Trademark Reverse Confusion Legal Issues

In the course of social and economical lives'development, there may be various new situations and phenomena emerging. Legal system, although with a lag, still need to respond to those new situations and phenomena accordingly. In recent years, a new form of trademark confusion infringement gradually emerges in people's field of vision: trademark reverse confusion. In the situation of the said confusion, the infringer is often the bigger one who has greater visibility and stronger economical strength, while the infringed is a smaller one who is less famous and weaker. In addition to the difference in subject composition, trademark reverse confusion is different from traditional trademark confusion in many facts, including fact composition, behavior expression, infringement identification and accountability, etc. In order to better meet the needs of real social and economical lives and maintain the interests of trademark right holders and the public, it's necessary to analyze and research trademark reverse confusion related legal issues, and comb out its origin, development, concept, institutional infrastructure, and so on, hoping to make some contributions to Chinese trademark law's further developments and the improvement thereof, judicial practice.This dissertation mainly analyzes and researches trademark reverse confusion related legal issues systematically, and is divided into three parts: introduction, body and conclusion. The body part includes four chapters.Introduction leads a new type of trademark confusion infringement from people's inertia thinking of it. That is trademark reverse confusion. It briefly illustrates the necessity of regulating trademark reverse confusion through the"Blue Storm"case. Then, it indicates the shortcomings in current research and judicial practice about trademark reverse confusion through the analysis of domestic and foreign academic researches and judicial cases.Chapter One is an overview of trademark reverse confusion, which outlines the origin of trademark reverse confusion, clears that it is firstly origin from the United States, and clarifies the process when it appears and initial develops in the United States. Then , it analyzes and researches the concept of trademark reverse confusion. It tries to give a concept fitting to Chinese trademark law's real situation through the analysis of domestic and foreign judicial and academic research.Chapter Two analyzes the basis of trademark reverse confusion from dual perspectives including law and economics. Section one is the law basis of trademark reverse confusion, including the constitutional concept of equality, the law concept of fairness and justice, theory of interests balance in intellectual property and the purpose of trademark law, etc. Section two is the economical basis of trademark reverse confusion, including Locke's labor theory of property rights and the Coase theorem, and the like.Chapter Three is a perspective of trademark reverse confusion's development in China and foreign countries. Section one is overview of foreign trademark reverse confusion's development, mainly analyzing its development process in the United States, also some situations in Europe. Section two is overview of Chinese trademark reverse confusion's development, mainly stating its development in China's judicial practice in recent years.Chapter Four discusses some suggestions to regulate trademark reverse confusion in China. It recommends that confusion theory can be drawn into Chinese trademark law, the legal basis of regulating trademark reverse confusion and its identifying factors shall be clear, and trademark reverse confusion's infringement liability shall be certain, etc.The conclusion summarizes, generalizes and refines the research contents, fruits and purpose of this dissertation.