A Study On Judging Criteria Of Trademark Infringement In Europe Union

The trademark law of the People’s Republic of China leaded into the likelihood of confusion definitely in 2013. The trademark infringement criteria faced the basic change in China. The trademark infringement criteria from “goods are same or similarity and trademark are same or similarity” to “goods and trademarks are all the same plus one is the same and the other is similarity but may lead to the likelihood of confusion”. Since then, the law on trademark infringement criteria of China is exactly the same with article 9, the first paragraph in the European Community Trademark Regulation(CMTR for short). Studying the trademark infringement criteria constitute in European Union(EU for short) has the significance of reference to the rule of 57(1) and 57(2) in the trademark law of the People’s Republic of ChinaIn the EU, it will be identified as infringing without considering the likelihood of confusion when the goods and trademark are all the same. But when one of two is the same and the other is similarity, it must plus the likelihood of confusion.That is to say, The trademark infringement criteria in EU is “similarity and the likelihood of confusion” in this condition. The relationship between similarity and confusion is that, the former acts as a benchmark, and the latter is the limiter. When decided the similarity, both the CMTR and the European court only defined it objectively without consideration of confusion. Article 7, the third paragraph in the reasons of the CMTR is customarily translated to be that the definition of similarity is built on confusion while the exact meaning of original only shows the relevance to confusion. Prior to the wrong understanding, similarity has been constrained to demonstrate erroneously.The basics of the definition of similarity are overall evaluation principles. When decided trademarks infringement, similarity is the factor complementary to factors like auditory, visual,and other parts, while the apparent parts of that play an important role. Similarity of trademark includes factors of the nature of the goods or services, customs and usage, and it should make sure all these factors above complement each other. Moreover, all the relevant elements should be taken into account by combine with the cases. For definition of confusion,the principles are the same as that of similarity, namely overall evaluation principles. These includes three main factors, those are trademark similarity, resemblance between goods and service, obviousness of goods and there reputation. Confusion is restrictively interpreted which is between the actual and the possible confusion. For imagination which appeared in the provisions, it can be understood as a way to approach to confusion。However, imagination can not replace confusion as the judgment of infringement. In the strict sense, imagination can not determine the trademark infringement.The trademark law of the People’s Republic of China(Version 2013) leads into the likelihood of confusion. The similarity acts as a benchmark, and the likelihood of confusion is the limiter. The specific factors of similarity and likelihood of confusion needs to be reclassified. Two of them constituted the trademark infringement criteria.The relationship between the similarity and the likelihood of confusion can learn from EU to make similar provisions in the judicial interpretation in the future. In addition, pay attention to the correctuse of the overall evaluation principles. Using the overall evaluation principles needs to take care of every factor which is interaction and coordination. We should remember that the similarity determination is objective in juridical practice.