Research On The Identification Of The Likelihood Of Trademark Confusion

The concept of likelihood of trademark confusion originates from the theory of trademark confusion and is one of the core issues in the study of trademark law.Specifically,the likelihood of trademark confusion refers to "the possibility for the ordinary consumers and the public with general caution to be misled by a mark to believe that the goods with the mark originate from or are related to a senior trademark owner".At present,there are many theoretical studies on the likelihood of confusion,but few on how to identify the possibility of confusion.Admittedly,the theoretical studies on the possibility of confusion is of great significance,but the theory needs to be implemented before it can play its due role,and research on the identification of the possibility of trademark confusion is the bridge from the theoretical results to the practice.Therefore,it is essential of the research on the identification of the likelihood of trademark confusion.To study the identification of the likelihood of trademark confusion,it is firstly needed to recognize the nature of the objectiveness of the likelihood of trademark confusion.To carry out the next research in a targeted way,it’s worthy to start with the current practice in our country and analyzing the existing problems to find out the crux.On the basis of a correct understanding of the objective nature of the likelihood of confusion and the practical needs in practice,a study on the identification scheme of the likelihood of confusion can be carried out.Before setting up a framework for identifying the likelihood of confusion,we must sort out the relationships among various factors and clarify the context of identifying the likelihood of confusion,as well as determine the scope of factors to be considered in identifying the likelihood of confusion and position them adequately.In order to make the framework operable,it is necessary to specify the methods for measuring each core factor respectively.At this point,we can set up a framework and determine the steps for identifying the likelihood of confusion,and put forward a feasible scheme of legal provisions to ensure such schemes and steps.Based on the above ideas,we shall analyze the concept and nature of the likelihood of confusion in trademark and its identification,so as to its position in trademark law.As the core requirement of trademark registrability and the premise of trademark infringement,the likelihood of confusion with its identification matters a lot in the trademark law.The concept of “likelihood of confusion” can be described as a criteria in provisions(criteria perspective)or a fact in case(case perspective).The identification of likelihood of confusion in criteria concept is based on the value orientation of legal norms,specific legislative documents and practical experience,and will change with economic development and policy trends,while,as the research object of this article,the likelihood of confusion in case concept is objective,concrete and realistic,thus its identification is actually the identification and exploration of facts,and does not change with the change of the identification subject.The latter is the.Then we need to study the current situation of the practice in identifying the likelihood of trademark confusion in China.The mode adopted in our country is the "layered" model learned from EU,which stipulates that similarity of marks and goods is a prerequisite ass well as a factor for identifying the likelihood of confusion.When run in practice,the mode are faced with two major challenges.One is the embarrass in legal application,the other is the "vicious circle" between the examiner and the applicant.These dilemmas is directly caused by the differences in legal provisions,but fundamentally caused by a lack of a applicable way to identify the likelihood of confusion.Therefore,it is essential to study the identification of likelihood of confusion and find this one.meanwhile,in view of the objectivity of the likelihood of confusion and the practical problems in our country,it is guided by the three principles,namely "to ensure the objectivity of the likelihood of confusion to the greatest extent","to acquire the operability and general applicability of the way to identify the likelihood of confusion" and "to maintain the principle of case judgment",in locating the way to identify the likelihood of confusion,The factors taken into consideration in trademark practice to identify the likelihood of confusion are not always the real factors effecting the likelihood of confusion.Even among those real factors in identifying the likelihood of confusion,the mechanisms they act in are different.Therefore,those factors are divided into three classes,namely direct factors,indirect factors and exclusion factors.Direct factors,which are independent of each other,and affect the likelihood of confusion directly,are the core factors in the identification of likelihood of confusion,and are also the focus of follow-up research in this paper.The remaining factors which affect the likelihood of confusion by influencing those direct factors are said indirect factors.In addition,factors considered in current practice that will not affect the degree of confusion possibility and thus are excluded are aforesaid exclusion factors,such as subjective intention,etc.On the basis of the above analysis,we can study further in how to determine the six direct factors in the identification of likelihood of confusion.Considering the relationship between direct and indirect factors,it makes a detailed analysis of each direct factor,trying to objectify the determination method of each factor to the greatest extent and show the rules among case facts,direct and indirect factors more clearly,that is,basing on facts,the indirect factors are able to affect one or more direct factors.Based on the "layered" model multi-factor test method adopted in our country and the internal relations among various factors,we can obtain a framework for identifying the likelihood of confusion,i.e.firstly to confirm whether there exists the lowest degree of similarity,if so,then to consider the intensity of each direct factor and the intensity of likelihood of confusion in respect of each direct factor one by one.The determination of the intensity of direct factors needs to be based on indirect factors and case facts.After determining the intensity of confusion possibility respectively in each direct factor,a comprehensive consideration will be made.In order to make this framework apply well in our country,we need to make up for the absence of the standard of likelihood of confusion in trademark administrative examination in our country,by clearly stipulating the framework and steps above-mentioned in the legal system,such as judicial interpretation and normative documents in administrative procedures.