On Trademark Reverse Confusion

Trademark reverse confusion is not only a kind of trademark infringement, but also an act of unfair competition. It not only damages the interests of trademark owners, but also damages to the right to know and the independent consumer choice. Therefore the trademark reverse confusion behavior is strictly prohibited by the laws. It not only protects the prior trademark use of the legitimate rights and interests, but also protects the legitimate rights and interests of consumers. To create a good atmosphere for the healthy development of small and medium-sized enterprises is a bigger point.Chinese "trademark law" defined trademark reverse confusion acts constituting elements and compensation standard is not clear. At the same time, the likelihood of confusion as the trademark infringement criteria, but the likelihood of confusion on the judgment only considers the similarity of goods and trademarks approximation, no considering other reference factors. Which violates the confusion theory that related to the protection of the public from the original source of confusion. With the increase in Chinese trademark reverse confusion cases, theory circle and practice circle require the perfection of trademark reverse confusion behavior specific content is more and more frequently. Trademark reverse confusion acts should provide elements, factors, compensate standards make specific provisions.Firstly, we should distinguish the component of trademark reverse confusion. It should include that:the registered trademark must be protected by law, the trademark owner must be affected by the law of tort of majority in a dominant position, the infringer to improve the visibility of the disputed trademark, the actor’s subjective fault, the subjective fault of consumer confusion these aspects.Secondly, the most important point of trademark reverse confusion behavior is the reference factors. These factors mainly include:the significance of trademark, trademark approximation, similar goods, the infringer’s subjective fault, the attention of consumers, the actual evidence of confusion, the possibility of plaintiff to expand the business scope. The significance of trademark includes inherent distinctiveness and business significant. In the trademark reverse confusion key consideration prior trademark use of inherent distinctiveness of trademark and the trademark use of trade mark significant should act. Trademark approximation emphasis is whether consumers will because of similar trademark confusion, rather than trade itself. The similarity of trademark judged by the whole and significant part of the combination, related to the general public’s attention, isolated comparison principle. Commodity similar existence is the main factors to consider sales channels and place for commodity uses, the appearance of goods, packaging and containers, goods etc. The infringer’s subjective fault is.mainly refers to intent and negligence in subjective of the infringer. There is no a unified opinion about infringement intentionally applied in the reverse confusion. But it is certain that trademark user who came after is negligent in subjective. The attention of consumers associated with the following factors:the degree of maturity, consumer shopping process and the complexity of the type of merchandise, shopping environment, product quality. The actual confusion evidence is in favor of the assessment of likelihood of confusion. To achieve actually confused evidence is the key. The possibility of prior trademark user expands the business scope mainly around such two aspects as:the prior trademark user has plans and ability to expand the scope of business and his ability is speculative. These factors are only a reference guide, not consideration of all factors. There is no unified standard for the identification standard of likelihood of confusion.Finally, this paper will give a clear definition of trademark reverse confusion standard of compensation. It includes property liability and non-property liability. In the property liability, subjectively, the compensation for trademark reverse confusion should base on the principle of no fault liability. This is mainly to prevent the user of trademark came after introducing that he can’t retrieved the trademark has been registered for prior user of the trademark. Objectively, we should perfect the legal standard of compensation. We can determine a reasonable amount of compensation in the legal amount. It can refer to such factors as:the trademark license fee, distinctiveness, commodity sales area, advertising investment. The purpose is to limit the discretion of the judge. In the non property liability, stop the infringement and eliminate effects both applied to trademark confusion. To stop the infringement aims at the future damage which is possible. The purpose is to prevent further expansion of trademark owners damage. Eliminate effects is to help restore the reputation of the trademark owners.