Research On The Judicial Determination Of Reverse Confusion Of Trademarks

In recent years,there has been a new form of trademark infringement-reverse confusion.Reverse confusion is more insidious,which is different from the forward confusion.Relying on their long-term accumulation of market dominant position,some large enterprises promote a brand overwhelmingly.And the trademark is the same as the registered trademark of an unknown company or person in the market.In addition the trademark can be similar to it.The market power of large enterprises eventually makes the trademark of small business downtrodden.The dividing function of the trademark of small business has been cut and erased.Even more serious cases is that the move will damage the reputation of small businesses.With the volume of business dropping sharply,it is difficult for the small form to continue to survive in the market.On the other hand,with the function of dividing source of goods,trademark is a link between the goods and goodwill.If the trademark becomes indistinguishable,consumers will not be able to buy the products in line with the mind.Therefore,it is particularly important to forbid the reverse confusion of trademarks.Since the law has not make rules for this new form of trademark infringement,in our judicial practice,judges usually use the way of identifying the traditional confusion of trademarks.They think that it is only necessary to determine whether consumers mistake the products produced by the users of the latter trademark for the first-time producers.If the confusion does not happen,then the court will judge that infringement does not occur from the point of view that the later trademark has market power and the previous trademark is inherently weak.This is contrary to the legislative purpose of our trademark law,and also contrary to the principle of fairness and justice.The United States has a longer history of identifying the reverse confusion.It has a more mature theory of reverse confusion of trademarks.Whether the consumer will be confused will be the central issue in identifying trademark infringement.The specific considerations in identifying the reverse confusion in American judicial practice are also more systematic.Although the United States and China have different national conditions,they can provide some reference experiences for legislation and judicial practice in our country.Therefore,in the process of judicial determination,on the one hand,it is necessary for the judges to recognize the difference betweenthe forward confusion and the reverse confusion,and on the other hand they must use the dialectical view to deal with the judicial experience of United States and find a criterion that meets the national conditions of our country.Only in this way can we safeguard the interests of trademark owner and meet the requirements of the times.