Research On Damage Compensation Of Trademark Reverse Confusion

The concept of trademark reverse confusion was first widely discussed in the "Blue Storm" case.It is not a traditional concept of trademark law and it is not well provided for in trademark law.However,with the development of society and the expansion of information dissemination,trademark infringement patterns are constantly diversified.In fact,there is no essential difference between reverse confusion and forward confusion.However,because of the infringement purpose differences,the damages caused,as well as the disparity between the two parties gives this type of case a certain particularity in determining the infringement and damages.This paper will analyze the considerations and calculated damage standard in the reverse confusion case through the analysis of the damages.Around this theme,this paper is divided into a five part analysis.The first chapter will firstly introduce the reverse confusion concept,which refers to the misimpression that the junior user is the source of the senior user’s goods.Secondly,it will introduce the origin of the reverse confusion and the related cases,as well as analyze the development of the trademark reverse confusion in both American and Chinese judicial practice.In the second chapter,through the empirical analysis of the trademark reverse confusion cases in China,this paper will point out the application status and the existing problems of the standard of damage compensation in the reverse confusion case.The author selected all the cases of reverse confusion which have been compensated for damages since 2002 thus discovering that the damage compensation standard of reverse confusion in China was still based on statutory compensation.At the same time,this chapter also analyzes the legal basis of the trademark damage compensation standard in the reverse confusion case and considers that the method of calculating damages that are based on the loss of the plaintiff,the profit of the defendant and the statutory compensation shall not apply to the trademark reverse confusion case.Based on the previous chapter,the next analysis examines the damage of reverse confusion.Rather than seeking to profit from the goodwill which was captured in the senior user’s trademark,in the reverse confusion case,the junior user saturated the market with a similar trademark and thus overwhelmed the senior user.The result is that the senior user loses the value of the trademark including its product identity,corporate identity,control over its goodwill,reputation,and the ability to move into new markets.Finally,a look at the interests balances between the trademark owner,the infringer,and the public.Combined with the abstract characteristics of the damage in reverse confusion,chapter four demonstrates the feasibility of using the multiple reasonable license fee as the damage compensation standard in the trademark reverse confusion case.First,the author will analyze the rationality of the license fee as the standard of damages compensation in the trademark reverse confusion case.Second,analyze the typical cases in the United States that use a license fee as the standard of damage compensation in reverse confusion.In the end of this chapter,it will analyze the other methods used in the calculation of counterfeit cases of trademark infringement in judicial practice.Finally,the article concludes that multiple reasonable license fees is considered as a calculation method of the trademark reverse confusion case.Based on the analysis in chapter four and chapter five,the author will put some suggestions on the standard and consideration factors of calculating damages in the reverse confusion case.First,an examination should break the order of damages calculated under Article 63 of the Trademark Law and use the reasonable license fee in the third place as the basis for calculating the amount of damages without need for exhaustion of the plaintiff’s loss or the defendant’s profit.Secondly,the determinants of reasonable license fees are analyzed from four perspectives: past permit,market license fee,trademark value and the competition relation between two parties.As well as the determination of multiple reasonable license fees that are analyzed from the subjective factor,trademark expansion process,and the use of the trademark.Damage compensation as a primary problem in the trial of intellectual property cases proves difficult to have a uniform standard.The trademark reverse confusion case as a new infringing model,the current damage compensation standard is still in the exploratory period.This examination shall conclude that the damage characteristics through the empirical analysis of reverse confusion case,and suggests that multiple reasonable license fees should be used as a recommendation for the calculation of damages,and it is hoped that it will contribute to the follow-up study.