How to determine whether the trademark is similar?-Q&A.-Shenzhen deep trust patent Agency Co., LTD

News Updates

NEWS CENTER

Related News

There is currently no data available

Home

How to determine whether the trademark is similar?

Release Time：

2022-08-29

A: Generally speaking, two conditions need to be met to constitute a trademark approximation.First, the trademark itself identifies the same or similar, and second, the goods/services designated by the trademark belong to the same or similar goods/services.Specific can be considered from the following aspects.

1. The premise of judgment is whether the two trademarks specify the use of goods constitute similar.

Similar commodities refer to commodities that are identical or closely related in functions, uses, main raw materials, production departments, sales sites, consumer groups, etc. The main factors that affect similar goods are: function, use, main raw materials or ingredients, sales channels, sales places, producers and consumers of goods, goods and parts, consumption habits, and placement.

2. The judgment of trademark similarity is based on the general attention of the relevant public, and the degree of attention of the relevant public at the time of purchase is considered.

The relevant public refers to consumers related to a certain class of goods or services identified in a trademark and other business operators who have a close relationship with the marketing of the said goods or services. General attention, can be understood as in the process of daily life, consumers in the purchase of goods or accept services, and do not prepare for it, purchase, do not carefully distinguish the target, but only by the general impression of the goods in the mind, in accordance with the usual way, and no deliberate observation and comparison, the usual attention imposed.

3. The comparison work shall be carried out separately in the isolated state of the comparison objects, and the method of combining the overall observation with the main part of the comparison shall be adopted.

The main part of a trademark refers to the constituent elements of a trademark that are most identifiable as the source of the goods and most easily associated with the goods using the trademark by the relevant public.

4. In addition to whether the trademark logo itself constitutes an approximate judgment, it is also necessary to determine whether it will cause confusion and misperception of the relevant public as the basic judgment standard.

Sufficient to cause the relevant public to confuse, misrecognize is a necessary condition for the formation of trademark approximation. Only similar trademark words and patterns, but not enough to cause confusion or misidentification of the relevant public, does not constitute trademark similarity.

5. Consideration shall be given to the distinctiveness and popularity of the trademark, as well as the actual use of the trademark in the market.

There are at least three cases of similar comparison of trademarks: first, the two trademarks are not too well-known, and the overall comparison is usually made according to the natural factors such as the sound, shape and meaning of the logo itself; Second, the two trademarks compared have quite high visibility, the composition of the approximate comparison is not limited to the logo itself, but also need to consider the actual use of the situation; Third, there is a wide difference in the popularity of the comparison trademark, usually taking the main part of the comparison trademark, rather than taking the overall comparison.

6. Consider the subjective factors of applying for registered trademarks and whether there are malicious factors.

The presumption of "bad faith" usually considers the popularity and distinctiveness of the cited trademark, the geographical scope of the disputing parties, the business field, whether the two parties have business dealings, whether there are other trademark disputes, the actual use of the contested trademark, whether the applicant of the contested trademark hoarded a large number of trademarks, whether there is no intention to use and transfer the contested trademark at a high price, and so on. Since "bad faith" can only be proved by presumption and cannot be proved absolutely true, the standard of proof of superior evidence can be generally reached.

7. If the logo itself is similar, but will not cause confusion and misidentification, it is not a similar trademark; If the trademark mark itself is not similar, but is sufficient to cause confusion, it may be similar to the trademark, depending on the circumstances.