“Similarity” and “Confusion” as Criteria for Determining Trademark Infringement in Modern China -- A Comparison of Judicial Interpretations before and after 2014

According to Trademark Law of PRC of 2001, trademark similarity constituted the sole prerequisite for the court to recognize trademark infringement. However, “causing public confusion” was mentioned in Trademark Law of PRC of 2013 as a prerequisite for infringement determination parallel to the “similarity” condition. Through study on judicial interpretations of the two versions of the trademark law and three typical trademark infringement cases, the present paper shows that although the language of the trademark law changed, public confusion has been constantly taken into consideration when determining trademark infringement since 2001, even before the amendment of the law in 2013. Whether two trademarks are sufficiently similar so as to cause the relevant public to mistake the origins of the products marked by the two trademarks has always been regarded as a crucial factor in trademark infringement cases.
Admittedly, relevant public confusion was not mentioned in Trademark Law of 2001. It only appeared in the two interpretations of the law. Judicial Interpretation of 2002 clearly stated that “causing public confusion” constituted a verifiable standard used to measure similarity between trademarks. In contrast, “causing public confusion” is now directly articulated in Trademark Law of 2013 and 2019 as a prerequisite for trademark infringement, parallel to the “similarity” standard, which may indicate that the court now pays more attention to the functional property of a trademark.
The study of interpretations and typical cases also indicate that the intention of the defendant might play a role in infringement determination. Although neither Trademark Law of 2001 nor Trademark Law of 2014 specifies the intention of the defendant as a criterion for determining infringement, in reality, the intention of the defendant often comes up as a reason for the final adjudications.