Research On The Standards For Recognition Of Infringement Damages For Trademark Reverse Confusion

At the end of 2019 and early 2020,in the first and second instance verdicts of the "MIKA Mijia" trademark infringement dispute case,the courts of both instances found that Xiaomi Communication Company and Xiaomi Technology Company established reverse obfuscation,but the amount of compensation for infringement damages was determined.Two very different identifications.The court of first instance decided to compensate the plaintiff 12 million yuan based on the infringer’s profit standard,while the court of second instance changed the compensation amount to 3 million yuan according to the statutory compensation standard.The huge difference between the two aroused eager attention and discussion.Regarding the determination of damages for trademark reverse confusion infringement,the current courts are applying the current trademark law for the calculation of damages for forward confusion infringement,and adopt the legal order of damages calculation in the "Trademark Law".As the entry point of this paper,"Mika Mijia" case puts forward the problem that there is not uniformity in the identification standard of damages compensation in reverse obfuscation tort cases,analyzes that the current calculation method of damages compensation is not applicable to reverse obfuscation tort cases,and puts forward relevant suggestions for improvement:Based on the particularity of the compensation for reverse confusion of trademark that is different from compensation for forward confusion of trademark,this paper puts forward that the market value of trademark right itself and the infringer’s subjective fault are the important factors to determine the amount of compensation for reverse confusion of trademark,and introduces the calculation standard of "license royalty multiple plus punitive compensation".There are also suggestions on optimizing the legal compensation and giving the right holder the right to choose the order of compensation.