JOINT-WIN PARTNERS: ​Identification of Approximate Trademark Infringement II

Author: LIU YUE

In the last article, we discussed the important premise of judging approximate trademark infringement, that is, goods and services are similar, and trademarks are the same or approximate. But does the use of approximate trademarks necessarily constitute infringement? The answer is no. Therefore, on the basis of the previous discussion, this paper will further explore the situation that the use of similar trademarks constitutes infringement.

An approximate trademarks is an infringement only if it is used on the same or similar goods and is easy to cause confusion. Trademark approximation in the sense of trademark law is a kind of confusion approximation, that is, no matter whether the trademark logo is an approximation in physical sense or an approximation in the natural state, it can be considered as trademark approximation in the sense of trademark law as long as it constitutes market confusion. It can be seen that trademark approximation in the sense of trademark law is obviously different from that in daily understanding, and its meaning is defined in the sense of stopping trademark infringement. The purpose of giving the exclusive right to use a trademark by law is to distinguish the source of goods and protect the virtual wealth of independent innovation. The scope of protection is only limited to registered trademarks and approved goods. The goods using trademarks are not the goods approved by registered trademarks, which generally do not infringe the protection scope of trademark rights and do not constitute infringement. Therefore, similar trademarks do not necessarily identify infringement. Confusing judgment elements are:

1.Take the Level of General Concern of the Relevant Public as the Standard.

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. This requires that the relevant public must be related to a commodity or services, rather than from the perspective of people who have nothing to do with the commodity or services. General concern refers to the degree of attention given by consumers or potential consumers as a whole. In business activities, it is generally noticed that consumers will have different perceptions of a commodity or service according to different factors such as personal hobbies, education level and life experience. If you have never come into contact with or even know a commodity or service, it is not important for the subject whether a trademark are similar, because the subject has no possibility of becoming the relevant public of the commodity. Therefore, in the process of identification, the standard of general attention of the relevant public is emphasized, that is, the relevant public with general social and life experience should pay general attention, not the standard of professionals in this field or people below the general level. Protecting the interests of consumers, producers and operators is one of the legislative purposes of trademark law. Generally, the same or similar trademarks will appear in the market, and the main victims are consumers and specific operators. Therefore, when the screened trademarks are identified as the same or similar, the judgment attention should also return to this situation, and the attention of relevant consumers and specific operators should also be taken as the standard. Therefore, when identifying trademarks as the same or similar, we should look at them from the perspective of people related to a certain type of goods or services.

2.Subjective Intention of the Trademark Applicant.

First, the trademark user's failure to fulfill his duty of care is one of the subjective criteria to determine whether it constitutes infringement. Compared with other rights, business signs are always related to people's subjective cognition, so it is difficult to form a definite objective standard. Similar to trademark infringement, the principle of presumption of fault applies, and the user must prove that he has fulfilled his duty of care as a general market participant before he can be exempted. Second, the trademark owner's subjective no-fault is also one of the criteria. Where the obligee expressly agrees or acquiesces in others' use of similar business marks, or neglects to exercise his rights, resulting in the expiration of the exercise period, the infringement can not be established.

3.The Salience and Popularity of the Registered Trademark.

The degree of trademark rejection is in direct proportion to its popularity and significance. The higher the popularity and distinctiveness of a trademark, the wider the scope of protection provided by law, which is in line with the judicial policy of proportional protection of intellectual property rights. The more prominent the trademark is, the more likely it is to leave a deep impression on people. The more well-known and familiar a trademark is. Therefore, when others use the same or similar trademarks on the same or similar goods, it is easier for people to mistakenly think that there is a relationship between goods or services, which is more likely to lead to market confusion. In most cases, most of the trademarks that need to be protected have formed a certain popularity in the industry fields where the trademark is approved, which leads to confusion, including not only consumers' confusion about the source of goods and services, but also misunderstanding that other people's goods are related to registered trademarks. The reason for this connection is that the influence of the trademark will expand or shift in the actual use of trademark, making consumers think that the trademark operator have the potential or possibility to expand the market.

4. Observation in Isolation.

When comparing an alleged infringing trademark with the registered trademark, the two trademarks should be compared separately instead of being observed and compared together. This is because it is generally impossible for consumers to take the goods they bought last time when shopping, and compare the trademarks with the trademarks of the goods they want to buy, but only rely on the inaccurate general impression of the trademarks in their minds. Therefore, although there are differences between the two trademarks, if they leave a similar impression after observation in isolation, they should be considered as similar trademarks. Of course, in judicial practice, it is inevitable that the accused infringing trademark will be compared with the registered trademark. The legal provisions are more of a fictional provision, which makes the referee not only pay attention to the trademark from the perspective of the relevant public, but also compare the two trademarks in isolation as much as possible, with the aim of restoring them to the real shopping scene as much as possible to determine whether there is a possibility of market confusion caused by similar trademark.

5. Overall Comparison and Comparison of Major Parts.

Signs that can be registered as trademarks include words, graphics, letters, numbers, three-dimensional signs, color combinations and sounds, as well as combinations of the above elements. Therefore, a trademark can be made up of a single element, such as words and letters, or many different elements, such as words and graphics. In a trademark composed of different elements, it depends on whether the different elements of the two trademarks give a similar impression on the whole because of their arrangement order and position, and whether the main part and the most prominent part of the trademark leave a similar impression on people. Even if a trademark consists of a single element, it will have its main part and the most prominent part.

With the development of market economy, as a part of enterprise strength, intellectual property should develop healthily. We should build our own corporate brand as soon as possible, and remember not to deliberately use the same or similar logo as others' licensed trademarks to confuse the audience and the market, so as to achieve our own profit, otherwise we may bear corresponding legal responsibilities.