The Application of Ceasing Infringement in Trademark Cases Involving the Violation of the Right to Name: Centering on the Likelihood of Confusion(PDF)
《南京师大学报》（社会科学版）[ISSN:1006-6977/CN:61-1281/TN]
- Issue:
- 2023年06期
- Page:
- 114-124
- Research Field:
- 法学研究
- Publishing date:
Info
- Title:
- The Application of Ceasing Infringement in Trademark Cases Involving the Violation of the Right to Name: Centering on the Likelihood of Confusion
- Author(s):
- YANG Gan
- Keywords:
- trademark use; right to name; name symbol; cessation of infringement; cessation of use; likelihood of confusion
- PACS:
- -
- DOI:
- -
- Abstract:
- The Jordan case involves a dispute where the use of trademarks infringes upon the right to one's name. In this case, the court categorized various types of commercial marks and established distinct methods for halting the infringement, representing a departure from established theoretical understandings and legal practices. However, the court struggled to maintain internal consistency while applying the theory of likelihood of confusion. This led to a disconnect between the arguments for infringement damage and the methods for ceasing infringement, resulting in an incongruous judgment. The Jordan case offers a valuable insight: the theoretical foundation for distinguishing the methods of ceasing infringement hinges on the notion that using name symbols as trademarks introduces an element of commercial confusion. By making moderate adjustments to the likelihood of confusion theory, grounded in the characteristics of this behavior and the attributes of infringement damage, a link can be established between the individualization, autonomy, and recognition of name symbols. This, in turn, serves as a framework for evaluating likelihood of confusion and serves as the basis for arguments aimed at preventing associations to achieve the desired relief for cessation of infringement. Consequently, in disputes where trademark usage infringes upon the right to one's name, a typological framework for applying methods to cease infringement is established. For instance, when there is no confusion, only individual confusion, limited confusion, or accidental confusion, the use of corresponding name symbols should be permitted. In cases where a certain number of relevant members of the public are confused, industry-specific distinguishing prompts should be employed to prevent associations. When a considerable number of relevant public individuals experience confusion, cross-industry distinguishing prompts should be used to prevent associations. Finally, if the general public is generally confused, the association should be stopped by discontinuing use.
Last Update: 2023-12-25