The identification of trademark similarity is an important content of trademark law, which is directly related to the final determination of the acquisition or loss of rights, and it is also a key issue that must be considered and solved in various trademark dispute cases. In reality, the forms of trademark expression and trademark similarity are more and more ingenious, which increases the difficulty of identifying trademark similarity in practice.

Regarding the standards of judging the trademark similarity have reached a consensus in the trademark practice, that is to determine whether a trademark is similar, we should consider not only the components of the trademark and its overall degree of similarity, but also the significance and popularity of the relevant trademark, and the degree of association of the goods used, whether it is easy to cause confusion as a judgment standard.

For the above criteria for judging the similarity of trademarks, we can simply understand that what is sufficient to cause confusion among the relevant public may be a necessary condition for constituting trademark similarity, and the determination of trademark similarity should be based on confusion as the sole basis for judgment, and the identity or similarity of trademark is not a decisive factor in determining the similarity of trademarks, and a correct judgment can only be made in combination with other relevant factors.

Recently, the invalidation application case of “小贝房链”(Chinese characters in Pinyin Xiao Bei Fang Lian) series trademarks represented by our firm has obtained a favorable ruling. The success of this case fully reflects the decisive role of "confusion" in the judgment of trademark similarity.

In the application for invalidation, the applicant submitted evidence such as the certificate of the industry association, the audit report, and the relevant reports retrieved by the National Library to prove that "贝壳" (Chinese characters in Pinyin Bei Ke) and "链家" (Chinese characters in Pinyin Lian Jia), as brands in the same service industry, have a certain degree of public recognition and are operated by the applicant's group at the same time. The applicant argued that the use of the disputed trademark “小贝房链”(Chinese characters in Pinyin Xiao Bei Fang Lian) in the approved services could easily cause the relevant public to mistakenly believe that it originated from the same subject as each cited trademark, or that the cooperative brand of"贝壳" (Chinese characters in Pinyin Bei Ke) and "链家" (Chinese characters in Pinyin Lian Jia), was used, resulting in confusion and misidentification by the relevant public. In addition, according to Article 1 of the Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving the Granting and Confirmation of Trademark Rights, "when hearing administrative cases concerning the granting and confirmation of trademark rights, the people's courts may, when examining and judging the conditions for granting and confirming rights such as trademark similarity and similar goods, and handling conflicts with prior commercial signs in accordance with the law, fully consider the interests of consumers and business operators in the same industry, and effectively curb improper preemptive registration of disputed trademarks." Pay attention to the protection of the rights and interests of commercial signs such as prior trademarks and enterprise names that have a high reputation and strong distinctiveness of others, and eliminate the possibility of confusion of commercial signs as much as possible.” The applicant has not found the information about the use of the disputed trademark in the designated service, and there is no evidence to show that the disputed trademark has been put into actual use, so it is difficult to say that the respondent has fulfilled the obligation of reasonable avoidance. Therefore, from the point of view of avoiding confusion as much as possible, it is more beneficial to protect the interests of consumers and maintain the good order of socialist market economy to determine that the disputed trademark and the cited trademark constitute the similar trademark used in the same or similar service. In conclusion, the applicant believes that the disputed trademark “小贝房链”(Chinese characters in Pinyin Xiao Bei Fang Lian) and the series trademarks of "贝壳" (Chinese characters in Pinyin Bei Ke), "链家" (Chinese characters in Pinyin Lian Jia) and "贝壳链" (Chinese characters in Pinyin Bei Ke Lian)cited by the applicant constitute similar trademarks used in the same or similar services, and requests that the disputed trademark to be declared invalid according to Article 30 of the Trademark Law. The application was supported, and the China National Intellectual Property Administration recently ruled that the disputed trademark was invalid.

It can be seen from the handling and hearing thinking of this case that such cases of judging "atypical" trademark similarity can be obtained in similarity determination. The trademark right holder should take the prevention of dilution and confusion as the starting point and take active measures to safeguard the prior trademark right. In the process of case handling, the rights holder should fully provide evidence and explore the factors that may be related to confusion from multiple angles such as distinctiveness, popularity, industry, region, maliciousness, in order to obtain favorable rulings.

Taking  the declaration of invalidation of the trademark“小贝房链”(Chinese characters in Pinyin Xiao Bei Fang Lian) under Class 35 as an example, the comparison of trademark samples is as follows.