Research On Legal Issues Of Trademark Reverse Confusion Infringement

Since the reform and opening up,the socialist market economy has developed vigorously,and the advantages of trademark uniqueness have become more and more obvious in enterprise competition,and the forms of trademark infringement have also begun to be diversified.Trademark reverse confusion infringement,as a popular form of trademark infringement in recent years,has many well-known cases in the practice of trademark law in our country.However,the research on trademark reverse confusion infringement has not formed a relatively consistent theoretical system internationally.In the trademark legal system of our country,there is no clear legal provisions of relevant theories,and the standard of identification is not uniform,which makes unfair judgment appear in the case of trademark reverse confusion infringement,and greatly increases the research value of this theory.The concept of "trademark reverse confusion infringement" was first put forward by Justice Holmes of the United States.The United States,Japan and Europe have discussed and studied the concept of reverse confusion in the theoretical circle.However,only the United States has formed a more systematic theoretical basis,which provides effective material for the legislation of trademark reverse confusion infringement in China.In China,many local enterprises pay less attention to trademarks,and often deal with trademark problems only in the final development link,which may cause a great deal of efforts in the early period to be lost because of the limitations of trademarks,and even result in the phenomenon of trademark reverse confusion infringement.Many factors,such as malicious competition,ill-prepared search and so on,may cause enterprises to mistakenly use other people's trademarks,or similar trademarks to others,coupled with large-scale enterprise publicity and promotion,finally,consumers will be confused in trademark ownership,which causes the violation of the interests of the actual trademark owner,results in trademark reverse confusion infringement and disrupting the normal order of market competition.Some existing theoretical studies believe that reverse confusion infringement can be incorporated into the theory of positive confusion infringement,and some scholars think that reverse confusion infringement can not constitute infringement,but in fact,if the reverse confusion infringement cannot be fully recognized,many well-known enterprises will make use of their strong financial strength and effective propaganda channels to make the actual trademark owners being at a disadvantage in the market competition thus to undermine the benign development of the socialist market economy.With the widespread concern of the "New Balance" case and the "i Pad" case,some scholars have studied the trademark reverse confusion infringement,but so far,no systematic works have been formed.Trademark reverse confusion infringement theory is only used as a theoretical source in some judicial practice,and has not become a decisive verdict basis.On the basis of understanding the existing theoretical research on trademark reverse confusion infringement at home and abroad,this paper uses various research methods to discuss the related problems and solutions of trademark reverse confusion infringement in the trademark legal system of our country.There are four parts:Part I introduces the summary of trademark reverse confusion infringement theory.Firstly,it expounds the origin of trademark reverse confusion infringement theory in the field of law and in our country.According to the relevant laws,judicial interpretation and relevant legislation of various countries,it explains the meaning of trademark reverse confusion infringement.From the view of the direction of consumer confusion,the market position of the main body and the subjective intention of both sides,it summarizes the characteristics of trademark reverse confusion infringement.Then analyzes the concept of positive confusion infringement and reverse confusion infringement.And finally from the perspective of jurisprudence,trademark law and economics,it analyzes the theoretical basis of trademark reverse confusion infringement.Part II introduces the current legislation situation of trademark reverse confusion infringement and its defects.Firstly,it reviews the trademark reverse confusion infringement cases in China in recent years,and summarizes the relevant laws and legal interpretations that can be invoked to identify reverse confusion infringement.Then the article analyzes a series of judicial problems caused by the lack of legislation of reverse confusion infringement from four aspects: the application of reverse confusion infringement theory,the definition of trademark confusion degree,the principle of infringement liability,and the compensation standard,which paves the way for the construction of the solution mechanism below.Part III introduces the investigation and enlightenment on the legislation model of trademark reverse confusion infringement.Firstly,it investigates the dominant model of "confusion possibility" of the United States,the "symbol protection" model of Japan and the "double standard" model of the European Union and TRIPS,and draws certain enlightenment.Then according to the actual situation of our country,from the regulation principles of reverse confusion infringement,reverse confusion infringement identification,trademark management and other aspects,it expounds the localization considerations of relevant theories.Part IV introduces the suggestions on trademark reverse confusion infringement in China.It puts forward suggestions mainly from the four aspects including introducing theory of trademark reverse confusion infringement,unified the standard of trademark confusion,the related system improvement,the infringement liability imputation principle,the infringement compensation pattern improvement as well as the enterprise trademark management warning in order to offer help for judicial practice.