Study On Determination For Infringement Compensation Amounts Of Trademark Reverse Confusion

Trademark Reverse Confusion is the hot topic in judicial practice area recent years.It is even more controversial when it relates to the assessment for the infringement compensation amounts of Trademark Reverse Confusion.In trademark infringement dispute between Zhou Lelun and New Balance Trading(China)Company Ltd.(hereinafter referred to as “New Balance Company”),the courts of first instance and second instance both agreed that the act of New Balance Company should be defined as trademark reverse confusion,however,they rendered distinctively different sentences around the amounts of infringement compensation.The court of first instance determine that the defendant New Balance Company should pay the infringement compensation at the amount of 98 million Yuan,while the court of second instance adjust the amounts to 5 million Yuan,which is almost one twentieth of the prior sentence.The great difference of the compensation amounts draw comprehensive attention and lead to long-term discussion.Regarding the infringement compensation of trademark reverse confusion,the courts in china still adopt the same compensation standard as the ordinary confusion,namely the compensation standard stipulated in article 63 of the Trademark Law.However,said standard cannot precisely reflect the nature of reverse confusion.As a result,infringement compensation determined by the courts were not consistent and reasonable,and cannot effectively balance the interest of trademark owner,trademark user and the public.This paper attempts to analysis the theoretical basis and the nature of trademark reverse confusion system,and review and discuss the mainstream perspective regarding the determination of infringement compensation amounts of trademark reverse confusion based on the difference between reverse confusion and the ordinary confusion.As a conclusion,this paper proposes that the market value of the trademark and the subjective fault of the latter user of the trademark,and suggests imposing the standard of “Multiples of Royalty plus Punitive Damage”.This paper concludes the perspectives relating to the determination for infringement compensation amounts of trademark reverse confusion in academic circle,and studies the relevant issues systematically through the method of case analysis,legal research and documentation investigation.This paper divides into five chapters: Chapter 1 is Introduction,which states the reason for selecting the topic,and the background and method of study.Chapter 2 introduces the relevant background knowledge of trademark reverse confusion,including basic theory of trademark confusion and relating legal stipulations and judicial practice.Chapter 3 analysis the current four compensation standard of trademark reverse confusion,and predict that ignorance of the difference between reverse confusion and ordinary confusion is the crucial reason for the inappropriate determination of the compensation amounts of trademark reverse confusion.Chapter 4 raises suggestions for improving the reverse confusion system of our country based on the prior three chapter's analysis,namely the unique nature of reverse confusion should be respected,and the market value of the trademark and the subjective fault of the latter trademark user should be considered as the main factor to determine the infringement compensation.Furthermore,this paper suggests adopting the standard of “Multiples of Royalty plus Punitive Damage” as the unique compensation standard of reverse confusion.With respect to the relevant legislature,the paper suggests making explicitly stipulations regarding reverse confusion and eliminating the legal sequence of the compensation standard when revising the trademark law,so that to make better coordinate with the standard of “Multiples of Royalty plus Punitive Damage”.Chapter 5 is the Conclusion,making the induction and summarization of the whole contents of the paper.