Recognition And Relief Of Reverse Confusion Of Trademark In China

The concept of trademark reverse confusion first appeared in the United States and has been developed and matured through a series of legal precedents.With trademark reverse confusion disputes appearing more and more frequently in people’s field of vision,the dispute about the theory of reverse confusion has also aroused widespread concern in judicial theory and practice.In the case of reverse confusion,the infringing company is usually a large company with strong economic strength,and USES its advantageous economic position to conduct a lot of publicity on the infringed trademark,which weakens the obligee’s control over the trademark and makes consumers have a wrong understanding of the source of the commodity.However,the infringing companies here usually do not have the intention of "free riding",and the infringed companies are often small and medium-sized enterprises with small market share,so the infringement results are more covert.Since the theory of trademark reverse confusion is still in the exploratory stage in China,and the relevant legislation in China is still blank,judges usually refer to the legal provisions of applying traditional positive confusion when hearing relevant cases.In view of the fact that reverse confusion and positive confusion are largely different in the subjective state of the actor,the nature of the act,and the result of infringement,such application is difficult to achieve the balance of interests between the infringer and the infringed,easily leading to the result of injustice.This paper aims to analyze the main problems existing in China’s judicial practice,combine with the mature development experience of foreign countries,according to the actual situation of China’s trademark law theory,and put forward Suggestions on the identification and relief of reverse confusion.This paper is divided into four parts.The first part introduces the development status of the trademark reverse confusion theory abroad and the definition of the concept in China.This paper mainly studies the legislative protection and identification standards of reverse confusion of trademarks in the United States,Japan and the European Union.The second part makes an empirical analysis on the judicial application of the reverse confusion theory in China.This paper introduces the application status of reverse confusion of trademark in China through the macro analysis of relevant cases and case analysis,and makes a brief analysis of classic cases from the two aspects of recognition standards and relief standards,and gives a direct introduction to the controversial focus of reverse confusion theory in Chinese justice.The third part,based on the above analysis,conducts normative analysis on the identification standard and relief standard of reverse confusion in China.In terms of legislation,China has established confusion as a constituent element of trademark infringement,but has not regulated reverse confusion separately.In judicial practice,due to the lack of clear application of law,the judges have not formed a unity in the legal basis of citing,identification standards,relief standards and other aspects in the trial of relevant cases,and the phenomenon of different judgments in the same case has occurred,resulting in a high appeal rate.The fourth part puts forward some Suggestions on the improvement of related legislation.Firstly,trademark reverse confusion should be given an independent legal status in legislation,so that relevant cases can be tried by law.Secondly,in the criterion of identification of reverse confusion,the "double approximation" criterion can be used as the premise,and the "likelihood of confusion" criterion as the core,supplemented by the multi-factor comprehensive judgment.Finally,regarding the amount of the reverse confusion relief,the reasonable multiple of the trademark license fee can be adopted to realize the multi-scheme relief mode by introducing the "trademark coexistence" system.