How to judge the similarity of goods and trademarks in trademark infringement Abstract: The exclusive right to use a registered trademark is an exclusive right enjoyed by a trademark registrant according to law. It is a kind of right to the world and belongs to the category of real right. There are various forms of infringement of the exclusive right to use a registered trademark, and the most common one is to use the same or similar trademark on the same kind of goods or similar goods. Key words: exclusive right to use a registered trademark, similar goods and similar trademarks. Trademark, commonly known as the "brand" of goods, is a special symbol to distinguish the goods produced by different producers. The exclusive right to use a registered trademark, referred to as trademark right for short, is the exclusive right of the owner of a registered trademark to control his registered trademark according to law.

The exclusive right to use a trademark and the real right are two kinds of civil rights in parallel, and they have many characteristics in common. For example, they are both rights to the world, and the subject of their obligations is not specific to anyone, and they are all embodied in material interests.

the exclusive right to use a trademark belongs to intellectual property, but in the final analysis, it is still embodied in material interests.

according to the provisions of China's trademark law, trademarks can be divided into commodity trademarks and service trademarks according to the objects they use.

according to the forms of trademarks, they can be divided into word mark, graphic trademarks, digital trademarks, three-dimensional logo trademarks (three-dimensional trademarks), color combination trademarks and comprehensive trademarks of the above elements.

any right should be protected by law, provided that it is legal. The same is true of the exclusive right to use trademarks. As we all know, China's trademark registration is based on the principle of voluntary registration, so China's trademarks include registered trademarks and unregistered trademarks. Only registered trademarks can be protected by law. However, it cannot be understood that as long as the registered trademark is protected by law.

even if a defective trademark is registered, it cannot be protected by law.

In judicial practice, the plaintiff sued the defendant for infringement of his exclusive right to use a trademark. In the lawsuit, the defendant filed a trademark review procedure on the grounds that the plaintiff's trademark infringed on the prior rights of others.

As a result, the plaintiff's exclusive right to use a trademark was revoked in the trademark review procedure, which led to the failure of his claim. The following registered trademarks are defective trademarks. First, the essence of trademarks without distinctive features lies in distinguishing different commodity producers and operators. "Commodities should have distinctive features and be easy to identify".

"distinctive feature" refers to the uniqueness and identifiability of a trademark, which has the function of distinguishing the source of goods. The characters, letters and numbers used in trademarks or their combinations should be novel, concise and eye-catching, and have individual characteristics.

in trademark examination, the Trademark Office should first examine the distinctiveness of trademarks, and trademarks without distinctiveness shall not be registered. Generally speaking, the following trademarks should be considered not to have obvious characteristics: 1. Use commodity names, signs and graphics commonly used in this industry as trademarks; Two, with the words and graphics associated with this product as a trademark; 3. Trademarks are words or graphics that indicate the quality, main raw materials, functions and uses of commodities; 4. Use geographical names as trademarks; Five, the trademark text, graphics are too complicated or too simple text, symbols, for example, with no graphics, dots, lines, drawings, written in ordinary font, two or less numbers or letters.

second, articles 1, 11 and 12 of the trademark law, which use the prohibited marks prescribed by law, stipulate the prohibited marks in trademark registration. Where a trademark is registered in violation of the above provisions, the interested party may request the competent trademark authority to cancel the registered trademark at any time, and the competent trademark authority may also cancel the registered trademark ex officio at any time.

3. Trademarks that infringe upon others' prior rights: trademark exclusive right, enterprise name right (trade name right), name right, copyright, etc.

if a registered trademark infringes upon the prior rights of others, the interested party has the right to apply to the trademark registration authority to cancel the registered trademark within five years from the date of registration of the trademark. There are many forms of trademark infringement. When lawyers handle trademark infringement cases, the most common one is the first paragraph of Article 52 of the Trademark Law, which stipulates that "without the permission of the trademark registrant, they use the same or similar trademark on the same commodity or similar commodity".

to correctly identify the composition of this kind of trademark infringement, it is the key to understand the meaning of the following terms. (1) the meaning of "use". The meaning of the word "use" includes not only the use of trademarks in commodities, commodity packages or containers, but also in commodity trading documents or in product promotion, exhibitions and other commodity activities.

