Research On Judicial Strategy Of Trademark Reverse Confusion Infringement

With the development of the market economy in our country,people from all walks of life have become more and more interested in the protection of trademark rights.As one of the laws regulating market economic relations,Trademark Law has gradually been developed and improved.However,the law always has inherent defects of lagging nature.Reverse confusion infringement lawsuit that gradually entered the judicial practice has brought unprecedented challenges to the traditional trial.Reverse confusion is different from traditional forward confusion.The junior user in the reverse confusion infringement case aims not to use the reputation carried in the trademark of the senior user,but through strong promotion and publicity to make the consumers think that the goods or services of the senior user come from him.This special way of confusion determines that the judicial settlement mechanism is different from that of the traditional forward confusion.The ossified application of the current "Trademark Law" makes it possible for senior user who are often weaker to obtain high compensation.At the same time,the deep-rooted confusion often cannot be reversed by simply stopping infringement.Therefore,as law men,we should think of new judicial solutions to new problems to meet the need of reviewing the ever-increasing reverse confusion of trademark infringement cases.This thesis consists of four parts:The introduction introduces the research status of reverse confusion infringement from judicial practice and theoretical fields,and analyzes the necessity of studying judicial solutions of reverse confusion.This part briefly introduces the argumentation and the innovation of this thesis.The first chapter briefly introduces the overview of reverse confusion.This part includes the concept of reverse confusion,the origin and development of reverse confusion theory,which sort out the theory of reverse confusion.And then the practice of reverse confusion under Trademark Law of People's Republic of China is discussed.The second chapter elaborates on the imputability of reverse confusion and the regulatory system aiming to prevent abusing of reverse confusion lawsuit.The legitimacy of prohibiting reverse confusion mainly includes four aspects:protection of the interests of registered trademark owners,protection of consumers' interests,safeguarding the credibility of the law,and preventing the senior user from taking secondary free rides.The research of regulating means for preventing abusing of litigation are based on the system of obtaining trademark rights in China,And the dialectical method will be used to analyze the harm that may be caused by over-protection of the senior user.Thus the idea that the request for substantive use by the junior user and making lawyer fees as leverage can be concluded.The third chapter mainly analyzes the reverse confusion infringement remedies of China and the United States.Firstly,empirical studies is conducted based on Article 63 of the Trademark Law of People's Republic of China and cases of reverse confusion.This part will analyze the irrationality of the calculation method of infringement benefits,and the harm caused by using the traditional ideological approach of stopping using of the trademark.Secondly,three factors have been proposed that influence the judicial solutions of the reverse confusion case.Finally,study on judicial measures of reverse confusion case in the United States is conducted,which includes issuing bans,liquidated damages,compensation for correcting advertising costs,dual use,etc.This part lays the groundwork for the next part that discusses law transplantation and localization with regard to judicial solutions.The fourth chapter proposes a judicial solution that is applicable to our country.First of all,the author believes that the principle of parties' autonomy should be respected,prioritizing consultation methods to resolve disputes,and the program should be determined based on the three factors that influence the solution proposed in the third chapter.In the event that an agreement cannot be reached,the court should take different solutions depending on the degree of reverse confusion.The final conclusion chapter summarizes and refines the full text.