Trademark Infringement and Confusion: A Perspective Based on

Consumer Cognition

Ruixin Wang

School of International Relations, Sun Yat-sen University, Zhuhai, Guangdong, 519080, China

Keywords: Trademark Infringement, Likelihood of Confusion, Consumer Cognition.

Abstract: In trademark infringement adjudication, similarity is assessed through two lenses: physical re-semblance and

cognitive confusion, with legal validity hinging on consumer misidentification. Trademarks with inherent

distinctiveness receive robust protection against parasitic imitation, while descriptive marks face stricter

confusion thresholds. Industry-specific factors dynamically shape infringement risks: rapid purchasing

decisions in FMCG sectors reduce scrutiny, whereas brand reliant industries amplify vulnerability to subtle

similarities. Judicial practice balances trademark protection with market freedom, safeguarding consumers’

cognitive stability against source misattribution while avoiding overprotection that stifles competition. This

study proposes a dual framework integrating physical feature analysis and cognitive impact evaluation,

reconciling consumer rights with market vitality. It advances a globally adaptable paradigm that harmonizes

legal precision with economic pragmatism, ensuring trademark law evolves alongside commercial dynamics.

1 INTRODUCTION

In the framework of a market economy, trademarks

function as core identifiers for en-terprises,

distinguishing the sources of goods/services and

embodying critical roles such as brand goodwill.

Trademark law seeks to protect exclusive trademark

rights when consumer confusion is likely, with its

essence lying in preventing misperceptions about

product/service origins. Article 57 of China’s

Trademark Law explicitly establishes "likeli-hood of

confusion" as a pivotal criterion for adjudicating

similarity-based infringement, thereby safeguarding

market order (Manning et al, 2021). However,

judicial determinations of "confusion likelihood" face

multifaceted complexities. Heterogeneity in

consumer cognition significantly impacts these

assess-ments: studies demonstrate that consumer at-

tention levels directly influence confusion

judgments—higher attention reduces confu-sion

susceptibility, whereas lower attention amplifies

difficulties in distinguishing similar marks (Yang,

2020). Factors such as physical attributes (e.g.,

design, color), distinctiveness, fame, and industry-

specific characteristics further shape consumers’

cognitive acuity and discernment. For instance, in

fast-moving consumer goods (FMCG) or catering

sectors, rapid purchasing decisions driven by personal

preferences or pricing dilute trademark sali-ence,

minimizing confusion risks. Converse-ly, in

industries reliant on brand reputation (e.g., premium

manufacturing), consumers are more vulnerable to

contextual influences, often associating similar marks

with estab-lished brands, leading to source

misattribu-tion.

Cases A and B epitomize how these varia-bles drive

divergent judicial outcomes. In Case A, the plaintiff,

a leading catering brand, had entrenched its identity

in consum-er perception. Despite the defendant’s

mark bearing high physical similarity, the court ruled

against confusion, emphasizing service

differentiation (Sichuan hotpot vs. Hunan riv-er

cuisine) and consumers’ ability to discern sources

amid hurried dining decisions. In contrast, Case B

centered on the liquor indus-try, where the plaintiff’

s " 郎" (Lang) trade-mark, fortified by decades of

fame, trans-cended its literal meaning. Although the

de-fendant’s mark "夜郎古酒" (Yelang Gujiu) only

shared the core "郎" character, the court deemed this

sufficient to trigger confusion, citing brand loyalty,

historical legacy, and in-dustry-specific consumer

habits that amplify sensitivity to subtle similarities.

These cases, spanning distinct industries with unique

deci-sion-making paradigms, offer archetypal in-

342

Wang, R.

Trademark Infringement and Confusion: A Perspective Based on Consumer Cognition.

DOI: 10.5220/0014374800004859

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Politics, Law, and Social Science (ICPLSS 2025), pages 342-346

ISBN: 978-989-758-785-6

sights into how contextual cognitive dynam-ics shape

judicial reasoning.

Against this backdrop, this study adopts a

consumer-centric lens, conducting a compara-tive

analysis of Cases A and B to systemati-cally unravel

the mechanisms through which consumer cognition

influences confusion de-terminations. By bridging

theoretical frame-works with judicial practice, the

research aims to fortify the precision of "confusion

likelihood" assessments in trademark in-fringement

cases, advancing the scientific ri-gor and fairness of

adjudication in China’s legal landscape.

2 LITERATURE REVIEW

In the realm of trademark infringement adjudication,

the determination of "likelihood of confu-sion" holds

pivotal significance, with jurisdictional approaches

exhibiting broad convergence in practice despite

nuanced divergences. The United States and the

United Kingdom, as the ori-gins of confusion theory,

have historically shaped foundational doctrines. The

European Union (EU) and Japan, meanwhile, adopt

distinct standards: the EU integrates similarity and

confu-sion likelihood as dual criteria, while Japan

employs hybrid standards blending similarity

thresholds with confusion assessments. China,

adhering to an eclectic approach, has developed a

nuanced adjudication framework tailored to its

judicial practice, balancing global principles with

local market realities (Yang, 2024).

