Similar Trademarks

A similar trademark is one that, compared with a prior trademark, is similar in the form, pronunciation, or meaning of its words, in the composition and colors of its device, or in the overall structure formed by the combination of its elements, or that is similar in its three-dimensional shape or color combination, and that is likely to cause the relevant public to misidentify the source of goods or services or to believe that their source has a specific connection with the goods of the prior trademark.

Legal Basis

• Article 30: a trademark applied for registration that fails to conform to the relevant provisions of this Law or is identical or similar to another's registered 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;
• Article 57: using, on identical or similar goods, a trademark identical or similar to a registered trademark, where confusion is likely, constitutes infringement of the exclusive right to a registered trademark;
• Article 34: a party dissatisfied with the refusal of an application may apply to the Trademark Review and Adjudication Board for review within fifteen days of receiving the notice.

Assessment Standards and the Three Comparison Methods

The Assessor and the Level of Attention

• The assessor: the relevant public—consumers and operators connected with the goods or services identified by the trademark;
• Level of attention: the ordinary attention of the relevant public governs; consumers are not required to compare carefully or identify repeatedly; the higher the price and the more deliberate the purchase decision, the higher the corresponding attention;
• State of exposure: assessed according to how consumers encounter the trademark in actual purchase scenarios, not the state in which an examiner compares the two trademarks side by side on a file.

The Three Comparison Methods

1. Isolated comparison: the two trademarks are separated and observed at different times and in different contexts, to see whether consumers would confuse them from memory. In reality consumers rarely see two trademarks at once; side-by-side comparison magnifies differences and underestimates the risk of confusion;
2. Overall comparison: look at the impression the trademark as a whole leaves on consumers, rather than dismantling it into strokes, radicals, or color blocks for item-by-item comparison. The composite impression formed by the overall visual effect, pronunciation, and meaning is the consumer's real cognition;
3. Comparison of dominant parts: identify the parts of the trademark that function most strongly as identifiers (usually the most distinctive words or original graphics), compare whether the dominant parts are similar, while taking account of the influence of secondary parts.

The three methods are not alternatives; they are combined in a comprehensive judgment.

Other Factors Affecting the Similarity Finding

• Distinctiveness and fame of the prior trademark: the stronger the distinctiveness and the higher the fame, the broader the scope of protection and the more readily similarity is found—one reason well-known trademarks receive stronger protection;
• Degree of similarity of the goods or services: the more similar the goods, the more readily consumers believe the sources are the same, and the lower the threshold for similarity; conversely, cross-class use requires stronger similarity or higher fame to support a confusion conclusion;
• Originality of the sign: a slightly altered coined word can readily be found similar to the original; marks composed of industry-generic words face a stricter similarity standard;
• Evidence of actual confusion: genuine instances of consumer misidentification and complaint records can significantly strengthen a similarity claim, though they are not a necessary condition for finding similarity.

Common Situations of Similarity and Distinction from Identical Trademarks

Common Situations of Similarity

• Word trademarks: similar character forms (especially combinations of homophones with different characters), identical or similar pronunciation, identical or similar meaning, corresponding translations or transliterations between foreign languages and Chinese, and reordering of characters without changing the pronunciation;
• Letter and numeral trademarks: similar composition and pronunciation of letter combinations, and similar arrangement and pronunciation of numerals;
• Device trademarks: similar composition, overall appearance, color schemes, and visual effects;
• Composite trademarks: similar overall structure, with similar dominant parts of the words or graphics;
• Three-dimensional marks and color combination marks: similar three-dimensional shapes, color combinations, and their presentation.

Distinction from Identical Trademarks

An identical trademark means the two signs are visually virtually indistinguishable; a similar trademark means differences exist that are sufficient to cause confusion. The difference lies in the legal consequences: use of a trademark identical to the registered trademark on identical goods falls directly within Article 57(1), requiring no separate proof of confusion; infringement findings for similar trademarks usually require an assessment of "likelihood of confusion." This also means that making the sign slightly different does not make it safe—as long as confusion is still possible, infringement may still be found.

Practical Points

When searching before filing, apply the standard liberally: rather than underestimating risks to push the application forward, include in the risk list all prior trademarks that might be found similar. When enforcing, the argument for similarity should revolve around consumer memory under isolated comparison, not a list of differences between the two trademarks; at the same time, argue with a combination of distinctiveness, fame, similarity of goods, and evidence of actual confusion. After receiving a refusal notice, note the statutory deadline for refusal review and do not miss the remedial window.

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.