Legal Analysis On The Reverse Confusion Case Of "XIN BAI LUN" Trademark Infringement

Since the 21 st century,a new form of trademark confusion infringement has appeared in China’s judicial practice-reverse confusion.Compared with the traditional confusion,such as “free ride” and “hitchhiking”,the reverse confusion is quite different in manifestation,constituent elements and damage consequences,which has concealment and complexity.Among them,the obvious difference is the direction of confusion.However,the existing laws and regulations of our country do not specify the reverse confusion,and most domestic scholars only study the nature of reverse confusion.Throughout China’s judicial practice,some judges realize the particularity of reverse confusion and make judgments according to some principled clauses,or the judges neglect the particularity of reverse confusion cases and make judgments in accordance with the rules of the Trademark Law concerning the traditional trademark confusion infringement and compensation standards.This ultimately leading to the basic standards of infringement identification and compensation are different in similar cases,which has resulted in the occurrence of “different judgments in the same case”.Therefore,it is significant for the judicial practice to discuss and research about the identification and compensation of trademark reverse confusion infringement in China.As one of the typical representatives of trademark reverse confusion infringement,“Xin Bai Lun” trademark infringement case reflects the controversy on the identification and compensation of trademark reverse confusion infringement in China.Therefore,the author runs the case through the whole process based on the analysis of the relevant laws and the method of case analysis.By discussing the controversial focus of subject case,this paper explores the key legal issues of reverse confusion infringement,and strives to provide practical ideas and suggestions for judicial practice.This article mainly carries on from the following several aspects:Firstly,the author tries to analysis the legitimate basis for examining and judging the validity of trademarks,and then specifically analysis the situation of the cited marks.Secondly,as the premise of trademark infringement,trademark use should have identification function.In addition,the author tries to summarize judgment criteria of trademark use through a series of cases,and then specifically analysis the nature of the disputed mark.Thirdly,trademark reverse confusion approximate infringement should have “double similarity” and “confusion possibility” at the same time,and then specifically analyze whether the defendant’s behavior constitutes trademark infringement.Fourthly,whether the compensation provisions of Trademark Law are applicable in reverse confusion case,and then specifically analyze whether the court’s judgment on compensation in this case is reasonable.