The Judicial Determination Of The Infringement Behavior Of The Reverse Obfuscating Of The Trademark In China

China introduced the concept of "confusion" in the newly revised trademark law in 2013.Confusion means that operators engaged in market trading activities use illegal means to make false statements about their goods or services,or use other people’s intellectual achievements to improve the sales of their goods or services,thereby causing misunderstanding,harming competitors and consumers,and undermining the market order.However,compared with the traditional confusion infringement,a new type of trademark infringement in practice,"trademark reverse confusion infringement",is more concealment and complexity."Infringement of trademark reverse confusion" simply refers to in the trademark user without permission to use the same prior trademark identical or similar trademarks,and through the propaganda that consumers think prior trademark rights of goods or services from a form of trademark infringement in trademark user.Compared with the traditional positive confusion,the biggest difference of reverse confusion lies in the confusion direction.It means that the product of the consumer will be mistaken for the product of the first person,not the product of the person who is confused by the fact that the product of the product is derived from the person who has the trademark.In the judicial practice of our country,the majority of judge identify the reverse obfuscation by referring to the identification standard of the positive confusion,ignoring the particularity of the reverse confusion,which can easily lead to the confusion of the judgment result.Through the analysis of relevant judicial cases in recent years in China,it can be found that the problems existing in the judicial identification of the reverse confounding infringement of trademark in our country are mainly manifested in the following aspects:First,the lack of identification basis for the reverse confusion of trademark in our country makes the judge have no evidence in the process of identification.Second,there is a lack of unified identification standard and logical order in the reverse confusion of trademark,so that the judge can not make an accurate determination of the behavior.Third,the lack of necessary considerations to assist in the identification of the reverse concomitant infringement behavior,so that the judge can not make a full demonstration of his judgment.In combination with the defects in China’s judicial practice and the practical experience of the countries outside the region concerned about the identification of the reverse confounding of trademarks,the judicial determination of the reverse confusion of trademark in our country can be improved from the following aspects:First of all,it is clear that the infringement nature of the reverse confounding behavior of trademarks makes the judges have laws in the process of determination.Secondly,uniform trademark reverse obfuscating the thinking and standard of infringing act,in this paper,six criteria are summarized and arranged in a logical order.First,the validity of the trademark of the trademark owner is confirmed;The second step is to judge the market status of the latter.The third step examines the "double approximation" of the trademarks and commodities involved;The fourth step is to determine whether the trademark user has "trademark use" for the trademark.The fifth step examines whether the consumer is confused;The sixth step is to review the loss of the prior trademark holder.Finally,it is necessary to improve the identification of trademark reverse confounding infringement,including the significance of the prior trademark,the degree of prudence of consumers,the possibility of cross-field operation,the subjective intention of the user in the latter trademark,and the evidence of actual confusion,etc,to make the argument of the case more convincing.