Notably, theoretical advancements and empirical

refinements have driven a global shift to-ward the

U.S.-styled multi-factor test methodology. This

approach synthesizes variables such as trade-mark

distinctiveness, consumer attention levels, defendant

intent, and industry-specific practices, offering a

dynamic and context-sensitive tool for evaluating

confusion risks. Such convergence reflects a broader

trend toward harmonizing legal standards in an

increasingly in-terconnected commercial ecosystem,

while preserving jurisdictional flexibility to address

local-ized market dynamics. For instance, Chinese

restaurants across the United States adopt names such

as Jinlong (Golden Dragon) or Hunan Garden not to

distinguish their services or inten-tionally mislead

consumers about the origin of goods, but to signal that

their offerings align with American diners’

familiarity with specific regional cuisines (Hemel and

Ouellette, 2021). By integrating these considerations,

the methodology enables a more comprehensive and

flexi-ble assessment of the likelihood of confusion,

thereby ensuring that trademark infringement de-

terminations adhere to scientific rigor and judicial

fairness. This nuanced analysis prevents overreach in

trademark protection while preserving market

diversity and consumer autonomy.

Drawing from the cognitive element

deconstruction paradigm, Yao Hehui distinguishes

be-tween physical similarity and cognitive confusion,

proposing a "precondition-outcome" separa-tion of

legal elements. He systematically analyzes the

relationship between the likelihood of confusion,

trade-mark similarity, and product/service

relatedness, arguing that these should be treated as

independent criteria: similarity serves as a

precondition for confusion, while confu-sion itself

constitutes the ultimate basis for establishing

infringement (Yao, 2015). This per-spective

challenges the traditional "confusing similarity"

standard, which retroactively inter-prets similarity

through the lens of confusion, thereby falling into

circular reasoning. Yao’s framework provides

theoretical grounds for rejecting the presumption of

confusion based solely on similarity. However, his

work fails to systematically construct the logical

pathway linking consumer cognitive biases to the

legal requirements for confusion, leaving a theoretical

gap for this study to address.

From the normative teleology perspective, Yin

Shaoping employs a systematic interpretation method

to argue that the core function of the confusion

doctrine lies in preserving trademark distinctiveness

rather than merely preventing actual consumer

confusion. His research breaks from the traditional

"consumer contact" requirement, demonstrating the

independence of trademark use in foreign original

equipment manufacturing (OEM) cases. Yin asserts

that the scope of trademark exclusion rights should

hinge on the degree of symbolic similarity itself (Yin,

2024). While this shifts the confusion analysis from

outcome-based judgments to behav-ior-centric

regulation, it inadequately explains the mediating role

of consumer cognition in real-izing trademark

functions, thereby limiting its explanatory power.

Under the systematic thinking framework, Wei

Jialin and Zhu Dong construct a "presump-tion-

rebuttal" dual structure, advocating for a rebuttable

presumption of confusion in "dual-sameness"

infringement cases while broadening the definition of

confusion (Wei and Zhu, 2020). However, their study

primarily focuses on using consumer cognition as a

final standard to overturn infringment claims,

neglecting an in-depth exploration of how consumer

cognitive factors (e.g., attention levels, decision-

making contexts) actively shape confusion

determina-tions. This oversight leaves unresolved

Trademark Infringement and Confusion: A Perspective Based on Consumer Cognition

343

questions about the interplay between cognitive

dynam-ics and judicial reasoning in trademark

disputes.

3 CASE COMPARISON:

DIVERGENT LOGICS IN

TRADEMARK SIMILARITY

ASSESSMENTS

3.1 Separation and Integration of

Physical Similarity and Cognitive

Confusion

In Case A, the court focused on the physical attributes

of the trademarks (e.g., glyph structure,

pronunciation, composition, and color),

acknowledging that while "河底捞" (Hedi Lao) and "

海底捞" (Haidilao) share the characters "底捞" (Di

Lao), the glyphs of "河" (He, river) and "海" (Hai,

sea) differ markedly. For instance, the "河" character

incorporates a three-dot water rad-ical stylized as

flowing waves, whereas "海" employs a bold, square

calligraphic font. The pronunciations also diverge

across dialects and Mandarin. Furthermore, the

parties operated in distinct market segments (Sichuan

hotpot vs. Hunan river cuisine), leading the court to

con-clude that physical similarity alone was

insufficient to trigger consumer confusion (China

Judgments Online, 2019). This ruling underscores the

separation between physical similarity and cognitive

confusion, positing that physical resemblance serves

merely as a precondition for assessing confusion

likelihood, while infringement determinations

ultimately require a holistic evaluation of consumer

cognition.

