Similar goods and services are the key concept determining the breadth of trademark protection. The Classification of Similar Goods and Services groups into the same similar group goods that share function, intended purpose, raw materials, sales channels, or consumers, and on which identical or similar trademarks are likely to cause the relevant public to believe a specific connection exists or that they are provided by the same enterprise; for services, the assessment dimensions are purpose, content, manner, and objects. Whether goods are similar is a common prerequisite question in both trademark examination and infringement determination.
Legal Basis and Criteria
Article 30 (refusal of applications) and Article 57 (infringement determination) of the Trademark Law both take "identical or similar goods" as a precondition of application, and Article 22 requires declaration of the class and names of goods according to the prescribed classification of goods.
The public basis for the assessment is the Classification of Similar Goods and Services compiled by CNIPA, which has a three-level structure:
- Classes: 45 in total; classes 1 to 34 for goods, classes 35 to 45 for services;
- Similar groups: four-digit codes, the first two digits being the class number and the last two the group number;
- Goods or service items: six-digit codes, with no asterisk after the name; only the item name is declared in applications.
The Classification is not law, but a retrieval tool compiled for trademark searching, examination, and administration. According to its editors' explanation, it cannot exhaust all similar goods and service items; whether goods are similar must be judged comprehensively according to the general perception of the relevant public, with the Classification serving as a reference rather than the sole standard.
Dimensions of the Similarity Assessment
- Goods: function, intended purpose, raw materials used, production department, sales channels, places of sale, and consumers;
- Services: purpose, content, manner, and objects.
In practice there are two coordinates:
- Items within the same similar group are in principle found similar; items in different similar groups require case-by-case judgment, with the Classification indicating in notes after specific groups the similar objects that should be cross-searched;
- To argue that items beyond the Classification are similar, evidence is needed—for example, a high degree of overlap in function and intended purpose, identical sales channels and consumers, or actual consumer confusion.
Relationship Between Similarity and Confusion
Similarity of goods is only one variable in the confusion analysis, not a conclusion. Use of a dissimilar trademark on similar goods generally does not cause confusion; use of an identical trademark on dissimilar goods generally does not constitute infringement either (well-known trademarks enjoy cross-class protection under Article 13 of the Trademark Law).
Another easily confused point: whether goods are similar is an objective relationship between the goods themselves and does not change with the fame of a particular trademark. Fame affects the magnitude of the likelihood of confusion, not whether the goods are similar. Mixing the two up can easily lead the argument astray in review or litigation.
Practical Points and Common Pitfalls
- Choose classes from your business: the Classification is a retrieval tool, not a list of business scopes. Start from the function, intended purpose, and sales channels of your own goods, then return to the Classification to find the corresponding items;
- Declare specific items: state the names of specific goods or service items in the application; do not declare class headings or similar-group names;
- Cross-searching cannot be skipped: similar relationships may exist between similar groups within the same class and between similar groups of different classes; searching and class selection must follow the "notes" in the Classification across groups;
- Pitfall one: equating "same broad class" with "similar." Computers in class 9 and software design and development in class 42 belong to different classes yet may be highly related;
- Pitfall two: equating "different broad classes" with "not similar." Cases finding cross-class similarity are not rare in practice;
- Pitfall three: concluding solely from the Classification. The Classification is the principal reference; the final answer must return to the general perception of the relevant public.
The application of these concepts in practice varies in detail; before proceeding, you may consult a registered agent via MyTMBee for targeted analysis.