Research On Damage Compensation Of Trademark Reverse Confusion Infringement

The trademark is used by producers or operators to distinguish the marks of their goods from other similar goods.It plays an important role in indicating the source of goods,transmitting the information of goods,and reducing consumers' searching costs in a market economy.In recent years,there have been many cases of reverse confusion at home and abroad.Traditional trademark infringement is a situation where small companies often misappropriate the well-known trademarks of large companies and use their goodwill to quickly open the market,which is so-called"Hitchhiking".Different from traditional trademark infringement,infringers in reverse confusion are usually large companies with high reputation and strong power.The infringed parties are often small companies with low reputation and weak power,which is so-called "big fish eat fish".In theory,according to the direction of confusion,it can be divided into forward confusion and reverse confusion.It is generally believed by the academic community,the author generalizes the reverse confusion as follows:a well-known company uses a trademark owned by a company with a low profile,and a large number of advertisement marketing and commercial promotion activities make the trademark owned by an earlier trademark user submerge.As a result,consumers mistakenly believe that prior trademark users are subsidiaries of the large company or that prior trademark users infringe the trademark rights of the large company.In China,it has become the focus of public debate that the amount of compensation for infringement or settlement reached in dispute between iPad and Proview case,the Blue Storm case and the New Balance sky-high price compensation case.Reverse confusion has different factual composition,identification criteria and harmful consequences from forward confusion,with consequent obstacles in determining the amount of compensation for infringement.Based on the determination method of the amount of damages stipulated in the Trademark Law of China and combined the domestic and foreign trademark reverse confusion judgments,this article analyzes the problems and obstacles encountered in the application of compensation calculation methods in reverse confusion of trademark infringement cases.At the same time,it proposes corresponding solutions so as to benefit our country's judicial practice.