Research On The Trademark Reverse Confusion

The reverse confusion is that the junior user adopts the same or similar mark with the senior user's, and then the junior user's promotion of the mark so overwhelm the use by the senior user that the consumers have mistaken the goods of the senior user's come from the junior user or associated the senior user with the junior user.The doctrine of reverse confusion was firstly appeared in the case Westward Coach Manufacturing co,Inc. V. Ford Motor co,inc. With the increase of the similar case, each court gradually accepted the doctrine of reverse confusion, and finally admitted its location in the trademark case and laid the compared regulations by the cases. Now, we are perplexed by the trademark infringement of reverse confusion. Thence, to complete the trademark theory, perfect the trademark law and judicial practice,it's so necessary to study the reverse confusion theory deeply.This article is assigned five parts. The first part is the basic theory of reverse confusion. This part introduced the concept of reverse confusion,the history of reverse confusion and the qualitative of reverse confusion. After studying the world's major countries and regions'law or judicial practice, the conclusion that reverse confusion is trademark infringement is no doubt.The second part is the justifiability of inhibition of reverse confusion. Studying on the divergences for the legitimacy of reverse confusion from four aspects:equity and justice,economic efficiency,the objective of trademark law and the function of trademark,this part then confirmed the reverse confusion is not legitimate whether in theory or practice and should be inhibited.The third part is the feasibility of inhibition of reverse confusion. In the reverse confusion cases, the junior user usually is more powerful than the senior user, and the consumers always mistaken who is the true infringer, so, the reverse confusion cases behave some features such as: the absence of pass-off, the de facto metastasis of trademark and the faintness of the number of damages. These features are different from the traditional forward confusion cases, and to a certain extent, are the obstacles in the process of regulating the reverse confusion cases. However, the so-called obstacles can be solved by the complete rules of infringement and liability, they can not shake the feasibility of inhibition of reverse confusion simply.The fourth part is the regulations of reverse confusion. This part is divined two aspects: the test of reverse confusion and the liability. In determining whether the reverse confusion is trademark infringement, the possibility of confusion should be the focus and two steps should be flowed. First, whether the trademark is protectbile should be judged; second, whether there is likelihood of confusion should be judged by improved Polaroid. Then in determining the liability, the liability rules should be valued, and for the willfulness of the junior user, the reasonable belief is standard. Injunction,damages and elimination of effects are the responsibility of reverse confusion.The fifth part is the construction of reverse confusion system in our country. This part firstly analyzes the necessity of recommending the reverse confusion theory,then gives some advices about how to establish the system.