Research On Trademark Reverse Confusion Infringement

Trademark reverse confusion differs from the general forward confusion.Usually,after a small and medium-sized enterprise obtains the trademark right,the stronger well-known enterprise uses and promotes the trademark of the trademark holder on a wide range via its dominant market position,thus severing the connection between the small or medium-sized enterprise and its trademark,and causing confusion among the relevant public.Thus the regulation of trademark reverse confusion is more reflected in preventing well-known enterprises from using their powerful strength to drown out the goodwill that has been established on the trademark of right holders,rather than the traditional"free-rider" behavior.In our judicial practice,the courts have different opinions on reverse confusion.The first opinion is that many courts don’t support the doctrine of reverse confusion,but only positive confusion can infringe trademark rights;in addition,even if the courts that recognize the doctrine of reverse confusion and advocate regulating it are not uniform enough in terms of specific identification and remedy,and fail to form a clear and perfect rule.This makes it difficult to achieve a balance of interests,and finally lead to a unfair result.Therefore,it is necessary to make clear the basic theory of reverse confusion,and by analyzing the judicial situation in china and studying from the experiences of American,in order to give some suggestions for the regulation of the reverse confusion in our country and promote the protection of the rights,the interests of the consumers and the trademark order.Apart from the preface and conclusion,this paper is categorized into the following four parts:The first part is an overview about the knowledge of reverse confusion.Firstly,analyze the origin and development of trademark reverse confusion by introducing classical cases;Secondly,discuss the reasonableness of the regulation of reverse confusion and clarify the necessity of such regulation;Finally,distinguish trademark reverse confusion from similar concepts:it differs from positive confusion in the direction of confusion,market position,subjective status of the infringer,and the results of the infringement;it differs from reverse passing-off in the way of infringement,market strength,and subjective status of the infringer.The second part is about the judicial status and analysis of reverse confusion in China.By the introduction of three classical cases,we will sort out the regulations on reverse confusion in our judicial practice.In terms of identification,there are two problems:"trademark reverse confusion has not been fully accepted" and "the cognizance of reverse confusion lacks comprehensive and unified cognizance standard".In terms of remedy,the analysis yields:on the one hand,the absolute application of "cessation of infringement" is not reasonable,and on the other hand,there is the unsuitability of reverse confusion and the rules for calculating damages.The third part is about the experience of reverse confusion in American practice.This part mainly introduces and analyzes the identification and remedy of reverse confusion in American practice,in order to provide experience for China to improve the regulation of reverse confusion.As to identification,American judicial practice focuses on "likelihood of confusion" as the center of identification on reverse confusion,with respect to the judgment of "likelihood of confusion",major standards shall be made in judicial practice,such as the "eight-factor" standard,the "ten-factor" standard and so on.As to remedy,on one hand,this paper analyzes the application of "permanent injunction" in the US judicial practice;on the other hand,introduces the application of two kinds of compensatory damages and other possible punitive damages in the US.The fourth part is the suggestion to improve the regulation of reverse confusion in our practice.Learn the experiences of the United States and taking into account the practice in China,this paper provides suggestions on the regulation of trademark reverse confusion in terms of identification and remedies.As to identification,based on determining the legal and valid trademark of the prior trademark owner and constituting the trademark use of the subsequent trademark user,the court shall determine the mode of "double similarity+likelihood of confusion",refine the factors for determining the likelihood of confusion,and consider the subjective intentions of both parties.As to remedy,a balance between trademark protection and maximization of trademark value shall be achieved:Non-pecuniary remedies focus on the differential application of "cessation of infringement"and reasonable application of "elimination of the effects",while pecuniary remedies should be calculated as a "reasonable multiple of the trademark royalty",and punitive damages will be applicated if relevant conditions are met,finally the catch-all nature of statutory damages needed to clarify.