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Intellectual Property and Commercial Court


2011 Xing Shang Geng (Yi) Zi No. 2

Decision No. 2011 Xing Shang Geng (Yi) Zi No. 2
Date June 30, 2011
Decision Highlight

A trademark is a mark for identification and, as a whole, cannot be dissected. So, consumers with general knowledge and experiences apply general care to purchases. The impression of a trademark to eye observers is based on words and figures as a whole and is not with the dissected and individual parts of such trademark. Therefore, determining similarity of trademarks should be based on the principle of the overall (general) observation. See Supreme Administrative Court Judgment 1972 Pan Zi No. 292. However, a trademark is composed of words, figures, and marks, and among those features, some are impressive and easy for consumers to pay special attention, while some are not easy for gaining attentions. The features that are impressive and easy for consumers to pay special attention are the major part that easily influences the overall impression given to consumers by the trademark. This is the meaning disclosed in the above-mentioned precedent where whether exists similarity of trademarks should be based on the observation of what constitutes the major part of each trademark. So, the method for the major-part observation is subject to the overall-observation principle and is one of supplementary and assisting, solid observation methods for determining similarity of trademarks. Only if a trademark figure must have a specific part that especially draws people´s attentions and if such part makes the distinguishing function of the trademark particularly apparent, then such part can be used for observations by comparison in order to determine whether two trademarks are similar. Though, it is a combinational trademark which, based on the unity of trademark constituents and through the observation of "appearance," "idea," and "pronunciation" as the constituents of the trademark as a whole, is sufficient to be used as an identification mark for trade purposes. If one part is separated and removed, according to the trade experiences or consumers´ observations, there will be something unfamiliarly strange or not nature. Then, it is not allowed to rely on the major-part observation as the principle to serve as an excuse as so to dissect the trademark unity and to erroneously determine the trademark similarity. That is, if the principle of the major-part observation is misunderstood in a way that as long as there is a combination of words or figures, then the comparison is purposefully based on the dissection of a trademark, that is a violation of a nature where the trademark distinctiveness replies on the impression made by the trademark as a whole to consumers as eye observers.


Major-part observation, overall observation

Relevant statutes Article 23, Paragraph 1, Subparagraph 11
  • Release Date:2020-11-13
  • Update:2020-12-07