Research On The Compensation For The Reverse Confusion Of Trademarks

In the part of China's “Trademark Law” on damages for infringement,the determination of the amount of compensation for infringement of infringement basically forms a reasonable multiple of the actual losses of the right holder due to the infringement,the actual benefits obtained by the infringer,and the license fee for the reference trademark.The statutory compensation of less than 3 million yuan and 1 to3 times the punitive damages of five kinds of tort compensation calculation standards.This article takes Article 63 of the Trademark Law as the legal basis.The New Balance trademark case is the entry point.In combination with the foreign provisions for compensation for trademark infringement,the actual loss of the right holder,the benefit obtained by the infringer due to infringement,and the license fee for trademark use are respectively analyzed.Reasonable multiples,statutory compensation,and malicious infringement of trademark rights,punitive damages,five kinds of compensation standards for infringement.The first chapter first introduces the classic case of trademark counter-confusion and infringement compensation(New Balance case),which sheds light on the first question to be studied in this paper: how the calculation standard of trademark reverse confusion compensation applies in the case of reverse confusion and infringement compensation.Next,an empirical analysis of the counterfeit compensation for trademark infringement was conducted.It was concluded that almost all the judicial practice in the case of reverse confusion and compensation is the calculation of compensation for statutory compensation.How to better apply the statutory compensation calculation standard in practice? Has become the second issue we wantto study.The second chapter is a theoretical analysis of the calculation of counterfeit compensation for trademark infringement.First of all,it discusses the difference of reverse confusion and forward confusion,and if the compensation is too high,it may lead to trademark squatting,which explains the complexity of the calculation of reverse confusion and tort compensation.Then it was demonstrated that in the case of reverse confusion of the trademark,the direct loss of the right holder cannot be calculated and the indirect loss cannot be quantified.Therefore,the loss of the right holder cannot be measured.Therefore,the calculation standard of the loss of right holder does not apply to the calculation of reverse confusion and infringement compensation.Secondly,by indicating that the use of infringing trademarks is not the main reason for the infringer's profit,the use of the infringer's profit standard cannot compensate for the losses of the rights holders and the prone to huge compensation is not conducive to the balance of interests and will result in multiple litigations and waste of judicial resources.In four aspects,it was concluded that the calculation standard for infringement profits does not apply to the calculation of reverse confusion and infringement compensation.Finally,it briefly discusses the use of a reasonable multiple calculation standard for trademark licensing fees to determine the amount of compensation.The third chapter analyzes the statutory compensation for the calculation of trademark infringement compensation.First of all,it discusses the problems encountered in the judicial application of the statutory compensation calculation standards.Secondly,the United States introduced the statutory compensation calculation standards.The next step is the focus of this article,which is to optimize the statutory compensation calculation standards.When using the statutory compensation calculation standard to determine the amount of infringement compensation,it is necessary not only to make a qualitative reference,that is,the nature,duration,consequences of the infringement,the reputation of the trademark,the amount of the license fee for use of the trademark,the type,time,scope,and restraint of the applicable license of the trademark.The reasonable expenses of the infringing act and the actual infringement suffered by the right owner,the profit obtained by the infringer from the infringement,the degree of subjective fault of the right holder,etc.;quantitative reference: 1,correcting the advertising fee,correcting the advertising fee = the defendant's advertising expense × the plaintiff's ProductRange / Defendant's Product Range × 25%;2,Referring to the United States' statutory compensation calculation standard,statutory compensation amount = standard compensation amount × counterfeit trademark item number × number of goods or services;3,statutory determination based on trademark contribution rate Compensation amount,amount of compensation = amount of infringing goods sold ×profit per unit of the commodity or unit profit of registered trademark goods ×contribution rate of trademark profit(assessed by a professional evaluation agency);4,introduction of "AHP Analytic Hierarchy Process" in economics.The fourth chapter,to improve China's trademark counter-confusion confusion infringement compensation recommendations.First of all,it summarizes the application of the calculation standard of reverse confusion and infringement compensation,and puts forward the opinions on giving right holders compensation for the right of sequential choice to better protect their own interests.At the same time,it puts forward sound suggestions for the reasonable expenditure system.