On The Criteria Of Trademark Reverse Confusion In China

The reverse confusion first appeared in American jurisprudence,and it also was one type of trademark infringement,which began to draw attention from the "Blue Storm" trademark infringement case,after which the relevant cases were endless.In our current judicial practice,there is no difference in the recognition of such cases between reverse confusion and the traditional positive confusion,and the reasoning process is vague.However,the reverse confusion is different from the traditional positive confusion,with its particularity,if the judge deals with such cases in accordance with the traditional positive confused identification approach,which obviously will be questioned,thus the confusion confused standard must be clear.Trademark reverse confuse refers to the use of trademarks after the trademark owner to use,because the later trademark user has a strong economic strength,consumers will mistake that the goods provided by the first trademark owner is provided by the later trademark users or is associated with him.The particularity of the reverse confusion of the mark determines the particularity of its standard.This paper analyzes the problems existing in the judicial practice from the typical cases of reverse confusing the trademark,and makes clear the recognition criteria of the legislation and the judicature of the relevant countries.This paper divided into four parts:Part?raising the Question.Through the cases of "freezing point","blue storm","any tour" and "You Are the One" and their courts conditions,as well as the 11 typical cases the author selected on Beijing University magic network,it is not hard to see that in our country's judicial practice,the "double approximation" standard are mainly used to judge whether it can result in the reverse confusion or have the existence of "confusion".Part ?Basic Theoretical Analysis of the Reverse Confusion.According to the various definitions of the reverse confusion from different scholars,this paper summarizes the concept of reverse confusion.In the case of reverse confusions,the first trademark user has used the trademark in a smaller scale,while the later trademark user with a high reputation extensively promote the same or similar trademark and make it well known by the public,causing consumers to confuse the attribution of the two goods.In the case of the trial of such cases,the judge needs to make a fair judgment on the trademark owner,the later trademark user and the relevant consumer and all their interests need to be concerned.Part ? Analyzing the Current Situation of Judicial Practice in China.At present,the criteria are not clear for Chinese judges in the relevant cases concerning reverse confinement,and the relevant considerations of "confuse the possibility of" are various.Part ? Reverse Confused standards of Trademark in the US.In the judgment of a US court,the following three conditions must be met when determining the reverse infringement of infringing: first,the commercial strength of the later trademark user is sufficient to cover the trademark owner;second,the trademark for the reverse confusing must be protective;Third,the trademark dispute has the possibility of confusion.And provides the Polaroid standard for "confusion possibility".Part Suggestion on the Crit? erion Perfection of Trademark Reverse in China.Based on the analysis of the previous problems and the reference on the criterion of trademark reverse in the US,it is proposed that in the determination of the reverse confuse infringement,four prerequisites should be satisfied,which are existing the legitimate trademark,the infringement with a high market position,the unreasonable use of the trademark and confusion possibility.The consideration factors of confusion possibility need to be specified.