Refutation Of Trademark Reverse Passing-off Infringement Theory

This paper takes the basic theories of the function of trademark and trademark rights,value,scope as the starting point,identifies the relevance of trademarks and goods,expoundes the reasonable range of trademark right protection,to analyzes the behavior of reverse passing-off is infringement or not within the scope of trademark usage,then put forward the opinion of "reverse counterfeit behavior does not infringe trademark".Paper begins with a classic case of presentation of the concept of trademark reverse passing off,introduces the theoretical development and points out the conflicts in the practice,and demonstrates that the behavior does not affect the realization of the basic functions of trademarks.The trademark owner has obtained reasonable profits by selling goods without using the trademark of the owner,so there is no use of others business reputation.There is no trouble of confusing the source of the goods purchased by consumers from the reverse counterfeiter,besides,reverse counterfeit goods do not necessarily have quality problems.The exclusive right of the trademark owners has been actually used in merchandise sales,and the right has been fully exercised.In contrast,reverse counterfeiting actually uses the trademark owned by the actor after replacing the original trademark,not the trademark of the owner,so there is no infringement of trademark prohibition right.The author also dissected the trademark rights with the principle of "right exhaustion",demonstrated the principle can also be applied to reverse trademark counterfeiting directly.Based on the perspective of commercial practice,the author analyzes the rationality of reverse trademark counterfeiting,and points out the dilemma caused by the identification of the infringement on the practice of trademark replacement,and the theory is not compatible with reverse impersonation.If the infringement of trademark confusion is used to restrict the reverse counterfeit doer from using the original trademark,and on the other hand,the replacement trademark is considered as infringement,it will inevitably restrict and hinder normal commercial economic activities.