On The Trademark Reverse Passing Off

The "Maple leaf" & "Crocodile"case, which took place in 1994, can be rated as in the first involving reverse passing-off in our country. Because no laws and regulations can be used to regulate this kind of behavior at that time, how to deal it become the focus that people pay close attention to. Since then , a deepening and lasting discuss has launched in intellectual property field to reverse passing-off. Especially the nature of reverse passing-off and the legal application to this behavior has been focuses disputed of scholars all the time in our country. Item 4 of article 52 of " Trademark Law " revised newly in 2001 says: "without trademark registrar's consent , change registered trademark and then put the goods into market ", infringe the register's exclusive right to use a trademark. It shows clearly that this behavior is a kind of infringement exclusive right to use a trademark, and the behavior has been included in the law of our country. The judicial authority will avoid the presenting awkward situation that there are no laws to abide by while dealing with this kind of case in the future. In our country, the theory of reverse passing-off is still not perfect , but various kinds of reverse passing-off behavior take place frequently among our country social life , so author think it is necessary to study deeply it, to propose as many as possible that the suggestion perfects it, in order to regulate it effectively.This text is divided into six parts altogether:First part is the summary of reverse passing-off. In this part, the definition ,type and characteristic are described .These are the foundation of analysing reverse passing-off followingly.Second part is the production and development of theory of reverse passing-off . The theory developed on the basis of imitating theory . During the process of trying a amount of cases involving the false describe source to the goods , the American court have chosen the theory of reverse passing-off. Through half a century -long struggle, this theory in the 1980s'got general acceptance at last, and it is applied to more and more situations . At present, how to apply it reasonably becomes people's concern gradually.The third part is the nature of the behavior of reverse passing-off of trademark . From the point of view of original owner of a trade mark , it is a kind of trade mark tort. From the point of view of consumer's rights and interests , it is a kind of swindle consumer's behavior. From the point of view of market competition, it forms the illegitimate competition.The fourth part is the legal adoption of the behavior of reverse passing-off of trademark. This section compares the function of "the general rule of the civil law ", "Law on the Protection of Consumers' Rights and Interests ", " law against competition by inappropriate means " and "the Trademark Law"; the difference result of giving the right to consumers and to the original owner of a trade mark; meanwhile, from the essential function of the trade mark , it is a kind of trade mark tort .So the author draw the conclusion : " Trademark Law " is better to adjust the behavior of reverse passing-off of trademark, and "law against competition by inappropriate means" can be as a supplementary.The fifth part is evaluation and analysis to article 52 of new " Trademark Law ",and suggestions of perfecting.The sixth part is the study of criminalize the reverse passing-off of trademark .