An identical trademark is one that is visually virtually indistinguishable from another trademark. It covers not only cases where the constituent elements of the signs are completely the same, but also cases where minor differences exist that, for the relevant public, make no substantive difference to the overall visual effect and should still be regarded as identity. This finding directly determines the route to establishing infringement: an identical trademark on identical goods requires no separate proof of confusion.
Legal Basis
- Article 57(1): using a trademark identical to the registered trademark on identical goods without the registrant's permission is an infringement of the exclusive right to a registered trademark. This situation does not require "likelihood of confusion" as an element—confusion is presumed when an identical mark is used on identical goods;
- Article 57(2): using a similar trademark on identical goods, or an identical or similar trademark on similar goods, where confusion is likely, constitutes infringement. Identical and similar trademarks form different constitutive routes here;
- Article 30: a trademark applied for registration that is identical or similar to another's registered trademark or preliminary approved trademark on identical or similar goods shall be refused by CNIPA and withheld from publication;
- Article 31: where two or more applicants apply for registration of identical or similar trademarks on identical or similar goods, the trademark whose application was filed first shall be preliminary approved and announced.
Complete Identity: Assessment at the Element Level
Complete identity means that the constituent elements of the two signs are exactly the same:
- Word trademarks: identical characters, character count, order, and punctuation;
- Device trademarks: identical graphic composition, layout, and overall appearance;
- Letter and numeral trademarks: identical characters and their arrangement;
- Three-dimensional signs, color combinations, and sound trademarks: identical composition and presentation of the sign itself.
Minor Differences May Still Amount to Identity
In trademark examination and judicial practice, "identity" does not require pixel-level sameness. Where the textual composition, pronunciation, and meaning of the signs are completely the same, differences confined to the following non-significant aspects will usually still be found identical:
- Changes of typeface, such as switching to another common font or minor adjustment of artistic letterforms;
- Changes of letter case;
- Changes in the arrangement of text, such as horizontal arrangement changed to vertical, or adjustment of line breaks;
- Addition or omission of punctuation or separators;
- Changes in color shade, or adjustment of non-designated color elements;
- Minor additions or deletions of small decorative elements that do not affect overall identification.
The touchstone is always the visual impression of the relevant public: if the minor differences are insufficient in everyday life for consumers to distinguish the two as coming from different sources, they remain identical trademarks.
The reverse boundary also requires attention: if the alteration involves the textual composition, pronunciation, or meaning, or causes a substantive change in the overall visual effect, the signs are no longer "identical" and the assessment shifts to similarity, with the conclusion depending on likelihood of confusion.
Pairing with "Identical Goods" and Differences in Consequences
Pairing with "Identical Goods"
Article 57(1) requires "using a trademark identical to the registered trademark on identical goods." "Identical goods" means goods with the same name, or goods with different names that refer to the same thing. Only when an identical trademark is paired with identical goods does it directly trigger item (1); if the goods are merely similar while the sign is identical, the analysis returns to item (2), which requires an assessment of confusion.
Differences in Legal Consequences Between Identity and Similarity
- Burden of proof: where an identical trademark is used on identical goods, the rights holder need not prove likelihood of confusion; similar trademarks usually require an argument on confusion;
- Examination conclusions: both fall within the refusal scope of Article 30 at the examination stage, but the finding of identity is more direct, with less room for dispute;
- Room for remedy: in refusal or opposition cases, if identity is found, the arguable space is usually smaller than in similarity cases, and the focus often shifts to whether the goods are of the same kind or whether other defenses exist.
Practical Points
- Evidence in enforcement: capture the accused sign as it actually appears, without deliberately cropping, enlarging, or shrinking it; simultaneously fix the product page, sales records, and the time of evidence collection to form a complete chain;
- Do not gamble on "change a little and it's safe": merely changing the typeface, adjusting the arrangement, or adding or removing decoration usually remains within the scope of identical trademarks; to avoid risk substantively, change the textual composition, pronunciation, and overall visual impression;
- Monitoring dimensions correspond to the right boundary: monitor item by item against the elements of the approved sign, paying particular attention to uses differing only in typeface or arrangement;
- Defense thinking: when accused of using an identical trademark, the focus of the defense is usually not "the sign is different," but whether the use constitutes trademark use (Article 48), whether it is fair use (Article 59), whether the goods are of the same kind, and whether a legitimate-source defense (Article 64(2)) is available.
The practical judgment behind these concepts must be tailored to the individual case; before proceeding, you may book a registered agent via MyTMBee for targeted analysis.