Legal Research On The Problem Of Trademark Reverse Confusion In China

As a new model of trademark infringement,trademark reverse confusion is more harmful and concealed than the traditional positive confusion model.The main feature is the reverse obfuscation.Usually,lager enterprises as the trademark of the latter users,they use and advertise the small business trademark without authorization.So it has brought a lot of attention to the unknow trademark,but it cause the relevant public to mistake the latter as the trademark owner.It is different from the traditional infringement mode with seizing the goodwill,the latter user is extremely unlikely to rely on goodwill.In fact,it infringes the exclusive right of the owner and impedes the possibility of expanding the field of market competition.On the other hand,if the “relativity of rights" is the key to the discussion of trademark reverse confusion,the promotion of the trademark is mostly attributed to the latter's publicity,but as the first right person without competitive strength,there will be a reverse "hitchhiker" behavior,or there is a phenomenon of claiming rights late in order to get high compensation.Therefore,the confrontation of rights is a challenge to benefit balance and the best solution.In our country,the judicial practice of the reverse confusion of trademarks has occurred frequently,but the legislation has not clearly stipulated it.As a result of the blank of the law,still can not form a unified standard in dealing with such cases,so caused by the different judgements in the same case.In addition,if only the "three standards" for damages in the trademark law is relied on,the latter shall be determined to stop the infringement and compensate for the loss.In this way,it will ignore many risks,such as,the potential benefits of the trademark owners and the loss of the latter's investment resources.It even damages the public interest and consumer's rights and interests.In order to protect the interests of the parties and maintain a stable and orderly market competition order,it is particularly important to balance the interests of the parties.Therefore,combined the determinant factor and infringement compensation standard,it is suggested that,starting from the subjective intentions of both parties,put forward the best solution.When the owner or the latter exist subjective fault,we should use the principle of fault offset or rigorous principle to punish the infringement.If the latter has no subjective fault and consumers have become dependent on the brand,we should combine with interests balance and the principle of justice and equity.We can use the trademark license,transfer or trademark coexistence to solve disputes.It can avoid the series of social losses caused by the direct application of the "three standard" to determine infringement.Hope to promote the deep development of the legal system for the trademark reverse confusion in China.