Civil Liability Of Trademark Reverse Passing Off

The end of last century, with the rapid development of commodity economy, trademark reverse passing off came out in China. And abroad, study on this field has been carried out for nearly half a century. The theory of trademark reverse passing off has been more mature. Maple case, Chinese scholars began to pay attention to this field, and carried out a wide range of research on the legal nature and regulation.Debate focused on whether the trademark reverse passing off constitute trademark infringement. After joining the WTO, Chinese legislative body amended the Trademark Law in time. Trademark reverse passing off is deemed to be infringement.Trademark reverse passing off refers to an act by which someone removes the trademark legally used on a certain commodity, replaces it with his own without the consent of the owner of that trademark, and finally sends it to the market. The object of trade reverse passing off is the complex object, related to the conductors, the invaders and the consumers. Trademark reverse passing off impacts the normal function of trademark, at the same time, violates the right to use trademark. Therefore trademark reverse passing off is an unfair competition, a violation of the legal rights and interests of consumers, in essence, is a trademark infringement.In the field of tort law, the principle of tort liability is just for the responsibility of damages. The damage liability of trademark reverse passing off also applies the principle of negligence liability, which is the same as the rule of TRIPS agreement in this area. The constitution of tort responsibility of trademark reverse passing off should apply the four elements, to emphasize the unlawful behavior and the fault subjective. Chinese Trademark Law on reverse passing off should be explained dilate, and reversed the onus of proof in proceedings, established a rational system for civil compensation, determined the scope and amount of compensation. We should perfect the legislative provisions of this behavior, strengthen the judiciary in the operational practice and increase regulation, finally construct the completed civil liability system of trademark reverse passing off.