Legal Recognition Of Post-sale Confusion

Confusion theory is an important basis for determining trademark infringement,and "likelihood of confusion" has now become an accepted element of trademark infringement in most countries.As an expansion of the confusion theory in time and subject matter,the doctrine of post-sale confusion has emerged in theory and practice,although it is not explicitly provided for in Chinese law.The lack of specific analysis of post-sale confusion at the theoretical level has led to misinterpretation of post-sale confusion in practice.This dissertation starts from the jurisprudence of post-sale confusion,clarifies the basis of the theory of post-sale confusion,combines domestic and foreign judicial practice and theoretical research,clarifies the conditions for its recognition based on the analysis of the legitimacy of regulating post-sale confusion,solves the confusion about the scope of the subject of post-sale confusion,the formation time,the type of confusion and the applicable object,and finally makes suggestions on the specific legal recognition and proof standards.The introductory part of this dissertation clarifies the importance of the theoretical research on post-sale confusion,explains the results of the research on post-sale confusion at home and abroad and the lack of research in this field,and further clarifies that the research on post-sale confusion in China is indeed necessary.Chapter I analyzes the legitimacy of regulating post-sale confusion.The basis for the theory of post-sale confusion lies in the expansion of trademark property rights.In addition to harming the traditional source identification function and brand goodwill,post-sale confusion undermines the symbol function and inherent goodwill of trademark.The regulation of post-sale confusion is in line with the value requirements of trademark law and is conducive to achieving a balance between the interests of trademark owners and the public interest.At the same time,the protection of trademark owners must not exceed the necessary limit,to the extent that it does not harm the established welfare of consumers.Chapter II defines the conditions for the recognition of post-sale confusion.The subject of post-sale confusion is limited to potential consumers and should be subject to a higher degree of care.Post-sale confusion should arise in the absence of point-of-sale confusion.The types of post-sale confusion are post-sale confusion as to source and post-sale confusion as to affiliation,and the two types of confusion arise under different circumstances,but not at the same time.Post-sale confusion applies to trademarks with actual use,and the popularity of the trademark only affects the degree of damage caused by post-sale confusion,but not the recognition of post-sale confusion.Chapter III examines the understanding of post-sale confusion in foreign countries.Practically,the post-sale confusion abroad does not have a very strict scope limit.The scope of the subject matter of post-sale confusion in foreign jurisprudence is confusing,but there is recognition of potential consumers.In terms of the timing of the recognition,post-sale confusion should be complementary to point-of-sale confusion,but in practice there is confusion in the courts’ recognition of the relationship between post-sale confusion and point-of-sale confusion.In terms of the type of confusion,there is post-sale confusion as to source and confusion as to affiliation.In terms of applicable objects,well-known trademarks are not required,but actual use is required.Chapter IV puts forward suggestions on the rules of recognition according to the conditions of post-sale confusion.In terms of general criteria,the subject of post-sale confusion should be potential consumers,whose degree of care should be higher than that of the subject of point-of-sale confusion,and the factors influencing the degree of care of potential consumers in post-sale confusion should be different from those in point-of-sale confusion.The type of confusion in post-sale confusion shall be determined by the cause of confusion.The damage claims of post-sale confusion need to be adapted to the applicable object.A trademark with actual use can claim post-sale confusion that damages the origin function,and a well-known trademark that has formed a specific spiritual and cultural connotation can claim post-sale confusion that damages the symbol function.