Research On The Determination And Civil Liability Of Trademark Reverse Confusion

Reverse confusion is a special kind of trademark infringement, is relative to traditional sense of confusion (positive confusion), namely, the junior user make the trademark higher visibility that consumers will think the product of the senior user is derived from the junior user or think they have a subordinate relationship. trademark law of china did not have regulation for such infringement. however, the case of reverse confusion happen from time to time in judicial practice. in such cases, due to the lack of legislation, the court's ruling still quoted the general judgment method of traditional trademark infringement.But compared with general trademark tort, reverse confusion is different in many aspects, such as form, injury consequence.Relying solely on the existing theories are not enough to solve such problem. The point of this paper is summed up peculiar considering factors and civil liability by throughing the theory of the reverse confusion. And giving some advices to judicial practice.This paper is divided into five parts, the first part is the research of reverse confusion concept and characteristics, for studying the concept and characteristic of reverse confusion can make us more in-depth understanding of this type of tort constitute, this part is necessary for study how specific in judging and processing on reverse confusion. The second section discusses mainly the harmfulness of reverse confusion, the harm of reverse confusion is so latent that we neglected for long time. To exposing the hazards can clearly for regulating this behavior, and also more in-depth understanding such infringement approach.The third part is about empirical study on considering factors of the reverse confusion, empirical study were selected from the United States and China.Throughing this kind of method that extracting out from judge's decision in the cases, reflecting he relevant factors which the judge focused on,Which have very important reference meanings in summing up considering factors of reverse confusion later.The fourth part of the article is on the study of the civil liability applicable of reverse confusion,also taking the method of the empirical research. Through introducing the court's handling of reverse confusion, found some endemic applicable rules.The end of the article is the summary of proposed judicial proposal to our country basing on the empirical research. the author thinks that our current legislation in relevant confusing is fuzzy so that is not correct for understanding and dealing with the issue of reverse confusion, so the concrete expression about confusion should be introduced into trademark law, make confuse possibility as the standard of trademark infringement. And by summarized the considering factors of reverse confusion, the author put forward a set of operable considering factors. Finally, the author thinks that the related civil liability for the processing reverse confusion should relying on the characteristics of reverse confusion and establishing the suitable processing method.