Analysis On The Theory Of Trademark Reverse Passing Off

The 1994 case against Crocodile by Maple is the first case on trademark reverse passing off in China. Due to lack of related provisions on such act by the then Chinese laws and regulations, the applicable law for this case became the focus of attention. The item 4, article 52 of the Trademark Law revised on October 27th, 2001 provides that behaviors of changing the registered trademark and putting commodities with changed trademark into market without securing prior agreement of the trademark registrant constitute infringement of exclusive rights of registered trademarks. The stipulation represents a further improvement of China's efforts in protecting intellectual property rights. It intensifies our understanding on trademark exclusive rights and provides legal foundation for sanctioning trademark reverse passing off. The theory, however, is not mature enough, causing problems in practice. In response to these issues, the writer gives some humble suggestions.The paper covers five parts.The first part,overview on trademark reverse passing off. Fir- st,conside ring the views on trademark reverse passing off, the writer gives its definition as acts of changing registered trademark for oneself or a third party without securing prior agreement of the trademark registrant and sell the commodities with changed trademark. Second, by comparing trademark reverse passing off with passing off, OEM, and reverse confusion, this paper set the criterion for telling apart trademark reverse passing off in real practice. Third, the writer analyzes the reason of its emergence and development. Part one is the foundation for discussing reverse passing off.The second part, nature of trademark reverse passing off. First, the trademark shall not only function as identification but for reputation building. Protection of trademark is to protect reputation. From this perspective, the writer gives its support to putting trademark reverse passing off into the category of violating exclusive rights of trademark. The main reasons are as follows. It gives false information on the source of the commodity; it...