Trademark similarity means that two trademarks are close in the character form, pronunciation, or meaning of their words, or in the composition, coloring, or appearance of their devices, or that the overall structure, three-dimensional shape, or color combination of a word-device combination is similar, such that the relevant public would readily be confused or misled as to the source of the goods or services. It is the core concept most frequently invoked in examination rejections, oppositions, invalidations, and infringement determinations.
Judging Subject and Standard
Trademark similarity is judged by the standard of the ordinary attention of the relevant public—neither the professional eye of an expert nor the attention of a careless person is adopted. In making the judgment, the marks are compared as a whole, while the distinctive identifying portion (the dominant portion) is compared with particular focus; the comparison is made in an isolated state—that is, judged by remembered impression rather than side-by-side comparison.
Common Types of Similarity
Similarity of word marks: similarity in character form (look-alike characters, added or removed strokes), similarity in pronunciation (same sound in different characters), similarity in meaning (synonyms, Chinese-foreign correspondences), and similarity in arrangement (reversed character order). Similarity of device marks: closeness in compositional elements, design style, and overall visual effect. Similarity of combined marks: similarity of the word portion is usually decisive, and similarity of the overall composition can also independently suffice. Three-dimensional signs and color combinations have corresponding similarity rules of their own.
The Relationship Between Similarity of Marks and Similarity of Goods
Trademark similarity and similarity of goods are the two pillars of likelihood of confusion and are judged in linkage: the higher the degree of trademark similarity, the lower the required degree of similarity of goods; the more similar the goods, the lower the threshold for a finding of trademark similarity. Identical trademarks on identical goods lead to a virtually direct presumption of confusion; similar trademarks on dissimilar goods usually do not conflict.
The Impact of Renown on Similarity Judgment
The stronger the distinctiveness and the higher the renown of a prior trademark, the broader its scope of protection and the greater the room for a similarity finding. For well-known trademarks that are highly original and widely used, examination and judicial practice afford stronger protection against confusion.
Legal Consequences of a Similarity Finding
At the examination stage, an application similar to a prior trademark is rejected; at the adjudication stage, a similar mark already registered may be opposed or declared invalid; in infringement litigation, using a similar trademark without permission on similar goods in a way likely to cause confusion constitutes infringement of the exclusive right to use a registered trademark (Article 57 of the Trademark Law).
Practical Implications
A pre-filing self-check should search and compare separately across the three dimensions of character form, pronunciation, and meaning; at the naming stage, stay clear of the dominant portions of prior trademarks; and after receiving a notice of rejection, the core work on review is precisely to argue non-similarity of the marks or non-similarity of the goods.
The application of these concepts in practice involves differences in detail; before proceeding, you can consult a record-filed agent on MyTMBee for a targeted analysis.