In contrast, Case B similarly examined physical

attributes (e.g., the shared "郎" character in "夜郎古

酒" (Yelang Gujiu) and the plaintiff’s "郎" (Lang)

trademark). However, the court pri-oritized cognitive

confusion’s erosion of trademark functionality. The

plaintiff’s "郎" mark, through decades of use, had

acquired exceptional fame, with its distinctiveness

transcending the generic meaning of the character.

Although the defendant argued that " 夜郎"

referenced a historical region, the court emphasized

that in the liquor industry, consumers exhibit strong

brand cognitive inertia and adhere to industry-

specific conventions. These factors predisposed

consumers to associate "郎" with the plaintiff’s

iconic brand, conflating "夜郎古酒" (ancient liquor

from Yelang) with "郎酒" (Langjiu), thereby blurring

source identification (IPHouse, 2024). This decision

transcends a narrow focus on physical similarity,

instead integrating trademark distinctiveness,

industry practices, and consumer cognitive habits to

assess confu-sion risks. The court concluded that the

defendant’s mark, by leveraging the plaintiff’s fame

and exploiting cognitive associations, lost its

normative ability to distinguish sources, constitut-ing

parasitic exploitation of a highly renowned

trademark.

This juxtaposition illustrates how judicial reasoning

evolves from isolated physical compari-sons (Case

A) to multidimensional cognitive analyses (Case B),

reflecting trademark law’s adaptive response to

market realities and consumer psychology.

3.2 Variable Weight of Distinctiveness

and Fame

Both cases involved evaluations of trademark

distinctiveness and fame, yet assigned differen-tial

weights to these factors. In the Hedi Lao case, while

"海底捞" (Haidilao) was recognized as a well-known

brand, the court emphasized that the defendant’s

mark "河底捞" (Hedi Lao) employed differentiated

design elements (e.g., stylized fonts and a Hunan

cuisine positioning) to diminish its association with

the plaintiff’s trademark. Consumers were deemed

capable of distinguishing the sources based on the

overall commercial impression, thereby negating

con-fusion risks (China Judgments Online, 2019).

Conversely, in the Yelang Gujiu case, the plain-tiff’

s " 郎 " (Lang) trademark had achieved such

exceptional renown that its distinctiveness

transcended the character’s literal meaning. Despite

the defendant’s addition of "夜" (Ye) and "古" (Gu,

old), the court ruled that the "郎" character remained

the core identifying element, in-ducing consumer

cognitive bias through its entrenched association with

the plaintiff’s brand (IPHouse, 2024).

In summary, when a trademark exhibits

heightened distinctiveness, courts are inclined to

presume a likelihood of confusion unless the

defendant demonstrates that consumers have es-

tablished clear distinctions in perception. This

judicial tendency underscores the interplay be-tween

trademark strength and evidentiary burdens in

infringement disputes, reflecting a doctri-nal

prioritization of protecting iconic marks from

parasitic exploitation.

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4 CASE COMPARISON:

JUDICIAL STANDARDS FOR

CONSUMER COGNITIVE BIAS

4.1 Context-Dependent Industry

Influences

The courts in both cases adopted divergent

presumptions regarding consumer attention. In Case

A, the catering industry’s mass-market nature—

where consumers prioritize non-trademark fac-tors

like taste and price—led the court to conclude that the

general public could avoid confu-sion through

product distinctions (e.g., Sichuan hotpot vs. Hunan

river cuisine). This reflects an assumption of low

trademark sensitivity in industries with rapid, low-

involvement purchas-ing decisions. By contrast, Case

B involved the liquor sector, characterized by high

brand de-pendency and prolonged consumer

decision-making cycles. Here, consumers exhibit

height-ened sensitivity to trademarks, particularly for

iconic brands like " 郎酒" (Langjiu). Even minor

similarities (e.g., the "郎" character in "夜郎古酒")

were deemed sufficient to trigger source

misidentification, given the industry’s reliance on

brand loyalty and historical associations.

This context-dependent nature of consumer

cognition underscores how industry-specific at-

tributes—such as purchasing behavior, product

homogeneity, and brand centrality—profoundly

shape confusion likelihood. Consequently, judicial

assessments of confusion must integrate product-

specific characteristics and consumption habits to

align legal standards with market re-alities. The

rulings thus highlight trademark law’s adaptive

capacity to calibrate protection lev-els based on the

interplay between cognitive dynamics and industry

ecosystems.

4.2 Judicial Adoption of Actual

Confusion Evidence

In Case B, the court explicitly cited "existing

instances of confusion among media and the pub-lic"

as a basis for its ruling, underscoring the critical role

of actual confusion evidence in rein-forcing the

presumption of a "likelihood of confusion" (IPHouse,

2024). Conversely, Case A relied predominantly on

logical inferences (e.g., differences in font and color)

without referenc-ing concrete instances of confusion.

