Research on the Content of Similarity Comparison in Trademark Infringement Judgment

Abstract

As for trademark infringement, in judicial judgment, the focus is on the scope and criteria of the similarity comparison. The comparison will be carried out based on the plaintiff’s registered trademark (legal right basis), and the defendant’s trademark used in practice (factual behavior object). Comparison should be conducted in terms of the mark as a whole, its visual and conceptual appearance, and its stand-alone source-identifying elements for the issued mark. In the constituent element analysis, one must take into account the actual usage situation of the trademark, since different situations may lead to different identification results of similar elements. In essence, trademark similarity infringement is a negation of the basic function of the registered trademark, which is source identification. The main standard for judging infringement is whether defendant’s trademark possesses the capability of guiding customers to the source of plaintiff’s goods and services. Fact that the defendant's trademark itself indicates it is the source as well does not preclude infringement established. This study systematically sort out logical framework of similarity comparison in trademark infringement judging, and combine theory with typical cases in order to clarify the core problems like subject of similarity, object of similarity, dimension and standard of similarity, providing theoretical support and operational references for the unified application of law in judiciary process.