A Research On The Regulation Of Trademark Reverse Passing-off

The issue of trademark reverse passing-off has received attention in many countries, which is also an important component of trademark protection regulation. In both continental legal system and Anglo-American legal system, trademark reverse passing-off is regulated. In legislation practice, different countries have established different forms of regulation regarding the issue of trademark reverse passing-off, exercising mainly single-track and dual-track forms of regulation. For single-track regulation, trademark laws are adopted in Italy, Australia, France, Portugal and etc., whereas anti-unfair competition laws are adopted in Germany, Japan, Netherland and etc.. In countries such as the United States and Canada where dual-track regulations are exercised, both trademark laws and anti-unfair competition laws are adopted.The regulation of trademark reverse passing-off is yet to be well established in China. First, in the realm of civil law regulation, the act of reverse passing-off is only clearly described in the modified trademark law in2001and has not been described in other laws. However, civil law regulation of reverse passing-off should involve not only trademark law, but also general principles of civil law, anti-unfair competition law and consumer protection law. Due to this incomprehensive regulation, trademark reverse passing-off has been rampant in China, escaping proper legal regulation. Secondly, regarding criminal law regulation, article213, article214and article215the criminal code defines acts of trademark crimes, including registration of fake trademark, selling of products of fake trademark, illegal production, illegal selling of illegally registered trademark. Still the above articles have not clearly defined the act of trademark reverse passing-off. Therefore, in order to fully prosecute trademark infringement and to maintain social economic order, more effective regulation is needed to prevent reverse passing-off, and it is thus necessary to include the act of trademark reverse passing-off in criminal regulation.With regard to the aforementioned existing issues in Chinese legislation, the author believes that the following amendments on the regulation of trademark reverse passing-off are necessary:Firstly, in terms of trademark laws,"trademark registor" should be clearly defined; Secondly, establishing legislation regarding regulation of recessive trademark reverse passing-off; Thirdly, extended definitions on "trademark change" and "put into market"are needed; Fourthly, those unregistered but renowned trademarks should be protected; Fifthly, related punishment and compensation should be clarified; Sixthly, converse responsibility quoting should be exercised. Regarding the improvement on anti-unfair competition law, reverse passing-off should be clarified; responsibilities of unfair competition should be clarified. Regarding criminal regulation, new articles concerning reverse passing-off should be introduced and legal responsibilities should be strictly declared.