This reveals judicial flexibility in applying actual

confu-sion evidence: when a trademark possesses

exceptional distinctiveness, courts may infer con-

fusion risks through industry expertise and cognitive

principles, even absent direct evidence; conversely,

defendants may rebut such presumptions by

demonstrating actual market differen-tiation.

Collectively, the divergent rulings reflect

trademark law’s dynamic recalibration of protec-tion

priorities. In the catering industry (Case A),

characterized by low entry barriers, diverse business

models, and fragmented market competition, the

malleability of confusion likelihood renders it a

versatile doctrinal tool. Trademark owners may

invoke it broadly, prompting courts to prioritize

market competition freedom over expansive

trademark rights (Trademark Injury in Law and Fact:

A Standing Defense to Modern Infringement, 2021).

Judicial restraint here em-phasizes that "consumer

cognition must be assessed within the holistic

commercial context", preventing overprotection from

stifling innovation among small and medium-sized

enterprises (SMEs) and distorting market dynamics

(China Judgments Online, 2019).

In contrast, the liquor industry (Case B) demands

prolonged brand-building cycles, with consumer

loyalty and brand goodwill serving as core corporate

assets. The plaintiff ’ s " 郎 " (Lang) trademark,

cultivated over decades, had achieved unparalleled

recognition. The court prioritized safeguarding

established reputational order, preventing parasitic

exploitation of highly distinctive marks. Given the

sector’s product homogeneity and consumer reliance

on brand identity, even minor reputational harm to

iconic trademarks risks misleading consumers and

destabilizing market order.

This dichotomy illustrates the interplay between

trademark functionality and consumer cog-nition.

Trademark law does not prohibit all similar uses but

targets behaviors that disrupt the stable link-age

between a mark and its source in consumers’ minds.

The legal framework thus seeks to externally

differentiate trademarks without inducing internal

cognitive biases, balanc-ing protection against market

vitality. By tailoring standards to industry-specific

realities—whether fostering competition in

fragmented markets or preserving reputational

integrity in brand-centric sectors—courts ensure that

trademark law adapts to evolving commercial land-

scapes while upholding its core mission of consumer

protection and fair competition.

5 CONCLUSION

This study employs a comparative analysis of Case A

(catering industry) and Case B (liquor industry) to

elucidate the dynamic and context-dependent nature

of consumer cognition in trademark infringement

adjudication. The findings reveal that the divergence

in rulings funda-mentally stems from structural

Trademark Infringement and Confusion: A Perspective Based on Consumer Cognition

345

differences in industry ecosystems shaping the root

causes of consumer confusion. In the catering

sector—marked by decentralized competition—

judicial emphasis shifts toward safeguarding market

innovation (e.g., Case A’s reliance on "holistic

commercial environment assessment" to curb

trademark overreach). Conversely, the liquor in-

dustry’s brand concentration and reputational

dependency compel stronger protection of trade-mark

distinctiveness (e.g., Case B’s incorporation of

"historical brand goodwill" and "consum-er cognitive

inertia").

The research constructs a three-dimensional

analytical framework—"physical similarity, in-

dustry attributes, consumer cognition"—confirming

consumer cognition as the pivotal variable linking

trademark functionality (distinctiveness, goodwill) to

market dynamics (innovation freedom, order

maintenance). In low-barrier, hyper-competitive

industries, consumer cognition exhibits "high-

frequency, low-involvement" traits, necessitating

trademark protection thresh-olds calibrated to

"competition tolerance." In contrast, high-reputation-

dependent sectors mani-fest "low-frequency, high-

reliance" cognitive patterns, demanding "goodwill

gradient scrutiny" mechanisms. This discovery

challenges the static homogeneity assumptions of

traditional con-fusion theory, providing a theoretical

foundation for differentiated trademark law

application.

However, the study acknowledges two key

limitations. First, its case samples are confined to

catering and liquor industries, omitting technology-

intensive and cultural-creative sectors, thereby

limiting cross-industry generalizability. Second, the

analysis of consumer cognition re-lies on judicial text

interpretation, lacking empirical cognitive science

data. Future research should focus on: Systematically

developing dynamic adjudication standards that

refine con-sumer cognition evaluation metrics (e.g.,

attention levels, decision-making contexts, brand de-

pendency); Quantifying trademark perception

pathways across industries through empirical studies;

Establishing a national "Trademark Confusion Case

Database" integrating industry da-ta, consumer

surveys, and judicial precedents; Designing AI-

driven adjudication assistance systems to enhance

consistency and efficiency.

These advancements will propel the refinement of

trademark law, balancing intellectual property

protection with market vitality, while offering a

"Chinese paradigm" for the global transformation of

trademark legal systems toward context-aware

adaptability.

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