Reverse Confusion Of Trademark

With the development of market economy, diverse forms of economic operation are emerging. Trademark is an essential part of market economy, and the forms of infringement are changing along with the economic development. As the most representative of them, reverse confusion is gradually being recognized and accepted by people. As the opposite of reverse confusion, traditional positive confusion is also belong to confusion infringement of trademark. But there are some difference between them, mainly in terms of identified violations and tort liability. In the case of reverse confusion, the comprehensive strength of the accused infringer is usually stronger than trademark owner's. The infringement will make the relevant public mistakenly believe that the trademark owner's goods come from the accused infringer. In this case, the trademark's function of indicating the origin of goods will be destroyed, the expectation of trademark owner to accumulate goodwill and expand market by trademark is suppressed. Besides, the protection of rights is usually expensive and difficult. So it is necessary to rule positive confusion to protect interests of trademark owners and maintain healthy competition of market order.Compared with the United States which has a lot of practical experience during a century, China's theory and practical application of reverse confusion starts later, and the cases of applying the theory to judicial adjudication are rare. But with the development of market economy, such infringement cases are gradually increasing with danger. Thus, how to properly deal with the cases become an important issue in the trademark community. Our country can enrich the theory of reverse confusion by learning from United States on the basis of our law situation, especially in the field of infringement determination and damages liability, so as to guide the judicial practice and resolve such infringement disputes better.This paper can be divided into five chapters. The first chapter introduces the origin and details of “New Balance” case by the court judgment documents, and extracts several focus of controversy about reverse confusion infringement through the pleadings reason between plaintiff and defendant, so as to pave the way for discussing below.The second chapter analyses the identifying of infringement of reverse confusion. Firstly, it clears the nature of reverse confusion by evaluating and discussing typical cases between China and USA through analyzing the concept of reverse confusion; Secondly, the chapter elaborates the basic elements and key elements of reverse confusion. Only if the causal relationship between tort and likelihood of confusion exist, the further judgment of infringement can be carried on.The third chapter is about the tort liability of reverse confusion, mainly on the principles and responsibility types of trademark infringement, and different forms of liability. Combined with “Trademark Law” and the relevant judicial interpretations, the chapter explores how to use an efficient method to bear infringement liability and calculate the compensation to provide a reasonable basis for selecting and identifying infringement of reverse confusion in judicial practice.The fourth chapter discusses the defenses of reverse confusion. Based on the existing laws and the “New Balance” trademark case, the chapter mainly analyzes the conditions of proper use of trademark and the feasibility of prior rights against a registered trademark from the angles of the accused infringer and the trademark owner. It also investigates the influence of trademark effectiveness and the situation of rights-using to the infringement and liability of trademark. Within legal scope, the rights of trademark should be limited to balance respective benefits.The fifth chapter is about the shortage and improving of reverse confusion legal system.This part analyzes the defect in the existing laws and regulations, make some specific recommendations in improving the legislature and judicature. Such as: reverse confusion should be defined in legislation, the standard of infringement should be regulated, the forms of infringement liability should be chosen flexibly, and the infringement defense system should be improved. At the same time, this paper extract some useful ingredients from the administration of justice, so as to provide reference ideas to improve the legal system of reverse confusion and to deal with such disputes.