Similarity of goods and services is determined on the basic authority of the Classification of Similar Goods and Services, together with factors such as the goods' function, use, principal raw materials, production sector, sales channels, points of sale, and consumer base—the question being whether the relevant public would readily perceive a specific connection between the goods or services, resulting in confusion.
The Classification Is the Starting Point
The Classification divides goods and services into 45 classes, with similar groups under each class. Goods within the same similar group are in principle found similar—this is the most commonly used yardstick. Both filing and searching should begin by locating the class and group in the Classification.
Comprehensive Judgment Across Five Factors
The Classification is not an absolute standard. Examination and adjudication practice also comprehensively considers: whether the functions and uses are identical or complementary, whether the principal raw materials are the same, whether the production sectors and sales channels overlap, and whether the consumer base is the same group. For example, goods within the same similar group but with vastly different functions may, in an individual case, be found dissimilar; conversely, goods in different groups or classes that are closely related may be found similar.
Annotations and Cross-Reference Relationships
The Classification contains a large number of notes expressly stating that certain goods are "similar to item XXXX in Class X" or enjoy "cross-class protection." These cross-reference relationships are the direct basis for cross-class similarity judgments and must be checked one by one during the search.
Special Rules for Similarity Between Goods and Services
Goods and their related services are generally not found similar, but where the content of the service is precisely the sale or provision of those goods (such as restaurant services and foodstuffs), there are cases in which similarity was found because the public would readily assume a single source.
Practical Suggestions
Before filing, list all similar groups corresponding to your main goods and treat them, together with the cross-referenced related groups, as the search scope; for uncertain cross-class relationships, assess the risk on a "better to presume similarity" basis.
If you encounter a similar situation, it is advisable to first consult a record-filed agent on MyTMBee to assess whether a trademark registration assessment is needed before deciding on the next step.