关于中国商标反向混淆侵权法律规制的研究

Abstract

In recent years, with the development of the Chinese market economy, cases of trademark infringement have frequently occurred and trademark infringement types are becoming more diversified. Trademark Reverse Confusion, in contrast to general trademark confusion, is that a leading user (trademark owner) acquires a new recognition in the market despite the fact that the trademark owner is using the trademark. This reverse confusion can have a negative effect on the precedent trademark owner, consumer, and institutional order on trademark protection. Therefore, legal analysis and academic discussion about trademark reverse confusion should be done sufficiently. As a characteristic of reverse confusion, a late user who is an infringer is taking advantage of strong capital and market control ability to reduce the possibility of expanding the market of the pre - owned users. In the case of a large-sized large corporation, it can be disadvantageous in establishing a fair market competition order because it can acquire a greater awareness than a pre-user‘s trademark by using various publicity means regardless of intention of infringement of a trademark right. However, there is no definite legal regulation on the reverse confusion of trademark right in the current Chinese law. Although there are cases in which the infringement of trademark rights because of reverse confusion is recognized in the precedent case, some courts judge according to the logic of the traditional confusion. And the judgment logic and the criteria are unclear. Therefore, in order to protect the sound market order and the rights of the leading trademark owner, it is necessary to present general elements about the necessity of regulating the reverse confusion of trademark rights and the standard of recognition of infringement based on the analysis of the legal provisions and precedents. Based on this, I think it is necessary to consider the legislation of reverse confusion regarding the infringement of trademark in Chinese law in the future, and the problems such as the calculation of damages in case of infringement due to reverse confusion should be discussed more concretely. This paper focuses on these issues and examines the legal regulation of Chinese trademark confusion.