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According to Article 30(1)(10) of the Trademark Act, "A trademark shall not be registered if:……10) it is identical with or similar to another person’s registered trademark or earlier filed trademark, and if it is to be applied for goods or services identical with or similar to those protected by the registered trademark or designated by the earlier filed trademark, thereby creating a likelihood of confusion among relevant consumers;……」 Therefore, the similarity between the two trademarks and the similarity of goods or services are important factors to consider when determining if there is a "likelihood of confusion."
In this case, WanPay Digital Marketing Co., Ltd. ("WanPay") applied for a trademark registration for use in computer hardware, computer programs, tablet computers and other goods, with its ＂＂pattern ("Double Tick Trademark"), and Amazon com, Inc. ("Amazon") filed an opposition based on its ＂＂ trademark ("Circular Trademark"). The Intellectual Property Office determined that the Double Tick Trademark meets the requirement set forth in the foregoing Article 30 (1)(10) and issued an opposition decision. However, the Intellectual Property and Commercial Court ("IPCC") determined that the graphic design, overall style and appearance of the two trademarks differ significantly due to the "double hook" design and the color, resulting in distinct overall impressions for the public. Therefore, the level of similarity between the two trademarks is relatively low (see IPCC Judgment No.: 111-Xing-Shang-Su-28), and thus the IPCC ruled that there is no likelihood of confusion among relevant consumers.
Nevertheless, after Amazon filed an appeal, the Supreme Administrative Court ("SAC"), considered the fact that:
(1)the two trademarks' circular frames are very similar in terms of curvature, shape, thickness and distance of the lines, the position and angle of the missing corners, etc.;
(2)relevant consumers may be more familiar with Amazon's Circular Trademark than WanPay's Double Tick Trademark; and
(3)the two trademarks may be used in online payments and financial payments, etc.
The SAC held that the IPCC has to further investigate certain factors regarding the "likelihood of confusion" and remanded the case to the IPCC (see SAC Judgment No.: 112-Shang-21).
Based on the different opinions given by the courts in this case, although the similarity between trademarks and the similarity of goods and services are important factors to consider in determining the "likelihood of confusion," other relevant factors should also be considered as much as possible to make a more accurate determination of the "likelihood of confusion."
＂pattern ("Double Tick Trademark"), and Amazon com, Inc. ("Amazon") filed an opposition based on its ＂
＂ trademark ("Circular Trademark"). The Intellectual Property Office determined that the Double Tick Trademark meets the requirement set forth in the foregoing Article 30 (1)(10) and issued an opposition decision. However, the Intellectual Property and Commercial Court ("IPCC") determined that the graphic design, overall style and appearance of the two trademarks differ significantly due to the "double hook" design and the color, resulting in distinct overall impressions for the public. Therefore, the level of similarity between the two trademarks is relatively low (see IPCC Judgment No.: 111-Xing-Shang-Su-28), and thus the IPCC ruled that there is no likelihood of confusion among relevant consumers.