The Judgement on the Likelihood of Confusion Standard under the Trademark Law

• Main Authors: Hua-ling Yang, 楊華玲
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2012
• Online Access: http://ndltd.ncl.edu.tw/handle/06125091087522405133

碩士 === 東吳大學 === 法律學系 === 100 === Trademarks represent one’s own products or services, distinctive from the products or services of others. To ensure this function, trademarks should avoid confusing consumers. Hence, likelihood-of-confusion tests are an important issue in the Trademark Act. The US established the criteria for determining likelihood of confusion in the early 20th century. Its development over the century has accumulated multiple standards and factor lists. Many typical cases have been established. In Taiwan, the Trademark Act began to specify the likelihood of confusion in the amendment of 1997 (concerning the protection of famous trademarks). In the amendment of 1993, Article 23-1 states that trademarks shall not constitute of the elements causing likelihood of confusion in the 3 items listed out of 18 items. The most typical, the most frequently used and the mostly denied trademark registration is the regarding regulations in the 13th item. (There is no difference in Article 30-1-10 of the amended regulations for implementations enacted on July 1, 2012.) The Ministry of Economic Affairs announced eight criteria for the reviewing of likelihood of confusion in 2004 and these criteria are similar with the criteria under the US legal system. Hence, the comparison of these two sets of criteria can help to clarify the concepts associated with likelihood of confusion. Article 23-1-13 of the Trademark Act as amended in 2003 has been in effect for over nine years. At that time, the legislation meant to clarify the criteria for likelihood of confusion to determine whether two trademarks are similar. It prohibits the registration of any two trademarks likely to cause confusion among consumers. The article states that the trademarks of any products or services identical, similar or related to the trademarks of other products or services or the trademarks previously applied and likely to cause confusion among consumers shall be prohibited from registeration. However, the reviewing criteria for the likelihood of confusion due to the identity or similarity of trademarks, or the identity or similarity causing the likelihood of confusion have stirred up many arguments and many interpretations in the court. It is a worthwhile endeavour to seek the ways of applying Article 30-1-10 of the Trademark Act concerning the likelihood of confusion via relevant conventions or contents in the laws and regulations and with the supporting reviewing criteria for likelihood of confusion.