A Study On The Standard Of Possibility Of Confusion In Trademark Examination In China

The standard of confusion possibility has a benchmark position in the trademark legal system.China’s trademark law has made it clear that the standard of confusion possibility is adopted in the determination of trademark infringement since its revision in 2013.However,Article 30 of the trademark law stipulates that similar standards are adopted in trademark examination.At the same time,the "guidelines for trademark examination and Adjudication" also stipulates that when the trademark examination(including trademark registration application,objection and invalidation)procedure determines that the trademark is similar,in addition to the physical similarity of the trademark,it is also required to easily make the relevant public misidentify the source of goods or services,and require the possibility of confusion as the constituent element of determining the similarity of the trademark,that is,the similarity standard of confusion.This standard leads to logical confusion,inconsistent system and unclear legal basis.Therefore,it is necessary to clarify the position of confusion possibility in trademark examination and refine the judgment rules.Firstly,it combs the evolution process of China’s trademark examination from approximate standard to confusing approximate standard,compares it with the standards adopted by trademark infringement,and then comes to the problems of confusion approximate standard in trademark examination,such as logical confusion,unclear legal basis,system inconsistency and so on.Secondly,by demonstrating the basic position of the standard of confusion possibility in the whole trademark law,including the review stage and tort relief stage,this paper discriminates the relationship between confusion possibility and similarity,and suggests that China amend the trademark law and relevant review guidelines and judicial interpretation on the basis of American and European legislation,so as to clarify the position of the standard of confusion possibility.Finally,it puts forward the judgment rules of the possibility of confusion in trademark examination in China,including: Taking the principle of case judgment,relevant public cognition and interest balance,and taking trademark similarity,trademark significance and popularity,commodity similarity,relevant public cognition level and subjective intention as the judgment elements;In addition,different examination efforts are applied to judge the possibility of trademark confusion in the procedures of preliminary examination,objection and invalidation of trademark registration.In the preliminary examination stage,when the examiner considers that the composition of trademark marks is similar,the procedure of requiring the applicant to further submit materials to prove that it is impossible to cause confusion is added;The Trademark Office shall judge whether the trademark constitutes confusion at the time of submission of the trademark application and whether the trademark constitutes confusion.