Research On Valuation Of Trademark Reverse Confusion Infringement Compensation

With the improvement in awareness of trademark right protection,the number of trademark infringement cases has increased rapidly.In 2016,there were 27,185 civil trademark cases and 5,990 administrative cases in first instance.In the judicial practice,the determination of the monetary compensation for trademark damages is almost at the discretion of the judge,which lacks in fair valuation.In particular,reverse confusion cases often require a huge amount of compensation,and the rate of appeal for second instance due to discontent over awards is extremely high.In addition,the determination of the awards in the second instance is often obviously different from that in the first instance.Thus,how to determine the awards scientifically and efficiently is the current concern that both practical and theoretical fields pay close attention to.Based on this background,this paper focuses on the trademark reverse confusion cases and the valuation of compensation awards.This paper firstly reviews the domestic and foreign literature on trademark damage compensation valuation and awards on trademark reverse confusion infringement to find out the test for trademark reverse confusion and the specific approach to determine the compensation for damages,which lays the foundation for the paper.Subsequently,the paper does a quantitative analysis on the current trademark legislation and judicial judgments of infringement cases in China,and finds that there exist some problems,such as a flood use of statutory compensation in the practical judgment with the actual application of related factors is rather hypothetical and the judicial satisfaction is lower.At the same time,the paper concludes four typical forms of trademark infringement cases,including confusion,reverse confusion,damage to trademark functions and trademark infringement cases involving online trading platforms,and the paper mainly analyzes the reverse confusion cases.The paper then tease out the valuation path for each type of cases,and finds that the awards for reverse confusion cases is controversial and remains to be solved.The paper then digs into the essence of the reverse confusion and the value basis for the damage awards,and finds that the cases of reverse confusion have particularities in three aspects:Infringement purpose,infringer and the damage caused.With reference to the way courts in the United States deal with such cases,it is suggested that reasonable royalties is the best principle for determining the monetary awards.Then limitations of the traditional evaluation methods are analyzed,and an improved market method based on AHP and fuzzy comprehensive evaluation is given to help determine trademark royalty.Finally,the paper applies the improved market approach to analyze the case of "New Balance" infringement,and systematically discusses the evaluation assumptions,evaluation methods,evaluation parameters and appraiser positioning to test the practicability of the method.This paper draws on domestic and foreign trademark infringement determination methods and experience,and fully absorbs the characteristics of trademark assets to explore a suitable method for trademark reverse confusion compensation assessment,which is of great significance on asset valuation as well as the judicial practice.