How to determine whether it constitutes trademark infringement
1. The general attention of the public, including relevant consumers and operators, must be followed Strength is the standard judgment.
The basic function of a trademark is to enable consumers to easily identify these goods and services and their sources when purchasing them. Identical or similar trademarks generally occur in the market, and those affected are mainly relevant consumers and specific operators. Therefore, when the judge judges the case after the fact and determines that the trademarks are identical or similar, the judgment attention must also return to this situation, and the attention of relevant consumers and specific operators must also be used as the standard. This kind of attention is not the attention of relevant experts in this field. Experts’ attention that is too professional may lead to overly strict judgment standards. But it is not the attention of a careless consumer who is different from ordinary consumers. Judging by their attention, they may be too broad and may miss the situation that already constitutes the same or similar trademark. The standard should be to choose the usual, ordinary and general attention of the majority of relevant public among the two mentioned above. This involves a judgment of the behavioral subject's capacity to act. In trial practice, it is also called the subjective standard for determining whether trademarks are identical or similar. Judges must adhere to the standard of general attention of the relevant public when analyzing and judging and adopting relevant evidence as the basis for finalizing a case and generating evidence.
2. Accurately master the comparison method of identical or similar trademarks as a whole, essential parts and isolations. According to the law of consumers' perception of trademarks in the market, in trial and administrative law enforcement practice, the methods of comparing the trademark as a whole, its main parts, and comparing the trademarks in isolation are often used to determine the identity of the trademarks, especially the similarity of the trademarks.
(1) Overall comparison, also known as overall trademark observation and comparison, refers to observing the trademark as a whole, rather than just the individual components of the trademark. The elements are extracted and compared separately. This is because a trademark, as an identification mark for goods or services, is composed of the entire trademark. What is left in the memory of consumers is the overall impression of the trademark, rather than some of the individual elements that constitute the trademark. Therefore, when two trademarks differ in their specific constituent elements, as long as they are put together as a whole, the resulting overall vision may still make consumers thinkIf there is a misunderstanding, it should be determined as a similar trademark. On the contrary, if some components of two trademarks may be the same, but as a whole they will not cause consumers to misunderstand, that is, the overall visual difference is different, they cannot be regarded as similar trademarks.
(2) Comparison of important parts, also known as observation and comparison of main parts of trademarks, refers to extracting the parts that play a major role in identification of trademarks for key comparison and comparison. Control is a supplement to the overall comparison. This comparison method is also a method adopted based on consumers’ specific feelings and memories of trademarks and products in the market. Generally speaking, consumers’ feelings and deepest memories of a trademark are the main part of the trademark, that is, the part of the trademark that plays the main role of identification. When the main parts of two trademarks are the same or similar, it is easy for consumers to misunderstand them, and the trademarks can be judged to be similar.
(3) Isolated comparison, also known as isolated observation and comparison of trademarks, refers to placing the registered trademark and the trademark accused of infringement in different locations. Observation and comparison are conducted at different times, rather than placing the two compared trademarks together for comparison and observation. This is a basic trademark comparison method, and isolation comparison should be used whether in overall comparison or partial comparison. Generally speaking, when consumers are looking for the products they want, they always look for a perceived brand of goods or services in the market based on the trademark impression left over from past advertisements for a certain product or service. In the market, goods with different brands are generally not placed on the same counter at the same time. In the minds of consumers, in most cases, it is not the two comparison trademarks that exist at the same time, but the comparison between the trademarks they have seen before and remember in their minds, and the trademarks they see now.
In the subsequent infringement determination, using this kind of thinking mode of consumers and adopting the method of isolated observation and comparison can more truly reflect the consequences caused by the accused trademark. Likelihood and extent of confusion. Comparing two trademarks together is different from the actual purchase and transaction by consumers in the market. It may make the judge pay more attention to the differences between the two trademarks and fail to accurately judge the confusion that may arise in consumers' actual transactions. .
3. Determine the distinctiveness and popularity factors of registered trademarks in trademark similarity. According to Article 9 of the Trademark Law, a registered trademark should have distinctive features and be easy to identify. Distinctiveness, also known as distinctiveness, means that when a trademark is used on goods or their packaging or services, it can attract the attention of ordinary consumers and distinguish it from other goods or services. The distinctiveness of a trademark is a component of a registered trademark and an important aspect of the substantive review of trademark applications. For registered trademarks, they should all be distinctive. However, in practice, there are still some differences in their distinctiveness.Different degrees. Some trademark designs are very original. For example, they use words, pinyin letters, etc., which can be combined into words and meanings that do not actually exist. They are made-up words. They are similar to the "hitchhiking" of the accused trademark and are easy to identify. For trademarks with weak distinctiveness, it is relatively difficult to judge whether someone else’s trademark is similar to your own.
In addition to distinctiveness, the determination of trademark similarity is also closely related to the popularity of a certain trademark. According to the impact of trademarks on society, trademarks can be divided into well-known trademarks and non-well-known trademarks. Among well-known trademarks or non-well-known trademarks, there are different levels and degrees of trademark visibility. Some illegal actors often design well-known trademarks of others, or even trademarks that are similar to well-known trademarks, for their own personal gain. This kind of behavior will cause the consequences of diluting other people's well-known trademarks and damaging the legitimate rights and interests of others. Therefore, more sufficient protection should be provided for trademarks with strong distinctiveness and high reputation, which are easily targeted and subject to illegal infringement. When determining whether trademarks are similar, the distinctiveness and popularity factors of the trademarks should be considered.
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