Reexamine the appropriate role of “Trademark use” in trademark infringement judgement: an empirical study of trademark infringement cases in China

Abstract

ABSTRACT The role of trademark use in finding infringement liability has always been on a hot debate, among which most scholars held that trademark use should serve as the gatekeeper of liability determination, but such debate lacks a proper grounding of empirical research. This article undertakes to fill this gap by adopting descriptive analysis, regression analyses and chi-square tests to review 1263 trademark infringement decisions in China. This study demonstrates that it is not the trademark use but the likelihood of confusion that lies at the core in deciding infringement liability. Additionally, the examination of the main factors considered by courts in deciding trademark use and likelihood of confusion reveals that the trademark use has been covered by the likelihood of confusion test. Based on these findings, this article suggests that there is no need to separately set up trademark use as the precondition to impose infringement liability.