Trademark Infringement In The "reverse Confusion"

With the globalization of knowledge economy and the intensification of market competition, along with the growth of those small-scale enterprises' realization of the brand protection, in judicial practice more and more small businesses claimed trademark infringement of large-scale businesses. Litigation ensued, which is theoretically called "reverse confusion".Those cases reflected that the harms of reverse confusion haven't been fully realized by relevant administration, and that the infringement components of reverse confusion haven't been uniformed in judicial practice. All of what makes the courts can't find adequate legislative authority for an award of damages in reverse confusion cases. To be brief, not only for academic research but also for the needs of judicial practice, the further research for the reverse confusion doctrine is an active demand.In this dissertation, the legal problems such as the definition of reverse confusion, the justifiability of inhibition of reverse confusion, the infringement components of reverse confusion will be discussed by legal philosophy and economics and in positive analytical way, and during which, the relative cases and advanced theories in the United States will be applied, hoping that any of the efforts will be useful to the solution to these problems.This dissertation consists of five chapters:Chapter I discusses several basic problems in reverse confusion doctrine. The chapter emphasizes the definition and the harms of "reverse confusion" and induces the harms of reverse confusion in various points of view.Chapter II demonstrates the justifiability of inhibition of reverse confusion. Divergences for the justifiability of inhibition of reverse confusion came from the conflict of interest. Applying the theory of Locke's and the fundamental theories used in law and economics, the chapter affirms the justifiability of inhibition of reverse confusion.Chapter III mainly examines the infringement components of reverse confusion. Under contrasting with the traditional infringement components, this chapter suggests that the core infringement component of reverse confusion be "likelihood of confusion" and then analyzes the distinctiveness of reverse confusion and the criterion of the test factors for "likelihood of confusion".Chapter IV mainly discusses the confirmation of the liability of damages and the calculation of the damages. Through analyzing the distinctiveness in liability judgment of the damages in reverse confusion, the chapter suggests a new way to measuring the damages in reverse confusion by drawing examples from the relevant cases of federal courts.In the last chapter, some suggestion is given to perfect the protection system of trademark in China, including modifying the liability principle of trademark infringement, the relevance expression of "likelihood of confusion" in Chinese, perfecting the fire use system of trademark right and use for reference to the shift of right doctrine and etc.