The Identification And Damges Of Trademark Reverse Confusion

The theory of trademark reverse confusion originated in the United States,which corresponds to the traditional trademark forward confusion.Since the emergence of this concept,the United States circuit courts have not reached a consensus on the determination of reverse confusion of trademarks.China's trademark law does not mention the concept of trademark reverse confusion,but there have been many very typical and controversial cases of reverse confusion in social reality.The unpredictability of the court's judgment result caused by the absence of the identification elements and compensation standards of trademark reverse confusion infringement is one of the main reasons for these disputes.This paper first takes “trademark” and “reverse confusion”as the key word,carries on the retrieval to the referee document network,based on the retrieval 98 judgments,synthesizes the academic circles related viewpoint,explains the trademark reverse confusion concept,summarizes the trademark reverse confusion characteristic.On the basis of the 98 judgments,the present judicial situation of the reverse confusion of trademark application in China is explained,and two major problems exist in the process of application are obtained : “the missing elements of tort constitution ”and“ the amount of damages compensation is difficult to determine ”.Finally,through the analysis of the typical cases in the development of the reverse confusion system of American trademarks,we draw lessons from its judicial experience and combine with the judicial practice of our country The merits in practice put forward some suggestions for the establishment of the infringing elements of the reverse confusion of Chinese trademarks and the transformation of damages.This paper holds that the following elements should be examined to determine the trademark reverse confusion infringement: first,the later users constitute trademark use;second,the earliertrademark is a legally registered trademark;third,the later trademark is well-known and the former trademark is less well-known;fourth,the consumer has the possibility of actual confusion.In the compensation of trademark reverse confusion infringement,using the practice of U.S.Circuit Court for reference,taking the reasonable multiple of trademark license fee as the compensation standard,and from the three angles of “trademark owner and third party”,“case involving trademark self value” and “similar trademark value”,the quantitative problem under the compensation standard is solved.Finally,it analyzes the relationship between the subjective state of tort and punitive compensation.In view of the fact that China's trademark exclusive right is obtained by registration and needs public announcement,which is different from the “dual track system” of the United States,the subjective state of the user in the post use case can be presumed to be “intentional”,that is to say,the fault of the infringer should not be taken into account when identifying the reverse confusion infringement,which belongs to the no fault liability in the tort law.On the premise that the subjective state of trademark reverse confusion infringement can be presumed to be “intentional”,the corresponding punitive compensation should be made based on the criticality of the “intentional”,that is,when the infringer has some malicious intention,the compensation should be increased,and when the infringer can prove the fault of infringement,the punitive compensation or less compensation can not be made.