The Affirmation Of Infringement In Trademark Reverse Confusion And The Compensation Issue

In the past ten more years, with the development of social and economic life, a new form ofinfringement of trademark confusion gradually appear in people’s horizons―trademark “reverseconfusion”.This paper first introduces the concept of reverse confusion and the origin and developmentof it, and sums up the reverse confusion of several classification in the first paragraph. Then in thesecond paragraph and third paragraph, through introduction and analysis to "G2000" trademarkinfringement,"Blue-storm" trademark infringement and some of the classic reverse confusioncases at home and abroad, this article summarized the hazard of reverse confusion and theconstitutive requirements of reverse confusion infringement, to guide practice, how to determinedthe reverse confusion infringement. In the last, in the fourth paragraph, through analysis andsummary to some of reverse confusion infringement compensation cases inland and abroadjudicial practice, proposed a feasible method to determine appropriate compensation amount thatconsulting the trademark license fee standards and increasing it by some amount, andsummarized several factors in reverse confusion infringement compensation that should beconsidered.The author thinks that in reverse confusion infringement should be considering the actualsituation, such as the strength of a trademark, the level of similarity of trademark signs andproducts, evidence of actual confusion and so on, to judge whether there is any confusionpossibility, and to make judgment. For compensation after constitute infringement, the authorthinks that, determining the compensation amount, in the first place, it should be consider thelosses suffered by the party for infringement, if it cannot be computed anyway, it be determined atdiscretion according to the specific situation under the cap in law, it’s not appropriate that allprofits obtained by the infringer are considered as compensation. If really needed the interestsgained by the infringer during the period of infringement to calculate the compensation amount,or determining by the court at discretion, we should consider those factors such as the infriger’ssubjective fault, the relationship between the benefits obtained by infringer and it’s ownprofitability, also should consider the value factors such as the popularity of infringed trademark, and the plaintiff’s own business profitability, to deduct and discount accordingly.