With the advent of the knowledge economy in the new century, intellectual property issues have been placed in a very important position. Trademarks are an important part of intellectual property and an important symbol of enterprise and even economic development. It is difficult to create a famous brand trademark, but it is even more difficult to protect it because of the similarity of the trademarks. Article 52, Paragraph 1, of the Trademark Law of the People's Republic of China stipulates: "Without the permission of the trademark owner, no trademark that is identical or similar to the registered trademark may be used on the same type or similar goods." Among them. , "Identical trademarks" are trademarks that are exactly the same without any difference. However, there are no clear provisions in the "Trademark Law" and its "Implementing Rules" on how to define similar trademarks. They were only implemented on October 16, 2002. The "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases" stipulates: (1) The general attention of the relevant public should be used as the standard; (2) Both the overall comparison of trademarks and the comparison of trademarks must be carried out. For comparison of the main parts of the trademark, the comparison should be conducted separately with the comparison objects isolated; (3) The distinctiveness and popularity of the registered trademark requested for protection should be taken into consideration.
The proposal of these identification principles is undoubtedly a huge progress. However, in recent years, illegal phenomena of "free riding" and "famous brand" have been emerging in my country. It is still very difficult for courts and industrial and commercial administration agencies at all levels to deal with specific cases of trademark infringement and trademark opposition. Moreover, even if they are handled, cases with the same facts often have completely different results. Why is this? The reason is that there are no unified, specific and clear regulations in our country’s laws regarding the standards for identifying similar trademarks.
Although Article 9, Paragraph 2 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases" refers to the meaning of similar trademarks, that is, "refers to the trademark accused of infringement and the plaintiff's registered trademark." In comparison, the glyphs, pronunciations, and meanings of the characters, or the composition and color of the graphics, or the overall structure of the combination of elements is similar, or the combination of three-dimensional shapes and colors is similar, which may easily cause the relevant public to misunderstand the source of the product or think that it is the source of the product. The "misidentification" standard proposed in "Has a specific connection with the goods for which the plaintiff's registered trademark has a specific connection" can guide the identification of similar trademarks. However, my country's Trademark Law and relevant interpretations do not provide specific provisions on "misidentification". In specific judicial practice, judges or heads of industrial and commercial administration agencies, except for individual occasions, often do not make judgments by conducting questionnaire surveys on a large number of unspecified groups of people and ultimately considering the actual degree of misunderstanding among the relevant public, but purely rely on to their subjective judgment. In other words, judicial officers ultimately make their own independent judgments by simulating the cognitive abilities of the relevant public. Due to the uneven quality of judges, they will have different understandings of the three principles for determining similar trademarks and the "misidentification" standard. Therefore, they will naturally use different standards when hearing cases. Therefore, the same case will be heard differently. The results are not surprising.
Unscrupulous businessmen make illegal profits by copying well-known trademarks, which not only harms the legitimate interests of trademark owners, but also has a negative impact on my country's equal market competition environment. It harms the legitimate rights and interests of consumers. If our country does not establish objective, reasonable, accurate and consistent standards for the identification of similar trademarks, then the illegal behavior of using similar trademarks to skirt around the edges will continue to be prohibited. Moreover, joining the WTO means that Chinese companies will not only face domestic companies, but also a large number of foreign companies that are quite familiar with intellectual property laws. If my country’s standards for identifying similar trademarks are still not specific and objective, domestic companies will Blind spots and misunderstandings about the law may lead to unnecessary lawsuits or losses. Therefore, the author writes this paper with the idea of ??"worrying about others", hoping to have a more systematic, comprehensive and objective discussion on the identification standards of similar trademarks, and provide guidance for our country's judicial system. The agency's handling of "sideline" cases involving similar trademarks serves as a certain reference. It should be said that the author's research on this issue has certain practical significance.
The issue of trademark similarity determination standards has also attracted the attention of some domestic scholars and judicial personnel. Discussions and research on this issue have also begun to be extensive and in-depth. These research results will undoubtedly have a positive effect on the judicial community. , and at the same time it has a very important reference value for the author to write this paper.
However, the author has noticed that due to the different identities and writing purposes of the researchers, the discussion and research on these issues have different focuses. Some of them are highly theoretical, but lack specific cases and analysis, which is not conducive to the public's understanding of approximate Understanding and identification of trademarks; some are very practical and have specific typical cases, but they only list a certain type of similar trademarks, lacking specific analysis, and do not analyze the problems from a macro perspective; some although they are divided into categories However, the analysis of the problem is not in-depth enough and lacks integrity and systematization. Therefore, the author sorts and improves it based on the existing research results of others. The author adopts a method that combines theory and practice, highlighting the method of case analysis, and conducts a comprehensive and specific study on the identification standards of similar trademarks from a macro perspective. The people's court determined that trademarks are similar according to the following principles:
(1) The general attention of the relevant public is used as the review standard;
(2) It is necessary to conduct an overall comparison of the trademarks, It is also necessary to compare the main parts of the trademark, and the comparison should be conducted separately in a state where the comparison objects are isolated.
(3) To determine whether the trademarks are similar, the distinctiveness and popularity of the registered trademark requested for protection should be considered.
(4) The trademark is used on the corresponding product. Articles 9 and 10 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases".
According to the provisions of the "Trademark Examination Standards" of the State Administration for Industry and Commerce, trademark similarity refers to the similarity in the glyphs, pronunciations, and meanings of trademark words, the composition, coloring, and appearance of trademark graphics, or the similarity between text and graphics. The overall arrangement and appearance of the combination are similar, the shape and appearance of the three-dimensional mark of the three-dimensional trademark are similar, the color or color combination of the color trademark is similar, and the use of the same or similar goods or services will easily make the relevant public aware of the source of the goods or services. cause misunderstanding.
The determination of similar trademarks is similar to the determination of identical trademarks. First, it should be determined whether the designated goods or services belong to the same or similar goods or services; secondly, the shape, sound, meaning and overall expression of the trademark itself should be considered. In other aspects, the general attention of the relevant public is used as the standard, and the method of overall observation and comparison of the main parts is adopted to determine whether the trademark mark itself is similar. Specifically, there are three forms of trademark review: review of word trademarks, review of graphic trademarks, and review of combination trademarks.