What is reverse confusion? my country’s current laws only expressly provide for forward confusion. Compared with forward confusion, reverse confusion of trademarks is still blank in the current legislative status of our country, but in judicial practice But it appears from time to time. According to Article 57 of the Trademark Law, positive confusion in the traditional sense is also a common situation in judicial practice. It usually means that the earlier trademark is a widely known trademark and the registrant of the earlier trademark enjoys higher goodwill. , the trademark infringer uses a trademark that is similar to the significant part of the prior trademark in the same product category or subcategory without the permission of the trademark registrant, thus causing confusion and misunderstanding among consumers. Reverse confusion is just the opposite. It means that the trademark infringer has wide popularity and high goodwill, but uses the trademark of the prior right holder in the same product category or sub-category without the permission of the prior right holder. And through the use of the disputed trademark, it has a high reputation, causing consumers to confuse and mistakenly believe that the earlier trademark comes from the later powerful trademark user or mistakenly believe that the two are somehow related. In a nutshell, forward confusion is the trademark infringement of a small company free riding on a large company that already has a large share of the market; reverse confusion is just the opposite, when a large company registers a trademark that is already owned by a small company. The use of trademarks that are similar to the prior trademark confuses consumers into thinking that there is some connection between the two, thus severing the connection between the owner of the prior trademark and his trademark. It can be seen that in reverse confusion, the later user covers the market reputation of the earlier user, causing the small company that used the earlier one to lose the characteristics of the trademark it owns, thus making its trademark lose value and its trademark rights being infringed. The history of reverse confusion. The concept of reverse confusion can be traced back to Justice Holmes, who pointed out: "Usually in trademark infringement cases, the defendant imitates the plaintiff's products. On the contrary, consumers mistakenly believe that the plaintiff's products come from The defendant’s behavior is also guilty of the same crime. However, the latter situation is extremely subtle and the damage caused is also very hidden.” From this, Holmes believes that when dealing with trademark infringement cases, it is not only necessary to clarify the cause of confusion. Facts and the directionality of confusion are equally important and should also be regulated by law. Reverse confusion was first regulated in judicial practice in the 1977 Goodyear tire case in the United States. The plaintiff, Big O Tire Dealers, Inc., is a tire purchaser. In the autumn of 1973, the company began to produce tires and began to use and promote the "Big O Big Foot 60" and "Big O Big Foot 70" trademarks on its tire products. The defendant Goodyear Company is the largest tire manufacturer in the United States and the world. Goodyear began to use the "Bigfoot" trademark on snowmobile tracks in late 1973. Later, although Goodyear Company discovered the fact that the plaintiff had previously used the trademark , but without obtaining authorization from the plaintiff, it still actually used the trademark and made a lot of publicity. In this case, the court found that the defendant Goodyear Tire Company engaged in unfair competition through improper use of trademarks, causing relevant consumers to confuse and misunderstand the origin of the prior user’s goods. The court ultimately ruled that the defendant should bear corresponding infringement compensation and Punitive damages. Since the U.S. trademark system followed the first-to-use principle at that time, the U.S. courts had a theoretical basis for awarding damages against Goodyear Tires. The Goodyear Tires case was also the first time in the U.S. that the reverse confusion theory was used to protect the interests of vulnerable infringers, laying the foundation for Since then, case law has served as the basis for the trial of trademark reverse confusion cases. Legal Characteristics of Reverse Confusion Reverse confusion, as an imported product from the United States, is still blank in China’s legislative status quo, which is based on the previously registered trademark system. However, it occurs from time to time in judicial practice. Therefore, reverse confusion in the United States Theory and practice are of great research value and reference value. Now, the author combines the American reverse confusion theory with Chinese judicial practice cases to sort out the legal characteristics of reverse confusion, so that readers can have a clear target in their study and research on trademark infringement.

