1. Who determines trademark proximity?
    According to Article 10 of the Interpretation of the Supreme People’s Court about Several Issues in the Application of Law in Hearing Civil Disputes of Trademark ( “the Interpretation”), “the people’s court shall, in the application of Article 52.1 of the Trademark Law, comply with the following principles to determine whether trademarks are the same or similar: (1) the criterion is the general perception of the relevant public; (2) the comparison shall be done on both the whole and the major parts of the trademarks while they are separate; (3) to determine trademark proximity, the distinctiveness and fame of the trademark shall be considered when they are under a request for protection”. As to the definition of “relevant public”, Article 8 of the Interpretation provides that “‘Relevant Public’, as is set forth in the Trademark Law, means the consumers related to the commodity or service that the trademark identifies and the business operators closely related to the marketing of such commodities or services”.
    According to this author’s view, the Interpretation raises the question: who makes the decision on trademark proximity? In trademark infringement cases, the proximity between trademarks shall be determined in light of the above interpretation and in the opinion of this author, firstly by the relevant public, i.e. the consumers of the commodities or services that the trademarks identify, other than ordinary consumers. According to the Q&A on Issues in Hearing Civil Trademark Disputes (hereinafter “Q&A”), issued by the Higher People’s Court of Beijing on March 7, 2006, “relevant public” means “the public that has a general knowledge of and experience with the commodity”. Secondly the judge, through comparison and judgment, shall determine trademark proximity. The judge shall, in the opinion of this author, base his judgment on the judgment of the relevant public. If the Interpretation were understood and applied in the manner in which this author understands, both the subjective and objective perspectives would be addressed in a judgment regarding trademark proximity.
    As determining trademark proximity is strongly subjective, the trademark rights involved tend to affect the material interests of the parties. Because the court is the final resort for the parties to protect their rights, if the judge has the sole determining power and errs, the vital interests of the parties would be influenced, because the judge is not necessarily the “relevant public”. However, in the handling of actual trademark infringement cases, the court seldom considers both the subjective and objective factors in the determination of trademark proximity. The author finds in the study of judgments from several courts of law concerning trademark infringement cases that it is the judge that provides the logical interpretation in the determination of trademark proximity; the judge always regards the court as being the “relevant public” when discussing the “general perception of the relevant public”; and seldom, if ever is there a case where the judge has listened to the opinions provided by the “relevant public”.
    This author, as the attorney for the defendant in the first-instance and second-instance trials, provided a great amount of evidence from the wine consumers and distributors that Jiayu Company’s “Jiayu Changcheng and graphic” trademark was not proximate to COFCO’s “Changcheng Pai, GREATWALL and graphic” trademark (Registered Trademark No. 70855), but none of the evidence was even mentioned or accepted by either the first-instance or the second-instance court. Moreover, neither of the courts investigated the opinions of the “relevant public”, and nevertheless, made subjective judgments by regarding themselves as the “relevant public”. This might be justifiable if “the general perception of the relevant public”, as contained in the Interpretation, could be interpreted as "general perception of the judge who stands in the place of the relevant public". However, it confuses this author as to how the judge, rather than the actual relevant public, can determine the general perception of the relevant public. 

2. The criteria for the determination of trademark proximity
    As to the criteria for the determination of trademark proximity, Article 9 of the Interpretation provides clearly that “ ‘Proximate Trademark’, as defined in Article 52.1 of the Trademark Law, means that “the alleged infringing trademark is similar to the registered trademark with regard to its shape, pronunciation or meaning of its words, or to the composition or color of the graphic, or the overall construction of all the constructive elements combined, or the 3-D shape or the color composition of the trademark, which may easily lead the relevant public to mistakenly believe that the origin of the commodities under the alleged infringing trademark is the same as or specially related to that of the commodities under the registered trademark”.
    As far as this author can see, the Interpretation provides the judge, the main decider of trademark proximity, with the principle that trademark proximity shall be determined first by the pronunciation, shape and meaning, and should these be insufficient, by the graphic, the color, the element combination, the 3-D shape, or the color combination. As for the determination of shape, according to Article 10 of the Interpretation, the comparison shall be done, in principle, about both the whole trademark and the major parts, rather than on any one single element that forms the whole trademark, particularly if such a single element is not created by the owner, but is a very common place name or object, such as “Changcheng”, the Great Wall. Further the trademarks shall be analyzed separately during the determination process, for fear of bias resulted from any preconceived ideas.
    In the comparison of “Jiayu Changcheng and graphic” and “Changcheng Pai, GREATWALL and graphic”, on the one hand, the second instance judgment acknowledges that the two are different with regard to the whole trademark, as well as their pronunciations and text meanings– although it is stated indirectly in the context. On the other hand, with regard to the major parts of the trademark, the judgment determines that the two trademarks are proximate on the sole basis that both of them contain “Changcheng” as a constructive element. It totally disregards facts such as that one trademark is round-shaped, while the other is an oblong shape, (“Jiayu Changcheng and graphic” has the text printed over an abstract, dark background of battlements of the Great Wall); “Changcheng Pai, GREATWALL and graphic” (Registered Trademark No. 70855) contains the additional English words “GREATWALL”, and “Brand”, and a distant view of the Great Wall; and strictly in terms of the text, “Changcheng Pai” (“Pai” is indispensable as a constructive element) is obviously different from “Jiayu Changcheng”. It is due to preconceived ideas that the court rendered the judgment that the two trademarks are proximate simply because they both contain “Changcheng” as a constructive element.
    Moreover, as to the determination of trademark infringement, in the opinion of this author, in addition to the comparison between two trademarks for proximity, attention should also be paid to the determination of whether the proximity might easily confuse or mislead the public. Article 11 of Q&A declares that the proximity between two trademarks does not necessarily establish infringement, as another sina qua non, an essential element is required to determine whether the trademark proximity may easily confuse or mislead the public. For such a confusion or mistake, it is a precondition that the commodities under the two trademarks exist simultaneously (surely other factors may be involved here, such as, whether the alleged infringing commodity contains the factory name and address of the defendant; and the value of the commodity, as consumers tend to pay more attention to valuable products and are less easily confused by them). As concerns the instant case, “Changcheng Pai, GREATWALL and graphic” (Registered Trademark No. 70855) has not been continuously in use for many years, which fact, however, is not mentioned in the second instance judgment (the current “Changcheng Pai” wine was not marketed until Jiayu Company raised this argument in the proceedings; “Changcheng Pai” trademark appears on the back of the bottle, a place which may make the mark neglected).