Conflict Of Interests And Solutions Etween Trademark Owner And Creator Of Commercial Reputation

In traditional trademark infringement cases, the plaintiff is usually a big company and has established a good reputation within a certain scope, while the defendant is in a relatively weak market position. The defendant trys to take advantage of the plaintiff’s goodwill and commercial reputation to seek illegitimate interests for himself of free-rider psychology. On the contrary, in reverse confusion cases, the defendant’s market position is much stronger than the plaintiff, so that consumers mistakenly assume that the plaintiffs goods or service come from or related to the defendant’s. That means in reverse confusion cases, the owner of the trademark is not consistent with the primary creator of commercial reputation, so conflict appears.Though Such cases happened not so frequently as direct confusion cases, in practice it could still be seen happen from time to tome.The latest case between Apple Inc. and Proview Technology Shenzhen Co., Ltd. over the iPad trademark dispute received widespread attention because of Apple’s powerful market force,and it is also a typical representative of such case worthy of analysis. However, rules which apply to the traditional infringement cases can not be completely apply to reverse confusion cases, otherwise the judgment would be unfair.This article will analysis from several aspects as following:firstly,making a brief introduction of the iPad trademark infringement case and the legal issues involved; Secondly, discussing the necessity of protecting the creator of commercial reputation by interpreting some basic concepts such as trademark and commercial reputation; Thirdly appling reverse confusion theory which was developed by judicial practice in the United States to the case, and judging whether Apple constitutes reverse confusion infringement; Finally providing two feasible solutions to deal with interests conflicts between trademark owner and commercial reputation creator:clearly identify the constitutive requirements of reverse confusion and its liability in legislation; make some exceptions in compensation liability rules for reverse confusion.