Discussion On The Trademark Reverse Confusion

Without a doubt, the trademark law is a law in the intellectual property rights field thatrelates closest to the market economy. Along with the market economy high speeddevelopment, the economical movement form complex with the multiplication, the intensifiedapplication and the highlight of the independent value of the trademark, some new things willalso appear in the trademark law field, and then will arouse people’s interests. In the field ofthe trademark confusion, the appearance of “reverse confusion”, a new member, is the bestillustration.Differing from the common trademark forward confusion, the reverse confusion will beable to cause the consumers to produce the opposite origin or the connection mistakenconsideration of the goods, and then will produce enormous likelihood of confusion. As thematter stands, on the one hand, the reverse confusion will destroy the trademark most basicrecognition function, namely the function that differentiates the different operators, thendifferentiates goods or services provided by different operators. But this function is theessential reason that trademark may attain protection of the trademark law. Speaking simply,destroying the recognition function will violate the trademark rights. But on the other hand,the reverse confusion will also destroy the prestige commendation function of the trademarkand hinder the independent value’s finally realization of the trademark. Therefore, as the sameas the forward confusion, the reverse confusion has the same harm to the right owner of thetrademark and the public, even more covert, difficult to detect.No matter in America which has the mature and integrate theory and system, or in Chinawhich has the initially embryonic form, with the increase of the realistic cases, the theoreticaland the judicial practical realm also pay more attentions to the reverse confusion. Speaking ofour country, carrying systematic theory researches on the trademark reverse confusion, it isnot only in favor of the improvement of our trademark infringing legal system, but also infavor of instructing the reverse confusion case’s concrete operation in the judicial practice.This article consists of five major parts. The first part is about the outline of trademarkreverse confusion. In this part, through pointing elaboration of two classical reverse confusioncases in American and our country, as well as sorting out its course of development, andbasing on the analysis of reverse confusion and related approximate concepts, the writer ofthis article defines reverse confusion and its infringing nature reasonably, in order to clear the question that “what” is reverse confusion.The second part is about the infringing nature of trademark reverse confusion. This partmainly demonstrates the infringing nature of reverse confusion from three aspects: the reasonof reverse confusion’s generation, the harm caused by reverse confusion and the justificationof inhibition of reverse confusion, in order to clear the reason “why” reverse confusion is aninfringement of trademark rights with the infringing nature, and been prohibited by law.The third part is about the determination of infringement of trademark reverse confusion.In the judicial practice, when making the determination of infringements in the specificreverse confusion cases, we should pay particular attention to analyze and grasp three factors:the subjective intent of the junior user, the psychological cognition of the ordinary consumers,and the specific identification of cases, which will all affect the result of the test of reverseconfusion. In addition, firstly, this part in the foundation of combining three basic infringingelements, through a detailed analysis of the connotation, nature and specific identifiedelements of the “likelihood of confusion”, the writer clears the importance of the core elementin the entire determination of infringement of reverse confusion; Next, the writer discusses theinfringement defenses of the reverse confusion, in order to realize reasonable limitation of thesenior trademark right, and the balance of interests of the right owner of the trademark and thejunior user. But above analysis is for the purpose of clearing about what behavior to be able toconstitute the reverse confusion, namely “how” to carry on the determination of infringement.The fourth part is about the different legislative modes of foreign trademark reverseconfusion. This part carries comparative analysis and research on the mode of “symbolicprotection” in Japan,“prevention of the confusion” in America, as well as the mode of“double rules” in European Union and WTO, in order to clear about the different regulationsof the trademark legislations on the reverse confusion, interpret and learn from the usefulnessof the regulations, put forward proposals for the improvement of our country’s legislation onreverse confusion.The fifth part is about the legislation and its improvement of reverse confusion in ourcountry. This part mainly clears about the present situation that reverse confusion regulated byour trademark legislation, clarifies the deficiencies and defects of the trademark legislation ofour country, in the foundation, learns from the foreign outstanding legislations, puts forwardseveral proposals for the legislative improvement of reverse confusion in our country, in orderto construct the reverse confusion system in our country as soon as possible.