The Restrict Of Reverse Passing-off In The Civil Law

In recent years, there has been much dispute over the increasing cases concerning reverse passing-off trademark. Although the detailed implementing rules have been formulated in accordance with the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law), they are too general to restrict the reverse passing-off, which is ulterior and dangerous. If the phenomenon is not regulated effectively, it will have a great impact on the development of China's market economy. In response, the phenomenon is given an in-depth study and some suggestions are put forward to better the regulations concerned. The paper is divided into the fowling three parts.The first part discusses the reverse passing-off with a focus on the definition and how it is restricted. The definition of reverse passing-off appeared in United States and Article 43 of Lanham Act in 1946 regulated this behavior for the first time. In China, Professor Zheng also provided a penetrating insight into the behavior and specified its definition, that is, the behavior of replacing the trademarks legally attached to the commodities by one company with its own trademark and then putting them into market for sale without the authorization of the proprietor of the registered trademark. Through the comparison with special purchase for resale and production through fixed trademark. the reverse passing-off is clearly defined. Furthermore, the nature of behavior is analyzed as well, for only by the realization of it nature and potential harm can we provide a comprehensive and effective regulation of reverse passing-off.The second part illustrates that why the analysis of reverse passing-off is conducted. The danger of the behavior can be well perceived from the first part of the paper. The people who conduct the behavior subjectively mean to pursue personal interest and objectively take advantage of the credit standing of other commodities, which therefore infringes upon the rights of those who conduct business in accordance with law. Furthermore, since the people try to pursue personal interests by covering the origin of commodities, the behavior also infringes upon the rights of consumers and inevitably disturbs the order of market economy. It should be regulated with a view to the legal rights and interests it violates.The third part is the body of the paper, discussing the suggestions to modify some regulations in Trademark Law. Article 52 can restrict the behavior of reverse passing-off to some extent, but this behavior appeared lately, still new to legislation, so some problems remain to be settled with regard to Article 52. As for the suggestions to modify the regulations concerned, it is divided into four parts: firstly, the object of reverse passing-off is improved, the difference between trademark right and exclusive right is identified, and the suggestion is made to identify reverse passing-off in those trademark not registered in China as reverse passing-off. Secondly, the behavior of reverse passing-off is redefined, that is, it includes not only the behavior of replacing trademark of others with its own one and putting into market for sale, but also the behavior of gaining personal interests by the advertisement of the commodities. In brief, the identification of the behavior should be based on the nature of the behavior. Thirdly, the types of reverse passing-off are supplemented. Trademark Law in China only provides regulation on explicit reverse passing-off rather than concealed reverse passing-off. Fourly, foreign legislation is suggested for reference in the process of modifying the liability system of reverse passing-off. It is considered a special infringement behavior, which therefore infringement liability reverse theory can be applicable to lessen the evidential burden on the part of victims. Besides, the punitive damage system should be adopted as well, which can restrict the reverse passing-off.With the introduction of the above mentioned three parts, it is hoped that the comprehensive understanding of reverse passing-off can be acquired to guard against this behavior and it is also expected that this paper can be of some help with regard to the legislation in China.