The Research On Identification Of Approximate Trademark Infringement

The identification process of approximate trademark infringement involves a series of criteria,such as the objective criteria of trademark approximation,the determination of relevant public,the definition of general attention,the reference elements of confusion possibility,etc.,which is quite complicated.In China’s trademark infringement litigation,facing the similar trademark infringement problem,due to the lack of objective standards,it is difficult to avoid the phenomenon of different identifications in the same case.In 2013,taking the opportunity of the revision of Trademark Law,China introduced the infringement identification standard of "confusion possibility",abolished the previous "double similarity standard" and changed it to "similarity+confusion possibility".This means that China’s similar trademark infringement identification standard has been greatly improved in legislation.However,after the revision of the Trademark Law,the relationship between trademark approximation and confusion possibility is still unclear,resulting in conflicts between judicial interpretation and trademark law provisions,as well as relevant administrative regulations and trademark law provisions.Based on this,it is urgent to strengthen the research on the identification of similar trademark infringement.Through comparative research and case analysis,this dissertation explores the problem of similar trademark infringement identification,puts forward solutions and gives corresponding legislative suggestions.The text is divided into the following five chapters.The first chapter explores the development process and related principles of the concept of "approximate trademark".From its first appearance in 1982 to the major revision of the Trademark Law in 2013,this dissertation summarizes the characteristics of similar trademarks,compares and analyzes the relationship between similar trademarks and the same kind of trademarks,and discusses the relationship between trademark approximation and confusion: trademark approximation is only the factor that causes confusion,trademark approximation is the important reason that causes confusion,and confusion is the result.This chapter also discusses the basic principle of approximate trademark infringement identification.The second chapter researches the core contents of approximate trademark recognition system: approximate trademark recognition,confusion possibility definition and subjective fault recognition.This chapter analyzes the objective standards and concrete manifestations of the identification of approximate trademarks,explores the reference factors and other considerations for the definition of confusion possibility,and analyzes the influence of subjective factors such as subjective intention and ignorance of the perpetrator on the identification of approximate trademarks from the civil perspectives of infringement constitutive requirements,burden of proof sharing and criminal perspectives of conviction and sentencing.The third chapter compares the main legislative norms of trademark infringement identification in the world.This chapter holds that the United States’ confusion possibility standard,Japan’s similarity standard and EU’s similarity standard are based on approximation and confusion is the limiting condition.This chapter also researches China’s approximate trademark identification norms,and discusses the specific application of the basic principles of China’s approximate trademark infringement identification norms and the specific operation norms of the main comparison methods.Chapter four explores the main types of similar trademark infringement identifications by researching the cases of similar trademark infringement identifications in recent three years: similar trademark infringement on the same commodity,and similar trademark infringement on similar commodities.This chapter also analyzes the problems existing in the cognizance of similar trademark infringement in judicial practice,such as the cognizance subject,unclear understanding of similar trademark and confusing relationship,and insufficient standards and methods for judging similar trademark infringement.The fifth chapter,based on the lag and conflict of laws in the identification system of trademark infringement,puts forward suggestions and concrete measures to amend the Trademark Law and judicial interpretation.This chapter puts forward specific judicial suggestions on how to determine the scope,number,selection elements and opinion adoption rules of the relevant public,explores the specific criteria for judging the possibility of confusion,puts forward judicial suggestions on how to improve the criteria for judging similar trademarks and enhance the operability and predictability of identification methods,and explores the specific measures for perfecting the market survey law.