Research On The Judicial Application Of Trademark Reverse Confusion In China

Trademark reverse confusion originated in the United States and is a concept corresponding to traditional forward confusion.In recent years,in China’s judicial practice,cases of trademark reverse confusion are not uncommon.From "Blue Storm Case " to "Feichengwurao Case ",to the recent "Mijia Case",relevant lawsuits occur almost every year.However,every time a trademark reverse confusion case arises,it will cause huge controversy.The reason is that reverse confusion is an exotic product,and there is no relevant regulation in our law.Therefore,how to deal with this new imported concept has become an unavoidable issue in judicial practice.By sorting out China’s trademark confusion cases in recent years,it can be found that there are still differences in judicial practice regarding whether the foreign concept of trademark reverse confusion is applicable.In addition,because China and the United States have different legal systems for trademarks,it is difficult to confuse trademarks originating in the United States in the reverse,and it is difficult to apply them in the framework of China’s trademark laws.Some courts were unaware of the differences between the Chinese and American legal systems,but directly copied the US applicable trademarks to reverse confusion,which ultimately led to unfair judgment results.The United States adopts the trademark right acquisition system,so the premise of reverse confusion in the United States is that the previous trademarks were used before,and certain goodwill has been accumulated through actual use.However,China adopts the trademark right registration acquisition system,which has led to many defects such as squatting and non-use of earlier trademarks in China’s trademark reverse confusion cases.Due to the dual system of civil trademark infringement and administrative trademark confirmation in China,judges have no right to directly deny the effectiveness of these defective trademarks.Therefore,judges often recognize the rights of these defective trademarks on the grounds that the trademarks are still in a valid state,and give legal protection to these defective trademarks on the basis of determining that they constitute reverse confusion.This is not in line with the inherent spirit of the trademark reverse confusion theory.Therefore,if China is to apply reverse trademark obfuscation,it must follow the principles of good faith and proportionality,and exclude these defective trademarks from the scope of trademark reverse obfuscation theory.In addition,how to determine the reverse confusion of trademarks is also an urgent problem to be solved in China.Because the United States adopts the standard of trademark infringement of the possibility of confusion,it has a lot of judicial practice experience in the determination of confusion.Multi-factor detection method and consumer investigation method are the basic identification methods of reverse confusion in US trademarks.In contrast,China’s Trademark Law,which was revised in 2013,introduced the possibility of confusing trademark infringement standards.Therefore,in China’s trademark reverse confusion cases,most judges simply make trademark reversal based on only three factors: trademark similarity,product similarity,and trademark distinctiveness.Identification of confusion.Based on this situation,if China is to apply reverse trademark confusion,it must learn from the US experience and comprehensively use multi-factor detection and consumer survey methods to correctly determine whether it constitutes reverse trademark confusion.In addition,when applying these two methods in particular,it is necessary to pay attention to distinguishing between the difference between trademark reverse confusion and trademark forward confusion in the specific determination.