Problem Of Identification Of Trademark Infringement

With the social and economic development, trade mark has become an important component of corporate intangible assets, the tremendous value attracted a lot of interests to pursue, they hesitate to take risks, put up a lift of another’s trademark the tort way also show a complex trend. Trademark infringement cases in China endless manifestations to gradually shift more hidden advanced form of the simple form of direct fake One important reason is that the relevant system of trademark infringement in China there is a gap, identified how to trademark infringement very important. Only accurate to assume that the trademark infringement, in order to effectively crack down on trademark infringement and to protect the legitimate rights and interests of trademark owners care, provide an institutional guarantee for the normal operation of the socialist market economic order and the legal basis. In this article, the author attempts to combine China’s Trademark Law, Trademark Law of the implementation of the provisions of the Ordinance and its judicial interpretation of the problem of identification of trademark infringement.Starting from an overview of trademark infringement, the definition of trademark infringement, features, and trademark infringement under the provisions of section52of the Trademark Law is divided into five types, namely the use of trademark infringement, the sale of trademark infringement, making and selling the logo type trademark infringement, the reverse counterfeit trademark infringement and trademark infringement. Existing trademark law there is no clear provisions dilute the trademark infringement, but this type of trademark infringement, an increasing number, and elements unique to this paper will dilute the trademark infringement and separate out separate focus to study. Trademark infringement due to the sale, manufacture and sale of logo trademark infringement found a more simple and clear, therefore, the author focuses on the use trademark infringement, the reverse counterfeit and trademark infringement, dilute the trademark infringement identified for study.The use of trademark infringement occur more frequently and identified the complex in practice, the author clearly put forward the "confusion" that it is the use of trademark infringement constitute the core elements of the meaning of "confusion" and its expansion were analyzed on this basis. Similar marks and similar items that it is the more complex issues of trademark infringement identified practice is not only an indispensable part of each trademark infringement cases, and plays a critical role for the entire case of the penalty, the author focuses on more in-depth study on the identification of similar mark, similar goods. Approximate trademarks in principle, I asked the principle to be followed by the general attention of the relevant public, trademark significantly to the principle of trademark well-known principles. Identified, in addition to the general isolation of Comparative Law, Comparative Law as a whole, the main part of France, in principle,"Trademark Registration" on the mark for comparison object, but in some cases, rights holders can choose to trademarks prevail on the Registration Certificate, or the actual use of the trademark; similar goods identified in principle, to adopt the principles identified in the "cases, the principle of general awareness of the relevant public, the trademark well-known principle. Identified with reference to the "commodity classification" and "trademarks distinguish the table, and determined that the objective elements of commodity-related and identified the method of similar goods to related to the competitiveness of commodities.With the rapid development of economy, trademark infringement is increasingly complex, diverse, reverse counterfeit trademark infringement in this context of use, from the reverse passing-off type trademark infringement definition, characteristics, on the basis of reverse counterfeit trademark infringement clearly pointed out that the character is a trademark infringement. Because of reverse counterfeit trademark infringement by means of special type, the standard also differs from the use of trademark infringement cognizance standard, therefore the author puts forward reverse counterfeit trademark infringement should be used in the" counterfeit" theory. Counterfeit trademark infringement is actually on the constitutive requirements of the study, namely the trademark reverse passing-off from being, sham commodity have been reversed in the minds of consumers to establish credibility, reverse sham false statements source of goods, because the reverse passing-off of false statements cause consumer confusion and reverse counterfeit is required because of the false statement and damage.Due to trademark infringement by means of concealment, progressive, desalination of trademark infringement is ceaseless grow in quantity, but there was no clear legal provisions. The author first from desalination type trademark infringement of the definition, characteristic, on this foundation pointed out clearly desalination trademark infringement is a trademark infringement. Because desalination type trademark infringement modality specificity, the use of type of trademark infringement" confused" theory was not applicable for desalination type trademark infringement cognizance standard, therefore, the author puts forward in the desalination of trademark infringement should be used in the" dilution" theory. Desalination of trademark infringement is actually on the constitution judgment of trademark dilution, namely the object as a well-known trademark, behavior for commercial purposes of well-known trademark, trademark dilution is not the actual damage to the elements and does not require the behavior person has subjective fault.Trademark infringement in China identified the status of the system and improve the innovation of this paper and focus are not uniform standards for our use of trademark infringement, the judge discretion, may result in trademark infringement dispute the results of unfair and dilute trademark infringement in the current law there is no clearly defined legislative status quo, the author proposes a modification of the Trademark Law shall determine the use of trademark infringement,"likelihood of confusion" recognized standards, as well as the establishment of China’s trademark anti-dilution system.