Research On Trademark Reverse Confusion System

In reverse confusion,the accused infringer,through extensive use and promotion,causes the concerned public to make a fixed connection between the trademark and the accused,forcibly obfuscates and even disconnects the connection between the trademark and its obligee,it infringes the exclusive right of trademark,increases the search cost of consumers,damages the Fair Competition Order and the trademark registration system,and should be regulated.In 2013,Chinese Trademark Law made "the possibility of confusion"as one of the components of the trademark infringement in Article 57(2).According to the literal interpretation,any trademark infringement,regardless of the form of expression,as long as there is a possibility of confusion,is a trademark infringement under this provision.However,limited by the original provisions of Trademark Law of China and long-term judicial practice,Chinese judicial practice has formed a fixed understanding,"confusion=positive confusion".In addition,the form of reverse confusion has its own strong concealment,and the factors to be considered in the determination of tort and liability are quite different from the traditional confusion,it is necessary to regulate it as an independent form of trademark infringement in nationla law.In the process of constructing the reverse confusion system in China,the logical starting point should be the legitimacy and necessity of the regulation,and the main line should be the differences between the reverse confusion and the traditional confusion,in order to solve the problems existing in our legislation and practice for the pursuit.Referring to the laws and regulations of the United States,European Union,Japan and other countries,combining with the current situation of legislation and judicature in China,this paper finds out the problems existing in the regulation of reverse confusion in China.Based on the problem-oriented,the reverse confusion system is constructed from three aspects:The design of legal framework,the basic logic and principles,and the concrete factors that need to be considered in identifying the reverse confusion behavior and responsibility.First,the concept of confusion is clearly defined in Trademark Law,which reverses the fixed cognition of"confusion = traditional confusion",which has been formed in practice for a long time,to further straighten out the logical relationship between"trademark approximation or commodity similarity?possibility of confusion?trademark infringement",to clarify the factors determining the possibility of confusion,and to highlight the factors that should be taken into account in determining the act of infringement of reverse confusion,to provide clear guidance for the identification of reverse obfuscation;once again,on the identification of tort liability,it is clear that the tort liability of trademark should adhere to the "fill-up" principle,so as to give full consideration to the particularity of reverse obfuscation in the practice of judicial organs,to make a lawful and reasonable decision.