Trademark Wiki / 专业术语

Likelihood of Confusion

TermPublished 2026-09-17 · Updated 2026-09-17

Likelihood of confusion is the core standard in assessing trademark similarity: the relevant public misidentifies the source of goods or services, or mistakenly believes a specific connection exists with the prior trademark.

Likelihood of confusion refers to the relevant public, when encountering the later or accused trademark, misidentifying the source of goods or services, or—though able to distinguish the sources—mistakenly believing that a specific connection such as investment, licensing, or affiliation exists between them. It is the intersection of trademark examination and infringement determination: trademark similarity, similarity of goods, and similar elements must all ultimately land on the conclusion "likely to cause confusion."

Legal Basis

  • Article 57(2) of the Trademark Law: using, without permission, a trademark similar to the registered trademark on identical goods, or an identical or similar trademark on similar goods, where it is "likely to cause confusion," constitutes infringement of the exclusive right to a registered trademark;
  • Article 57(1) (identical trademark on identical goods) does not take confusion as an element—the law presumes it;
  • Article 30 of the Trademark Law: a trademark identical or similar to a prior registered or preliminary approved trademark on identical or similar goods shall be refused. The text itself does not contain the word "confusion," but in examination practice whether confusion is likely is the core consideration in assessing trademark similarity;
  • Article 42(3) of the Trademark Law: assignment of trademarks likely to cause confusion shall not be approved by CNIPA.

The specific assessment rules are found in the Trademark Examination and Adjudication Guidelines of CNIPA.

From Whose Perspective: The Relevant Public

The relevant public consists of consumers of the goods or services identified by the trademark and other operators closely connected with the marketing of those goods or services. The assessment neither takes the whole of society as the vantage point nor professionals, but the ordinary level of attention of that group: the cognition and memory of ordinary consumers govern, without demanding excessive care and without excusing carelessness. Unit price, purchase frequency, and degree of specialization all affect the level of attention—the attention given to daily fast-moving consumer goods is usually lower than for high-value durable goods.

Distinction Between Confusion and Mere Misapprehension

The two are often used interchangeably, but their legal consequences are entirely different.

  • Confusion points to source, answering "whose is this," and is a relative ground; it must be asserted by a prior rights holder or interested party and addressed through refusal under Article 30 at examination or liability under Article 57;
  • Misapprehension points to the characteristics of the goods themselves—wrong beliefs about quality, origin, ingredients—and is governed by Article 10(1)(7) (deceptive signs likely to mislead the public about the quality or other characteristics of goods, or their origin), an absolute ground under which CNIPA may refuse on its own initiative, regardless of anyone's prior registration.

Forms of Confusion

  • Source confusion (direct confusion): the relevant public mistakenly believes the accused sign and the prior trademark come from the same party;
  • Affiliation confusion (indirect confusion): the public knows they are not the same, but mistakenly believes a licensing, franchise, investment, or other connection exists;
  • Initial-interest confusion: entering a store or clicking a link because of the similar sign, learning the truth before actual purchase. Chinese law has no separate provision on initial-interest confusion; the assessment of "likely to cause confusion" usually takes cognition at the time of purchase as the benchmark, with initial-interest confusion serving as an auxiliary consideration indicating a higher likelihood of confusion;
  • Reverse confusion: the prior trademark has relatively low fame while the later user's brand is much more prominent, causing the relevant public to mistakenly believe the prior trademark comes from the later user.

Assessment Points and Common Pitfalls

The assessment takes the ordinary attention of the relevant public as the standard, combining overall comparison with comparison of the dominant parts, and observes the marks in isolation—relying on memory rather than placing the two trademarks side by side for character-by-character comparison. The distinctiveness and fame of the trademark, the similarity of the goods or services, the similarity of the signs, evidence of actual confusion, and the subjective intent of the accused user are all relevant factors.

  • Pitfall one: equating "similarity" with "confusion." Trademark similarity is only a premise; if the goods are not similar or the trademark is weak, confusion may still be absent;
  • Pitfall two: only doing a "side-by-side comparison." Careful side-by-side scrutiny artificially magnifies differences and departs from real consumer scenarios;
  • Pitfall three: ignoring actual use evidence. Real confusion traces—consumer complaints, mistaken purchases, media reports—are directly persuasive for the finding.

How these concepts apply in specific cases still involves detailed differences; you may consult a registered agent via MyTMBee for case-specific analysis.