The Study Of The Infringement Of Trademark Reverse Confusion

Reverse confusion in trademark is an emerging trademark infringement way.In other words,posterior users of a trademark rely on their powerful strength to make the relevant public connect the corresponding trademark with these posterior users by large-scale advertising so as to cut the connection between trademark owner and this trademark,which causes the public to deem that commodities of this trademark owner come from its posterior users,or deem that the trademark owner has violated the trademark right of its posterior users.Comparing with the conventional forward confusion,damages of reverse confusion are more hidden.For the purpose of protecting interests of trademark owners and consumers,maintaining harmonious and steady development of market economy,reverse confusion in trademark should be stipulated.In judicial practices,judgmental criteria in various local courts are different from each other due to the lack of clear legal provisions,which gives rise to situations of "Diverse Judgments for the Same Case".In this paper,infringement cognizance standard is explored by introducing theory of trademark confusion,theoretical analysis and case study.Moreover,suggestions on the existing problems are also put forward.This paper is divided into four parts.In Part One,problem of reverse confusion in trademark is drawn forth,followed by introduction to its concept,origin and history.By analysis on similar concepts,connotations of reverse confusion in trademark are further defined.In Chapter Two,harms that can be caused by reverse confusion in trademark to trademark owners and consumers are analyzed.On one hand,reverse confusion in trademark cuts apart trademark owner and the trademark so that its owner lose control over the corresponding trademark,business reputation of the trademark owner is jeopardized,and capabilities of the trademark owner to enter the market are also limited.On the other hand,reverse confusion in trademark not only violates the right to know and the right of independent selection of consumers,but increases costs required by consumers to search target products.Besides,legitimacy of regulating reverse confusion in trademark is also analyzed based on fairness and justice,legislative purposes of the Trademark Act and economics,etc..In Part Three,nature of reverse confusion in trademark is summarized by analyzing the "Blue Storm Case",the "New Balance Case" and the "If You Are the One Case".In Part Four,system suggestions are proposed for reverse confusion stipulation by analyzing domestic status quo and the existing problems related to reverse confusion in trademark.Identification standard for reverse confusion in trademark in America is introduced;then,according to physical truth of China,criteria based on which reverse confusion infringement is recognized are concluded.For example,there exist trademark using behaviors performed by the posterior users of a trademark;commodities or services of a trademark owner and a posterior user are identical or similar;and,trademark using behaviors give rise to fact of damage as well as damages due to "Confusion".Furthermore,it is emphasized that infringement cognizance for reverse confusion shall not regard subjective faults of an infringer as an element.At present,inconsistent judgmental criteria lead to a situation of "Diverse Judgments for the Same Case".In allusion to problems existing,it is proposed to clearly define reverse confusion infringement in trademark and application scope of reverse confusion at a legislative level,determine identification standard for reverse confusion and pinpoint imputation and compensation criteria related to reverse confusion,etc.