(1) The original and defendant’s trademarks are similar and the goods are similar. This is the same as conventional trademark infringement. According to Article 57 of the Trademark Law, “without the permission of the trademark registrant, using the same registered trademark on the same goods” "Trademark" and "Using a trademark similar to the registered trademark on the same product without the permission of the trademark registrant, or using a trademark identical or similar to the registered trademark on similar products, which is likely to cause confusion" are both infringements. The exclusive right to register a trademark, because this increases the possibility of confusion of the disputed trademark and can easily cause confusion and misunderstanding among relevant consumers. (2) The superiority of the trademark infringer’s market position. This is the most important point in determining reverse confusion. The essence of trademark rights protection can be divided into two points, one is to protect trademark logos, and the other is to protect commercial goodwill. Protecting trademark logos is easier to understand. Trademarks exchange for protection rights through use: patents naturally have value, but the value of trademarks can only be obtained through use. Without use, there is no value. The ultimate purpose of using a trademark is to protect business goodwill. The trademark becomes known to relevant consumers through use on the registered product category. From then on, the trademark is connected with the product and thus gains value - consumers will know the trademark when they see it. Thinking of the product, if the product is popular with consumers, the company will also accumulate a certain amount of goodwill, and the trademark will be used as a logo at this time to achieve the purpose of protecting the company's business goodwill. In reverse confusion, a large company promotes and uses the infringing trademark on a large scale. The defendant large company is better known to consumers due to its superior market position, which further separates the small business that previously registered the trademark from its trademark rights. connect. (3) The subjective intention of the trademark infringer is not obvious. In forward trademark confusion, trademark infringers usually have subjective malice. However, in reverse confusion cases, not all trademark infringers have strong malice. Therefore, malicious intent is not a sufficient or necessary condition to determine whether reverse confusion exists. For example, the famous "Blue Storm" case brought the concept of "reverse confusion" into the public eye. Its judgment reflects that when determining reverse confusion, Chinese law should focus on examining whether the status of the subjects is disparate and the possibility of confusion. , rather than leaning towards the subjective malice of the infringer. The plaintiff Lanye Winery registered the "Blue Storm" trademark in 2002, and the defendant Shanghai PepsiCo launched a Coke promotion campaign in China with the theme of "Blue Storm" in 2005 and widely used the logo "Blue Storm" and promotional slogans. Therefore, in December 2005, Lanye Wine Industry sued Shanghai PepsiCo to the court. In May 2007, the Zhejiang Higher People's Court made a second-instance judgment on the case, finding that Shanghai PepsiCo's use of "Blue Storm" without permission infringed on the plaintiff's trademark rights, and ordered PepsiCo to stop using "Blue Storm" and Compensate Lanye Winery for economic losses of 3 million yuan. In this case, the defendant PepsiCo claimed that "Blue Storm" is a descriptive language. As the theme of product promotion activities, it originated from Pepsi's independent creativity and has nothing to do with the plaintiff's "Blue Storm" trademark. Pepsi itself does not Knowing the "Blue Storm" trademark of Lanye Wine Industry, the defendant PepsiCo claimed that it had no malicious infringement or subjective fault. Despite this, the Zhejiang High Court still awarded compensation to Pepsi in the second instance. It can be seen that subjective malice is not the focus of the court's consideration when determining reverse confusion infringement of trademarks. Of course, in judicial practice, the court must also comprehensively consider all infringement facts according to different cases. (4) Reverse confusion infringement has caused damage to the prior trademark owner. Because reverse confusion infringement is an infringement, its constituent elements are consistent with those of infringement, and it is required to have damaging results. This point does not need to be elaborated. Taking the Evergrande Ice Spring case as an example, some people may think that Evergrande Ice Spring is well-known and its use of the "Hengda" trademark should drive the sales of Evergrande's high-tech products, but this is not the case. Generally speaking, sellers are very proficient in products. Regarding the supply of Evergrande High-tech, the possible situation is that the seller will recognize that although the product is also the "Hengda" trademark, it is obviously not produced by the Evergrande Group, and then raise questions. Is it possible that Evergrande High-tech has infringed upon the Evergrande trademark of Evergrande Group, causing trouble to Evergrande High-tech, causing its reputation to be tarnished and its sales performance to decline? In fact, Evergrande High-tech also proved that there was a phenomenon of breach of contract due to suspicion of trademark infringement of Evergrande High-tech. Therefore, the damage result is also one of the negative effects of reverse confusion infringement.