Study On The System Of American Trademark Reverse Confusion

Differ from traditional trademark forward confusion,trademark reverse confusion is that the consumers have misimpression about that the senior user's goods come from the junior user or related to junior user.Reverse confusion happened because the junior user use the same or the similar mark as senior user's on its own goods and then make the densely advertisement,the junior user's trademark and the goods quickly become so famous.And from that acts,the junior user will swamp the senior user's goodwill.Reverse confusion will result in the senior user lose the investment which devote to its own trademark before and also lose the control of its own trademark,finally it can't use the trademark which already have fund goodwill by used before to enter the new market,even it will lose the entity which consumers identified it by its trademark.Of course,reverse confusion will make the consumer confused between different producers and dealers in the market,from this confusion, consumers can't distinguish the resource of the goods.As the trademark law protect the consumer and the trademark owner,and as for promise the equal competition in the market, reverse confusion must be prohibited.And the law must recognize the reverse confusion as the independent trademark infringement pattern.The America case law is the origin of trademark reverse confusion,and in America,it already found the compared integrate reverse confusion theory and the system.However,the theory of the reverse confusion is not consisted in domestic academia,and the legislation of trade mark law also didn't recognize the reverse confusion as the independent pattern of trademark infringe.This article collects abundant of datum from the American case law and the theory,and investigate this system in America by detail.And this article also used many typical cases as analyzing the reverse confusion theory and made the theory link to the case,at the same time used the case as supporting the reverse confusion theory and concluded the development of the reverse theory from the case.This article expecting from researching the America trademark reverse confusion, academia and legislation of domestic will pay attention to this special pattern of trademark infringement.Except the short introduce and the epilogue,this article have five parties.The first part introduced the notion and the harm of the reverse confusion,this part discussed about the base theory background of the reverse confusion,and from comparing the forward confusion to the reverse confusion,it conclude that reverse confusion became an independent trademark infringement pattern;And from addressed the harm of reverse confusion it indicated the reasons of prohibiting of the trademark reverse confusion.The second part had deal with the evolution of the reverse confusion,in this part,it introduced the reverse confusion case law by analyzing the typical case.This part also addressed the origin and the development of the reverse confusion in America.The third part addressed the test of the reverse confusion.This article pay much attention in discussing about the some base test of reverse confusion and analyzing every factor of them.This part concluded the special test for reverse confusion.In this part,the opinion is that the junior user's fault is not necessary in reverse confusion,however the comparability and the competition between junior and senior user's goods is necessary;As the strength of the mark,this part discussed the conceptual strength of the senior user's mark is the base of protect the senior user's trademark right in reverse confusion;As the similar of the mark,this part analyzed that the more similar of the entireties in terms of appearance between the senior and junior user's mark,the consumer will easy confused them as in commercial market.This part finally concluded that when applying the test for reverse confusion,need analyze every factor and from all of them to decide whether the infringe act belong to the reverse confusion.The fourth part addressed the exception of the reverse confusion.Using the reverse confusion to protect the senior user overly will regardless the junior user's interest,so this part discussed about the exception of reverse confusion as to keep balance between the junior and senior user's interests.Although the junior user is easy to fail into the alleged reverse confusion,it can use these defense to argue its normal commercial act didn't infringe the senior user's trademark as belong to reverse confusion.The fifths part is the responsibility of reverse confusion.In this part,the opinion is that the junior user's intention is necessary in damage compensation of reverse confusion.And this part also discussed about the calculate standards of the damage compensation in reverse confusion,and concluded that the traditional calculate standards is not fit for the reverse confusion damage compensation,royalty rate between the senior user and the third party is more veracious.