Recently, a media called it "possibly the most important trademark judgment in history" that quickly swept through the IP circle and triggered countless eyeballs and controversy in an instant - this is the "If You Are the One" trademark dispute case. Some netizens commented that the verdict "ignores reasonableness", and public opinion is gradually fermenting in the direction of "should well-known programs give way to ordinary trademarks?"
In fact, in recent years, online discussions on some IP hot cases have gradually become the norm. In these discussions, the tendency of public opinion is often diametrically opposed to the final judicial decision, which has caused public dissatisfaction. In fact, in terms of essential attributes, the conflict between the judicial organs that insist on independent status and the people who hold an external position is an inevitable result of the process of professionalism. So, why do netizens firmly believe that they hold the truth and hold the truth in the above-mentioned hot cases? What about a crisis of confidence in professional referees? Examining the specific details, it is not difficult to find that the facts in these cases are often clear and the law can be applied, but the applied results are often contrary to "reason", so the judges face difficult choices. In such cases, the essence of the issue often goes beyond pure legal judgment and quietly rises to the rule of law proposition of "who has the right to judge the bottom-line value?"
Take the "If You Are the One" trademark case as an example. Netizens' doubts are undoubtedly very persuasive: Who does the trademark law protect? Is it the tens of thousands of viewers who have established a connection between "If You Are the One" and Jiangsu Satellite TV's column, or is it a little-known trademark and its questionable number of consumer groups? The author believes that there are different opinions on the value orientation of the judgment in this case, but the "reverse confusion" that affected the outcome of the second instance is a key issue that cannot be bypassed in this case.
It is understood that on February 16, 2009, Jin Ahuan referred to the words on the poster of the movie "If You Are the One" and adopted traditional Chinese writing, and formally applied to the Trademark Office of the State Administration for Industry and Commerce to register the "If You Are the One" trademark. On September 7, 2010, Jin Ahuan's "If You Are the One" trademark was officially approved for registration, with the registration number 7199523, and the approved use category is Category 45 dating services and marriage agencies. It is reported that Jiangsu Satellite TV's "If You Are the One" officially launched on January 15, 2010. This point in time is after Jin Ahuan applied to register the "If You Are the One" trademark. As the ratings of Jiangsu Satellite TV's "If You Are the One" continued to rise, Jin Ahhuan discovered that the program was causing trouble for his company's operations. His company "originally attracted merchants to join in the dating and dating program," but all interested merchants would Asked him "if it is related to Jiangsu TV's "If You Are the One"", "many people were confused." There are also many merchants who are "unwilling to join" because "their business actually has nothing to do with the "If You Are the One" column. Therefore, Jin Ahuan took Jiangsu Satellite TV to court and received support in the second instance.
People will be confused about the second-instance judgment in this case: How can a gold medal column brand that attracts so much attention be no match for an unknown trademark? The author believes that to understand the second-instance judgment, it is necessary to clarify the non-traditional form of trademark confusion: reverse confusion.
The so-called "reverse confusion" is the opposite concept to "forward confusion", that is, the use of the trademark by the later user of the trademark makes consumers mistakenly believe that the goods of the earlier trademark owner are derived from the trademark. Use people after. Taking this case as an example, consumers who purchased Jin Ah Huan’s matchmaking service mistakenly mistook “If You Are the One” as the trademark of Jiangsu Satellite TV.
The theory of reverse confusion originated from the United States, but has been recognized to varying degrees in my country’s judicial practice in recent years, and has been used in the “Bingdian” trademark case, the “Nengnong” trademark case, and the “Huiyan” trademark case. case, the "Blue Storm" trademark case and many other well-known cases. On the surface, people would be surprised, because reverse confusion seems to have no harm to the owner of the prior trademark: Jin Ahuan can objectively ride on the popularity and influence of Jiangsu Satellite TV and expand his services without spending a penny. sales, why not?
In fact, the same question also occurred when the "reverse obfuscation" theory was born in the United States. U.S. courts at all levels also struggled with this, but in the end they still established the prohibition of reverse obfuscation. The reasons for this precedent are, first of all, to protect the goodwill of the prior trademark owner.
After a mistaken purchase, when consumers discover that the services provided by Jin Ahuan have nothing to do with Jiangsu Satellite TV, they will think that the trademark used by the service provider is counterfeiting other people's trademarks and coercing other people's goodwill, thus causing the goodwill of the prior trademark owner to be lost. Derogation occurs. Secondly, protect the market position and normal competitive environment of the prior trademark owner. As the U.S. court pointed out in relevant cases, reverse confusion actually constitutes unfair competition and destroys the goodwill and commercial survival space of the prior trademark owner. Contrary to public expectations, not all small and medium-sized enterprises that have built goodwill through honest management are willing to ride on the goodwill of large companies and form de facto binding relationships with them, because this will lose the brand value created by the small and medium-sized enterprises themselves, and will make them The product loses its independent identity and the ability to control its own goodwill and enter new markets. In fact, the trademark law protects trademark holders equally regardless of strength. Small and medium-sized enterprises will not lose the prior rights brought by earlier registration just because they are relatively weak. Nor can large enterprises lose their rights just because they are strong. Come from behind and take advantage of the weak.
Although the second instance did not support Jiangsu Satellite TV from the perspective of trademark rules, from the perspective of maximizing social welfare, the author believes that Jiangsu Satellite TV can resolve the dilemma of losing its golden brand in two ways. Bureau: First, register your own "If You Are the One" trademark and continue to use it. The specific method is to attach a distinctive mark, such as the Jiangsu Satellite TV logo or other personalized marks. Secondly, negotiate to transfer, license or even purchase the "If You Are the One" trademark. The Coase theorem in law and economics holds that as long as property rights are clear and transaction costs are low, an efficient result can be obtained through voluntary consultation and negotiation by the parties. For example, if the market value of the name or trademark "If You Are the One" to Jiangsu Satellite TV is 100 and the market value to Jin Ahuan is 10, then Jiangsu Satellite TV can negotiate to request Jin Ahuan to transfer it at a price of 15 or a market value of 15. For the price of 3, please ask Jin Ahuan for authorization to use it. Jiangsu Satellite TV can even grant it back to Jin Ahuan after obtaining the transfer of the trademark. It can be used within the agreed scope. Obviously, these can bring about a win-win situation. result.