JOINT-WIN PARTNERS: Identification of Approximate Trademark Infringement I
Identification of Approximate Trademark Infringement I
LIU YUE
A trademark is a symbol used to identify and distinguish the source of goods or services. The origin of trademarks can be traced back to ancient times. Artisans printed their own signatures or "marks" on their own works of art or practical products to distinguish them from others' products. Today, this kind of commodity trademark has evolved into a worldwide trademark registration and protection system, and it continues to play its basic function of identifying the source of goods or services. Article 57 of the Trademark Law of People's Republic of China (PRC) stipulates seven acts of infringing on the exclusive right to use a registered trademark, of which the first two acts involve related provisions of identical or similar trademarks: using a trademark identical to its registered trademark on the same commodity without the permission of the trademark registrant; Without the permission of the trademark registrant, using a trademark similar to its registered trademark on the same kind of goods, or using a trademark identical with or similar to its registered trademark on similar goods, is easy to cause confusion, and it is an acts of infringement of the exclusive right to use a trademark, collectively referred to as approximate trademark infringement.
From the chart summarized above, unauthorized use of other people's trademarks is the premise of this article. If the use is approved by the trademark owner, it does not involve similar trademark infringement issues. The determination of approximate trademark infringement mainly involves two aspects. The identity or similarity of goods or services is the first step to judge whether it constitutes approximate trademark infringement, and the other step is the identification of trademark identity or similarity.
I. The Judgement of Goods and Services
1． The Goods or Services are Identical
It means that the goods or services approved by the registered trademark claiming rights belong to the same category as the goods or services used by the accused infringing mark.
2．The Goods or Services are Similar
1) Similar goods refer to goods that are identical in functions, uses, production departments, sales channels, consumers, etc. Or are generally considered relevant and easily confused by the relevant public.
2) Similar services refer to services that have the same purpose, content, methods and objects, or services that are generally considered by the relevant public to have specific connections and are easily confused.
3．How to Understand ‘The Public Concerned’
Relevant public refers to consumers related to a certain kind of goods or services identified by trademarks and other operators closely related to the marketing of the above-mentioned goods or services. It should be noted that different factors, such as the nature, type and price of the goods marked by trademarks, have different influences and concerns on the relevant public. Generally speaking, daily necessities should be relevant to ordinary consumers, who may buy them at first sight. And high-value goods, such as cars, houses, etc., are much higher than the standard of attention when purchasing daily necessities.
4．The Method of Judging The Similarity of Goods or Services
In general, related commodities can be identified as similar commodities if they belong to one of the following circumstances: commodities with the same function and use; The functions and uses of commodities are auxiliary or complementary, and are easily mistaken for related commodities or series of commodities; Commodities that are collocated when used; Commodities with corresponding relations between raw materials and finished products or between parts and finished products; Commodities with the same or similar sales channels, sales places and sales objects or commodities generally produced and sold in the same industry or field.
II. Identification of Identical or Similar Trademarks
1. Identification of Identical Trademarks
The identification of trademark identity is relatively clear, which means that two trademarks are visually identical or basically indistinguishable, which is easy for consumers to misunderstand. Changing the color and font of trademarks will not overturn the identification that they are the same trademarks.
2. Identification of Trademark Approximation
1) Identification of elements of trademark approximation
Trademark approximation means that compared with the plaintiff's registered trademark, the trademark accused of infringement has similar font, pronunciation, meaning, graphic composition and color, or the overall structure after the combination of its elements, or its three-dimensional shape and color combination, which is easy for the relevant public to misunderstand the source of goods or services or think that its source has a specific connection with the goods or services registered by the plaintiff. The elements of trademark approximation can be identified by the elements of trademark stipulated in the Trademark Law, mainly in three aspects: appearance approximation, trademark pronunciation approximation and trademark meaning.
a. Similar Appearance of Trademarks. Observe the visual images of words, graphics or their combinations of two trademarks from the perspective of ordinary consumers to see if they can cause misunderstanding or confusion.
b. Trademark pronunciation is similar. Judging from people's hearing, are these two trademarks confused because of their similar pronunciation. For example, the plaintiff's registered trademark is "Casio", which has been approved for registration on all 45 categories of goods and services. The trademark applied by the defendant was "KAXIOU". Through the plaintiff's long-term use and publicity, his "Casio" trademark and its Chinese translation have gained high reputation. And "KAXIOU" is also the Chinese phonetic alphabet of "Casio", so it is easy for the relevant public to associate "KAXIOU" with "Casio". Therefore, the defendant's use of the "Casio" trademark is easy to mislead the relevant public, so the defendant's use of the "Casio" trademark is similar to the plaintiff's registered trademark "Casio", and finally the defendant was awarded compensation of 100,000 yuan.
c. The trademark meaning is similar. Analyze whether the two trademarks have the same or similar meanings, which leads to consumers' confusion about the source of goods.
Due to the limited space, in the next article, we will discuss whether the trademark are easy to cause confusion, which is another important condition to constitute similar trademark infringement under the premise mentioned in this article.