According to the Opinions of the Trademark Office of the State Administration for Industry and Commerce on Several Issues Concerning the Protection of Service Trademarks (March 3, 1999), the use of service trademarks is regarded as the use of service trademarks in the following situations: (1) Service places; (2), service signs; (3), service tools; (4) Business cards, postcards, gifts and other services with service trademarks; (5) Account books, invoices, contracts and other commercial transaction documents bearing service trademarks; (6), advertising and other promotional items; (7) Other articles used for providing services. Except for those with unfair competition intention. Other people's normal use of the customary signs in the service industry, as well as the normal use of trade names (shop names), names, place names, names of service places, expressing service views, explaining service matters, etc., are not regarded as the use of service trademarks. (2) the judgment of "identical goods" and "similar goods". According to the Opinions of the State Administration for Industry and Commerce on Several Issues in Trademark Administrative Law Enforcement, "similar goods" refer to goods that are related or have specific connections in terms of functions, uses, consumers and sales channels. "Similar service" refers to the service that is related or has a specific connection in the purpose, mode and object of the service. Similarity between goods and services refers to the behavior that goods and services use the same or similar trademarks, which easily confuses consumers about the sources of goods and services. Understanding of things is an activity from subjective to objective. Different people will have different understanding results for the same thing, so we must first determine a recognition standard. According to the "Opinions of the State Administration for Industry and Commerce on Several Issues in Trademark Administrative Law Enforcement", similar judgments of goods or services are as follows: 1. Comprehensive judgments are made based on the objective understanding of ordinary consumers on goods or services; 2. The International Classification Table of Goods and Services for Trademark Registration and the Classification Table of Similar Goods and Services are only references for identifying similar goods or services, but they are not the only basis. Since November 1, 1998, China has adopted the International Classification Table of Goods and Services for Trademark Registration determined by Nice Agreement. The table divides goods and services into 42 categories, the first 34 categories are goods and the last 8 categories are services. The purpose of this classification is to standardize the application for trademark registration. The classification of trademark registration application, examination, announcement and registration in the Trademark Register has legal classification significance, but it does not necessarily have strict classification significance in dividing whether goods or services are similar, and it needs to be established with reference to other factors. Some goods in the same category can be identified as similar goods, for example, bleaching powder, detergent and soap in the third category can be identified as similar goods. The thirtieth category of bread, sugar, cakes and syrup can also be identified as similar commodities. However, some in the same category cannot be identified as similar commodities, for example, paper and brushes, which belong to the sixteenth category, will not be confused by ordinary consumers. Goods or services that do not belong to the same category in the classification table, that is, goods or services that belong to different categories respectively, cannot be categorically defined as not belonging to similar goods or services. For example, in the classification table, jelly, jam and candy, honey and syrup belonging to category 3 are easily confused with sweets in the minds of ordinary consumers; For another example, in the classification table, the chemicals used in industry, science and agriculture belong to the first category and the chemicals used in medical science supplies belong to the fifth category. Although they do not belong to the same category, it does not mean that they do not belong to similar commodities. Because for most ordinary consumers who lack professional knowledge in this field, it is very easy to confuse them and think that they are all chemicals. Therefore, when determining whether goods and services are similar, the most important thing is to see whether these goods or services will cause confusion in the minds of consumers. (3) the judgment of the same trademark and similar trademark. Article 9 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes (which came into effect on October 16, 22) stipulates: "The trademark identical as stipulated in Item (1) of Article 52 of the Trademark Law means that there is no visual difference between the trademark accused of infringement and the registered trademark of the plaintiff. Trademark approximation as stipulated in Item (1) of Article 52 of the Trademark Law means that compared with the plaintiff's registered trademark, the font, pronunciation, meaning or graphic composition and color of the trademark accused of infringement are similar or the overall structure or the three-dimensional shape and color combination of its elements are similar, which may easily lead the relevant public to misunderstand the source of the goods or think that its source has a specific connection with the goods registered by the plaintiff. The people's court shall, in accordance with the provisions of Item (1) of Article 52 of the Trademark Law, determine that trademarks are identical or similar, in accordance with the following principles: (1) Taking the general attention of the relevant public as the standard. The so-called "related public" refers to the public who are closely related to the goods using the trademark, such as smokers' registered trademarks on cigarettes; Non-smokers pay little attention to the trademarks on cigarette packages. (2) It is necessary to compare both the whole trademark and the main parts of the trademark, and the comparison shall be carried out separately in the state that the comparison objects are isolated; (3) When judging whether a trademark is similar, consideration should be given to requesting protection of the distinctiveness and popularity of a registered trademark. According to the Opinions of the State Administration for Industry and Commerce on Several Issues in Trademark Administrative Law Enforcement, the judgment of trademark identity or similarity should be as follows: (1) The registered trademark