In Chinese trademark law, the consuming public refers to either the consumers who purchase the goods or the workers who distribute or provide services related to those goods. The standards for determining famous trademarks provide that a trademark is famous if it is renowned among the consuming public and enjoys a strong reputation in China. The consuming public has a broad definition, including both consumers and workers who facilitate that consumption, such as distributors and customer service workers. For example, car parts sold by a third-party brand that car owners may not be aware of but are used by service technicians during routine maintenance and repairs.
The consuming public therefore includes the following categories of people:
- People who produce the goods or provide the services.
- Consumers who purchase those goods or services.
- Distribution channel workers for the goods or services.
Comparison to Other Jurisdictions
The “general public” in China matches what is referred to as the “general public” in the United States. However, China goes further by dividing the public between specialists and laypersons, using this distinction as an element within the infringement determination and applying categorical reasoning using these categories. This approach is inherited from European legal philosophy, which is deeply indebted to Kant’s categorical imperative. China’s semantic structure derives from the French concept of “public pertinent,” which divides society into “public général” and “public spécialisé. ”
When protecting famous marks, United States law uses the passive voice instead of a reference to the public, prohibiting marks that would “be likely to result in confusion, mistake, or deception.” Unlike the categorical approach used in the EU and China, United States courts apply a multi-factor test and do not divide the general public into specialists and laypersons Chinese law does. The multi-factor test approach draws on the consequentialist tradition of Jeremy Bentham’s legal philosophy and provides judges with more discretion.
Hong Kong uses a different term from Mainland China to refer to the concept of the general public, one inherited from English tradition. In UK law, a similarly vague reference is made to “the public” without categorical analysis.
Translation Errors & False Friends
There is another American English term that is a false friend of this Chinese term, the “relevant public,” which in US federal law and similar state statutes refers to “the actual or potential purchasers of the particular goods or services in the marketplace” (Magic Wand v. RDB, 940 F.2d at 640). US federal courts apply the traditional purchaser understanding test in making this determination and refer to the public under this test as the “purchasing public.” Chinese law, however, has no concept equivalent to the US “relevant public.”
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