商标混淆可能性的多因素测试法比较研究

Comparative Research on Multi-factor Test of Trademark Likelihood of Confusion

商标的功能是指示商品或服务的来源,由此决定了商标侵权的判定标准是消费者的混淆可能性。从混淆可能性的判定应回归市场环境和克服裁判者主观性的角度,说明多因素测试法是判定混淆可能性的必然选择。在此基础上,分别对美国和欧盟的多因素测试法做了梳理,提炼适用多因素测试法判定混淆可能性的比较法经验。多因素测试法在我国相关司法解释和司法实践中均有所体现,但仍存在完善空间。应借鉴美国和欧盟的比较法经验,明确规定商标混淆可能性的多因素测试法,并强调相关因素清单具有开放性,多因素测试法的适用还应注意各判定因素之间的相互影响和综合权衡。

The function of trademark is to indicate the source of goods or services, which determines that the judgement criterion of trademark infringement is consumer’s likelihood of confusion. From the point of view that the judgment of likelihood of confusion should return to market environment and overcome subjectivity of judge, this paper points out that Multi-factor Test is an inevitable choice to judge likelihood of confusion. On this basis, the Multi-factor Test of United States and European Union are analyzed, and experience of applying Multi-factor Test to judge likelihood of confusion is also re fined. The Multi-factor Test has been re flected in relevant judicial interpretation and judicial practice of China, but there is still room for improvement. We should learn from the experience of United States and European Union, and clearly stipulate the Multi- factor Test which is to judge likelihood of trademark confusion, and emphasize that the relevant factor list is open, what is more, the applying of Multi-factor Test should also pay attention to mutual influence and comprehensive balance among factors.