with the cited trademark.