Research On Trademark Reverse Confusion Theory

Trademark reverse confusion is relatively with the traditional trademark forward confusion and its emergence is the result of the expansion of traditional trademark confusion theory in the confusion direction. Trademark reverse confusion system originated in the United States, but there is no clear provisions of the trademark reverse confusion in American statute law, the system is confirmed and developed through a number of related cases by the United States Courts.The development of American trademark reverse confusion system has experienced from negation to affirmation again to the process of continuous improvement. Trademark reverse confusion refers that the junior user of trademark makes the senior trademark holder’s trademark a higher popularity, which has caused or is likely to cause the relevant public mistakenly believed that the senior trademark holder’s goods or services come from the junior user or mistakenly believed there is some kind of sponsorship, licensing and other relationship between them. Trademark reverse confusion and trademark forward confusion is divided from the confusion direction, the reverse confusion is not only different from the traditional forward confusion on confusion direction and subjective intention but also its damage degree is more concealed, damage result is more serious. Although the trademark reverse confusion has the different classification standard with direct confusion, indirect confusion, pre-sale confusion, sale confusion and after-sale confusion, the trademark reverse confusion can happen in all those circumstances. The relationship between reverse confusion and reverse passing-off is superficially similar but different in essence.The essence of reverse confusion is to attach another’s trademark on their own goods, but the essence of reverse passing-off is to attach their own trademark on another’s commodities.The premise condition of trademark reverse confusion identification is the existence of likelihood of confusion, we should be in accordance with the multi-factor test method and give full play to the role of consumer questionnaire survey to identify likelihood of confusion. Among them, we should pay attention to the difference between likelihood of reverse confusion and likelihood of forward confusion in the specific judgement. The basic elements of trademark reverse confusion identification include four points, namely the plaintiff has the prior registered trademark, the defendant illegal use of plaintiffs trademark, the defendant’s illegal use of plaintiffs trademark makes the registered trademark a higher popularity and the relevant public mistakenly believe that the plaintiffs trademark comes from the defendant or there is some kind of relationship between them.In our country the trademark legislation has not stipulated trademark reverse confusion, but the cases involving the trademark reverse confusion have been appear in the judicial practice. For the reverse confusion issue in the judicial cases, Judges either take evasive attitude or though consider the existence and application of reverse confusion theory in the trial, finally still find the basis of verdict from the existing law. Studying trademark reverse confusion system, regulating the behavior of trademark reverse confusion is necessary either from the protection of rights, maintaining fairness and justice, implementation the intellectual property legal doctrine or following the trend of world historical development, responsing to the realistic needs. Meanwhile, the construction of trademark reverse confusion system in our country also has the realistic feasibility from the angle of legislation, theoretical research and judicial practice.In the context of the third revision of China’s "Trademark Law", studying trademark reverse confusion system, then putting forward the specific content construction of China’s trademark reverse confusion system has great theoretical and practical significance. First of all, We should introduce the likelihood of confusion theory into China’s trademark legislation. Secondly, the constitution conditions of China’s trademark reverse confusion should be defined scientifically. Finally, it is necessary to clear the applicable scope of trademark reverse confusion system in our country, namely the scope of China’s trademark reverse confusion system should not be limited to between trademarks, it can also be applied to between registered trademarks and other commercial logos.