On The Reserve Passing-off System In The U.s. Trademark Law

Trademark reserve passing-off refers to an act that a person, without the permission of a trademark right holder, removes the trademark being legitimately attached to the goods from the goods and resells such goods under his or her own trademark or unbranded in the market place. The study on the trademark reserve passing-off has begun in China since the trademark case of"Maple Leaf"v."Crocodile"took place in 1994. As a result of lack of relevant laws on such act at the time, the courts were stuck in an embarrassing situation where there was no applicable law in handling such cases. The revised Trademark Law of China was promulgated in 2001, making it clear that trademark reserve passing-off is prohibited for the first time. However, as the provisions on trademark reserve passing-off still need to be improved in the revised Trademark Law and in other relevant laws, thus a relatively complete system of trademark reserve passing-ff has not yet been established in China. The United States (U.S.) is a country where there have the most advanced reserve passing-ff case laws and theories. After the courts'fight against reserve passing-off act over the past century, the U.S. has developed a relatively complete system of trademark reserve passing-off. In order to improve China's trademark reserve passing-off system, it is of great importance to conduct a study on the reserve passing-off system in the U.S. Trademark Law, especially its development in the case laws and theories in trademark reserve passing-off, as well as to conclude and refer to its beneficial experience.The paper consists of four parts: The first part is a general view of trademark reserve passing-off. This part introduces the basic definition, different forms and source of trademark reserve passing-off mainly from the prospective of the U.S. law, which is regarded as the base for the study on the U.S. trademark reserve passing-off system in the following parts; The second part is the development of case laws in the U.S. trademark reserve passing-off. This part elaborates three important stages in the development of trademark reserve passing-off cases laws through three landmark cases and several supporting cases, and concludes the enlightenment in the judicial practice of trademark reserve passing-off based on the analysis and appraisal of such landmark cases; The third part is the theoretical development of the U.S. trademark reserve passing-off. This part begins with the theoretical basis for trademark reserve passing-off and then analyzes the elements and legal nature of trademark reserve passing-off behaviors, based on which a study on the legislation of the U.S. trademark reserve passing-off is conducted; The fourth part is the importance of reference of the U.S. trademark reserve passing-off system to China's trademark reserve passing-off system. This part introduces the current legislation in China's trademark reserve passing-off and then analyzes the problems existing in both of the legislation and judicial practice, and finally proposes several suggestions in order to improve China's trademark reserve passing-off by referring to useful experience in the reserve passing-off system in the U.S. trademark law.This paper systematically investigates the reserve passing-off system in the U.S. trademark law, elaborates three important stages in the development of case laws and analyzes several crucial issues in the theoretical development, and finally proposes some suggestions following the analysis of the problems existing in the legislation and judicial practice of China's trademark reserve passing-off in the hope of contributing my own effort in establishing and improving the trademark reserve passing-off system of China.