Research On The Judicial Disposal Of Trademark Reverse Confusion Identification

In recent years, with the development of the market economy, cases of trademark reverse confusion have been frequently seen in China, and increasingly showing an important position. However, the trademark reverse confusion differs a lot from traditional confusion infringement in factual definition, standards of recognizing, interests of protecting, handle of infringement, etc. And we can not follow the logic and thinking of the traditional trademark infringement to solve it. In academia, the majority of experts and scholars concerned about the characteristics, damages and constitutive requirements of trademark reverse confusion, but very few of them care about the harmonization of standards and the drawback of settlement mechanism. Therefore, according to the typical cases, this thesis analyzes the problem of the judicial practice by the means of case analysis and the study of comparative law, comparison of foreign, especially about America’s judicial practice, trying to unify the standards and improve the mode of disposal. This thesis is composed by preface and main body :The preface is to put forward question. By introducing the “you are the one” case, analyzing the different opinions between the first and the second instance and Jiangsu TV’s practice after the second instance, this thesis raises two issues to be studied: the first is to unify the standard of trademark reverse confusion; and the other is the mode of disposal of trademark reverse confusion. Thereby, its consistent with the subtitle “in the perspective of the case ‘you are the one’”.The main body is divided into three chapters:Chapter 1 is about the theory of trademark reverse confusion and its recognizing standards. This section is divided into two parts. The first part describes the controversy of the using of the word “reverse confusion”. The second part analyzes the importance of establishing recognizing standards of trademark reverse confusion, summarizes the more suitable standards by comparing and choosing from the standards existing current, and demonstrates its rationality. At the same time, I elaborate the disapproved standards from the personal point. Hoping to provide certain reference for the judicial practiceChapter 2 is the analysis of judicial disposal pattern of trademark reverse confusion infringement and its consideration factors. This section is divided into three parts. First, this section introduces the balance of interests involved in acts of trademark reverse confusion, in this part,I make a classification statistics about the typical cases of trademark reverse confusion from 2005 to 2015, and sum up our country’s current judicial status by this classification statistics and discuss the problems existing in the judicial practice by the form of cases comparison. To show it is necessary to explore an effective disposal pattern of trademark reverse confusion infringement. At the same time, this section analyzes the factors that should be considered when we deal with these cases of trademark reverse confusion behavior in practice by the means of comparing. At last, this section introduces the judicial disposal pattern of the trademark reverse confusion in America, and focus on what we can learn from it.Chapter 3 is the advices proposed about identification standard of trademark reverse confusion and judicial disposal patterns. This section is divided into two parts including legislative proposals and judicial recommendations. on Legislation, this thesis suggests bringing in the concept of trademark reverse confusion and its clear standards into legislation, reaching a station there are laws to abide by; on judicial practice, this paper suggests bringing in the theory of attaching suitable discriminative mark, so that when its difficult to measure the interests of tripartite, we can turn to it, by which to preserve both sides use of the trademark,reaching the balance of tripartite interests.