| The "relevant public" standard plays an important role in China’s trademark law system.This standard is applied in such scenarios as determining trademark confusion,trademark distinctiveness and the recognition of well-known trademarks.The views and opinions of the relevant public on the trademark or mark in question are often closely related to the basic issues of trademark law and should be an important factor in judicial decisions.However,in China’s judicial practice,the application of "relevant public" is characterized by formalization,vague definition criteria and inadequate reasoning.China has not yet established a system that allows the relevant public to be expressed objectively.The relevant public is often expressed speculatively by judicial adjudicators.The adjudication of trademark cases relies on the personal experience and intuitive perception of trademark examiners and judges,and the psychological perception of the "relevant public" is ignored.The "relevant public" standard has not played its institutional role.Therefore,the judicial application of the relevant public needs to be sorted out and studied in order to solve the problems in practice.This article has four main parts,in addition to an introduction and a concluding section.The first part is a basic overview of the "relevant public" system.The legislative history of "relevant public" in China can be examined.The influence of international treaties such as the TRIPS Agreement on the relevant public regime in China can be found.The Judicial Interpretations define the relevant public,which consists of two main categories: consumers and operators.As a fundamental concept of trademark law,the value of the "relevant public" involves three aspects:trademark owners,consumers and the order of market competition.The second part is to explore the current judicial application of "relevant public".From the normative point of view,the relevant public has been applied in a wide range of contexts,and the status of the relevant public as a subject of judgment can be determined in both trademark confirmation and trademark confusion infringement cases.Through the observation and analysis of specific cases,the problems in the application of "relevant public" in China’s judicial practice are summarized,which are reflected in the formalization of the application of "relevant public",the vague definition of the scope,the inadequate argumentation of the attention of the relevant public and the speculative expression of "relevant public".The third part is based on the relevant public in practice.The third part analyses the application of the relevant public based on the problems of the application of the relevant public in practice.On the one hand,the imprecise meaning of the term "relevant public" has caused confusion in its application;on the other hand,there is a lack of detailed explanation of the application of the term "relevant public" and a lack of explanation of the application of the term "relevant public".On the other hand,there is a lack of detailed explanation of the application of the term "relevant public" and a lack of objective evidence for the determination of "relevant public attention".Secondly,the scope of the relevant public,the analysis of the degree of awareness and the value of trademark questionnaires are discussed in detail,and the factors affecting the definition of the "relevant public" are explored and illustrated with specific cases.In relation to the lack of objective evidence to determine the true views of the relevant public in China,this article examines the significance of the methodology of overseas consumer surveys from a comparative law perspective.The fourth part of the paper proposes suggestions for improving the application of the relevant public in practice.As regards the definition of the relevant public,there is a need to refine the operational details of the relevant public,including clarifying the logic of the definition of the relevant public and setting out the factors influencing the determination of the "general attention of the relevant public".As for the issue of objective evidence for judging the mental state of the relevant public,China can construct a trademark questionnaire system to overcome the problem of judges’ overpowering personal perceptions covering the real perceptions of the relevant public in the marketplace.The trademark questionnaire system encompasses three aspects: clarifying the legal nature of investigative evidence,developing trademark guidelines for investigative activities and strengthening judicial guidance. |
