The Legal Regulation Of The Reverse Trademark Counterfeiting

Reverse trademark counterfeiting, refers to in the absence of the original trademark permission, after the behavior of people through the proper way for the original trademark paste logo merchandise, change or remove the original trademark, the trademark was replaced after the goods back into the market traded behavior. Close contact between commodities and trademarks are the behavior of cut, the behavior not only for the original product trademark holders to establish some damage and development of goodwill, which cause economic loss, but also the recognition of trademark infringement, mislead consumers, violation of consumer’s right to know, more against the principle of good faith, is an act of unfair competition, and affects the healthy and orderly development of the market economy.It is because of reverse trademark counterfeiting the social harmfulness, so it’s very early attention by foreign legal circles. In the process of legislation, civil law countries and common law countries, have done the regulation, just because the understanding of the behavior of different nature, so the regulation pattern is also different. Our country from1994"Maple Leaf" v."crocodile" cases began to pay attention to and study the reverse trademark counterfeiting, and in the2001revised "trademark law" clearly on the behavior of the provisions, but because China started late in the relevant legislation, so both the theoretical research and legislation are yet to be developed. This article mainly from the angle of improving legal regulation, the use of semantic analysis in jurisprudence method, comparative analysis method to study and research, specifically from the following four parts:The first part, the first mainly describes the concept, reverse trademark counterfeiting features, and its related behavior, and then focuses on the nature of the reverse trademark counterfeiting. First of all, the acts constitute misleading to consumers, make the right to judge the impact of consumer, a consumer fraud act. Secondly, fake is taken "hitchhike" form, to sell the goods of others, is a kind of unfair competition behavior. Again, the behavior is a trademark infringement. Finally, some scholars believe that the reverse trademark counterfeiting does not constitute trademark infringement, in the part of the scholars of the question, one by one are compared and analyzed, then based on the "general rules of the civil law" about the general tort factor, further analyses, in order to show the reverse trademark counterfeiting no doubt is a trademark infringement. This part is to find out about the reverse trademark counterfeiting is a kind of what behavior, is the premise and foundation of the legal regulation of the optimization of the reverse trademark counterfeiting.The second part, the preliminary study on the legal regulation of the reverse trademark counterfeiting abroad. The legal regulation of the main two modes:one is single track, with "trademark law" to regulate, on behalf of the state to France, Australia, Italy, or the use of "Anti Unfair Competition Law" regulation, representatives of countries such as Germany, Japan; two is the double track system, which is the two department regulations, the representative countries are USA. Through this part of the presentation, know most of foreign countries is how to regulate the behavior of reverse passing off of trademark law, and evaluating the regulation situation abroad, to lay the foundation for the perfection of the legal regulation of the reverse trademark counterfeiting in china.The third part, describes the status of the legal regulation of the reverse trademark counterfeiting in China, points out the related problems. For example:the "trademark law" regulation of the reverse trademark counterfeiting is explicitly, which is a great progress, conform to the trend of the world but flawed, the provisions, such as the related concept is not clear, this is not conducive to apply its to combat counterfeit trademark reverse.The fourth part, based on the above content, the reverse trademark counterfeiting try to put forward the suggestion of the legal regulation of. The first part we compare "trademark law""Anti Unfair Competition Law" and "consumer protection law", pointed out that the optimization of regulation in China’s trademark law applicable selection, should be the main priority for "trademark law", in the law can not be regulation or regulation is not comprehensive combined with "Anti Unfair Competition Law" is applicable; and then according to the problems mentioned in the third part, the one one put forward a sound proposal:first to "trademark law" which reflected the problems, proposed the first, will be "registered trademark" changed to "enjoy the final disposition of the people" of the registered trademark; second, increase the provisions for the recessive reverse passing off; the third, appropriately expand the explanation of "the market" one word; fourth, there will be no protection for well-known trademark registered in accordance with the provisions of the law into the "trademark law"; fifth, application of the principle of inversion of onus probandi. Secondly, the problem according to the "Anti Unfair Competition Law" regulation, recommendations are provided to increase regulation of the reverse trademark counterfeiting clear in this method, the application of the method can be directly according to the provisions, to crack down on counterfeit trademark reverse the better.