shall prevail, not the one actually used by the trademark registrant; (2) Taking the general attention of ordinary consumers as the subjective standard of identification. Take the method of combining the overall comparison with the comparison of significant parts of trademarks to make a comprehensive judgment. Whether words, letters, numbers and trademarks are similar or not is mainly analyzed and judged from three aspects: font, pronunciation and meaning of words. -glyph. Judging from the font analysis of words, letters and numbers. All kinds of characters have similar glyphs, especially Chinese characters. The shapes of "Tai" and "Qin" in the two trademarks of "Taishan" and "Qinshan" are very similar, so it is easy for ordinary consumers to confuse them without careful identification. When using Chinese phonetic alphabet or English as word mark, it is quite common that the appearance is similar. Over the years, there has been a deliberate use of misspelling or misspelling one of the letters to counterfeit trademarks, which should be paid enough attention to. In word mark, adding individual Chinese characters or letters, changing individual Chinese characters or changing the sequence of characters will cause approximate confusion of trademarks. For example, different operators use "rich", "super rich" and "super rich" on the same commodity. Different manufacturers use the trademarks of "first Mover", "first Mover" and "first Mover shoes" on sports shoes. Some companies use the "Jinlilai" trademark on their ties, which is only one word short of the "Jinlimei" trademark. Some wineries use the "Xinliufu" trademark which is only one word apart from the "Jinliufu" trademark on the packaging of their own liquor. Some manufacturers use the trademark "Sprite" on their own drinks, and the reverse reading is "Sprite". -pronunciation. The pronunciation of words, letters and digital trademarks is the same or similar, which will also cause approximate confusion of trademarks. For example, "Wahaha" and "Wahaha". A tobacco company used the "35" brand as a cigarette trademark to apply for a registered trademark and was rejected by the trademark management department. Obviously, its trademark is different from the "555" brand cigarette which was approved by the British Arthas Tobacco Company in China, but the trademark is exactly the same in pronunciation. -meaning. The same or similar meanings of word mark will also lead to the approximate confusion of trademarks. For example, "Golden Rooster", "Rooster" and "Rooster" have different glyphs and pronunciations, but the impression they give consumers will be similar. The identification of whether the graphic and three-dimensional logo trademarks are similar is mainly from the visual aspect, whether their composition and color are similar, and especially whether they are confused from the perspective of the most prominent and distinctive impression or the overall impression given to consumers. If there are many differences between two graphic trademarks, but the most striking impression or the overall impression to the general consumers is basically the same, it can be judged as approximate. For example, two trademarks composed of mountains and rivers have roughly the same layout, but the peaks are similar in shape and slightly different in height. The length and curvature of the river around the mountain are different. There are five trees and six trees beside the river, which will give the general impression to the general consumers basically the same and can be judged as approximate trademarks. For another example, using the figures of "cat's head" and "tiger's head" as trademarks respectively, drawing the two shapes almost will also cause the similarity of trademarks. In order to recognize the similarity of combined trademarks, it is necessary to synthesize all the components of trademarks and take the overall impression in the eyes of consumers as the basis for judgment. Because the part that occupies a prominent position in the combined trademark often occupies a dominant position in the overall impression left to consumers, it is necessary to focus on whether the part that occupies a prominent position in the combined trademark is similar in practice. Generally speaking, in a combined trademark, the meaning of the text part is clear and easy to call, and it is easier to leave an impression on consumers. Therefore, the text elements in a combined trademark are often more important than the graphic elements. But it can't be absolute. When the graphics in a combined trademark are vivid, eye-catching and prominent, and the characters are in a less obvious position in the whole layout, the approximation of graphic elements becomes the main reason for the trademark approximation. The first paragraph of Article 52 of the Trademark Law actually includes four specific forms of infringement: (1) Using the same trademark as the registered trademark on the same commodity. Without the permission of the trademark registrant, it is obvious to use the same trademark as the registered trademark on the same commodity. This kind of situation is more common in trademark infringement cases, and it is easier for trademark owners to find it. (2) using a trademark similar to a registered trademark on the same commodity. Without the permission of the trademark registrant, it is easy to find and see through the use of the same trademark on the same commodity, while the use of a trademark similar to the registered trademark on the same commodity can confuse the eyes, making it difficult for consumers to judge and thus be deceived. This kind of infringement of the exclusive right to use a trademark is also quite common in practice, and it is generally similar to a famous brand trademark. For example, Shanghai's "White Rabbit" toffee became famous and won a domestic quality award, and people were willing to buy it, while the toffee produced by a candy factory in a certain city was unsalable. Later, a candy factory in a certain city used "White Mouse Brand" as the trademark of toffee. Draw the white mouse like a white rabbit, and the layout and color of the package are the same as those of the "White Rabbit" brand toffee. People mistakenly think it is a "White Rabbit" and rush to buy it. (3) using the same trademark as the registered trademark on similar goods. Similar goods refer to goods that are related or have specific connections in functions, uses, consumers and sales channels. That is to say, in two or more commodities, if different enterprises use the same trademark respectively, consumers will mistakenly think that this commodity is produced by the same enterprise. Therefore, the provisions of this law cannot be used on similar goods.