Research On The Judicial Determination Of Trademark Reverse Confusion Infringement In China

The trademark plays an important role to the recognition of the source of goods or services in the fierce competition of the modern market.Because of its special function,businesses sellers also pay attention to trademark preemption in the process of seizing the market.Therefore,consumers will be confused with the trademark.Different from the general trademark confusion,reverse confusion because of its own characteristics,it is often difficult to identify.Therefore,it should be combined with its characteristics and the possibility of confusion principle of comprehensive identification,but also consider other factors for the identification of reverse confusion.The development of trademark protection in our country is relatively late,and there is no unified understanding to trademark reverse confusion.There is also a big difference in the application of the principle of the possibility of confusion.At the same time,the lack of relevant laws leads to the confusion of the identification.This paper studied the typical cases of reverse confusion in recent ten years.Through the form of the table,with emphasis on the analysis of the judicial standards and the results of the trial,it summed up the current stage of the judicial determination of the plight of the process on the basis of research of "If You Are The One" and "New Balance".It mainly manifested in the current Trademark Law on the provisions of the reverse confusion caused by thelack of confidence;Double similarity criterion and confusion possibility criterion;The chaos identification of reverse order and standard deviation result in a waste of judicial resources of different co contracting phenomenon;Lacking of appropriate considerations results in confusion of evidence,which is not convincing.After summarizing the realistic dilemma recognized by the reverse confusion judicature of China,using the recognition experience of American reverse confusion,as well as combining with Chinese realistic national conditions and judicial environment,I came up of some relevant suggestions for improvement.Firstly,to explicit the recognition standard and order of the reverse confusion,this article designed five recognition standards,which are arranged by the order,1.Investigate the legality and effectiveness of the involved trademark comprehensively;2.Investigate the similarity of the involved trademark;3.Investigate the similarity of the involved product or service;4.Investigate the wisdom of the relevant consumers(or public)or whether it can cause their confusion or misunderstanding;5.Investigate whether the trademark is used after plenty of advertising or the marketing strategy to occupy the market.Secondly,in order to make the truth more accurate and make the judgment more convincing,it adds the relevant concerning factors during the reverse confusion recognition process,mainly including the prior obligee's multi-angulate condition,the practical confusion evidence,the relevant degree of familiarity of trademarks to the consumers and whether it is kind to strive for the trademark registration and application.At last Iextend the relevant items of the current trademark law,mainly involving the 30 th item and the 57 th item of the law,for the 30 th item,to add the confusion possibility as the recognition standard,which benefits to unify the administrative organization and the judiciary organization about the trademark confusion recognition and save the judiciary resources;for the57 th item,after its 2nd point,explicit the detailed infringement way of the reverse confusion,which can increase the recognition self-confidence and persuasion.