Research On Trademark Infringement & Civil Liabilities

Trademarks have been an important part of our life through a lot of products, services and advertisements we can see everywhere. To the consumers, they obtain what they want by the identity of the trademarks. To the owners of the trademarks, the manufactures and the authorized distributors, the Trademark Loyalty of the consumers has brought huge market shares and great financial returns to them. Of course, the trademark infringement and related legal problems come up quickly upon the economic development. This Article aims to analyze the trademark infringement and its civil liabilities, and discuss the features and types of the trademark infringement, the constraints of trademark rights, the liability principles and civil liabilities thereof.This Article comprises following four parts:Chapter No.1, Summarization of Trademark Infringement. Firstly, it introduces the features and basic types of trademark infringement. Secondly, it analyses the basic procedure to identify trademark infringement, and anatomizes the practice and theory regarding the identification of trademark confusion in US with some trademark infringement cases of US. Finally, it compares the two different regulations in China and US, and raises some comments for the identification of the trademark confusion in China. This Article suggests that we can learn from US practices to make comparisons between the commercial channels, advertising relationships, potential customer levels of the parties and consider the real evidences of confusion. Above principles are very close to the marketing of the enterprises and convenient for evidence collection.Chapter No.2, New Trademark Infringements & Constraints of Trademark Rights. New trademark infringements occur very frequently, such infringements become more and more complicated and hard to be discovered. Firstly, this Chapter mainly analyzes three new trademark infringements: Reverse Counterfeit, Reverse Confusion and Association according to some cases, and raises some comments for the revision of China trademark law and regulation.:Regarding Reverse Counterfeit, whereas the recessive reverse counterfeit cases become more and more, this Article suggests that the recessive reverse counterfeit be defined as one of the trademark infringements in the next revision of the PRC Trademark Law, which will be helpful for the enforcement authorities to fight against trademark infringements more efficiently, but also be better to protect the trademark owners'rights and interests thus maintain good market system;Regarding Reverse Confusion, this Article suggests that we learn from the experiences of US and other countries to define Reverse Confusion as one of the trademark infringements. In addition, in consideration of the special situations of such cases, the civil liability of such infringements should be further studied, and the damages compensation of such cases should consider whether the defendants have fault;Regarding Association, some courts have adopted the Desalting Theory in practices, some judges have apparently supported the Desalting Theory in some occasions outside of the courts, but there is no valid regulations about the Desalting Theory so far in PRC law system. Whereas the practice needs and the rationality of the Desalting Theory, it will result in the disunity of the law enforcement to avoid such legislation, this Article suggests to import the Desalting Theory in the next revision of the PRC Trademark Law, and definitely provide the applicable conditions to uniform the measures of law enforcement and avoid the abuse of the trademark owners'rights.Secondly, this Chapter analyzes three major constraints to trademark rights: Gray-Market Goods, Fair Use and Prior Use Right, and raises some comments for the revision of China trademark law and regulation in the future:Regarding Gray-Market Goods, this Article suggests that definite provisions should be included in the next revision of PRC Trademark Law according to international trade environment, science and technology development and the actual needs of PRC to connect with the world. In addition, with the economic global trend, to prohibit parallel import is a must, but we can provide step by step: under current circumstances, parallel import should be permitted in PRC; in the long run, parallel import should be prohibited, but some exceptions should be provided to minimize the adverse effect;Regarding Fair Use, the PRC Trademark Law Implementation Regulation has included the issues of Fair Use, but the trademark infringements related to internet will become more and more with the rapid development of e-business. This Article suggests that the trademark infringements related to internet and its fair use should be definitely provided to make up the legislation vacancy.;Regarding Prior Use Right, this Article suggests that we should learn from Japan and Taiwan in next revision of China Trademark Law, the Prior Use Right should be definitely provided, in addition, the un-registered trademark owners can only use in a certain scope to balance the rights and interests between the parties.Chapter No.3, Liability Principle of Trademark Infringement. Firstly, this Chapter introduces three liability principles with some cases. Secondly, it analyzes the relationship between liability principle and damage indemnification, and has a further anatomy of the unique civil liabilities system in China. Finally, it concludes that the Liability with Fault Principle together with Liability with Putative Fault Principle under certain circumstances should apply to the trademark infringements in China.Chapter No.4, Civil Liabilities of Trademark Infringement. Firstly, this Chapter introduces three main civil liabilities of trademark infringement: to stop infringing, to eliminate adverse effect and recover reputation and to indemnify damages. Secondly, it restates the unique civil liability system of China just as mentioned in Chapter No.3, thus concludes that the trademark special rights claim and damages indemnification claim should be provided separately, and suggests to add the limitations to trademark owners'rights to prevent the rights to be abused.