The Study of Reverse Confusion in Trademark Law
|關鍵字:||反向混淆;正向混淆;混淆誤認之虞;商標侵權;Reverse confusion;Forward confusion;Likelihood of confusion;Trademark Infringement|
Reverse confusion is classified as a type of “likelihood of confusion” which arose out of the traditional concept of forward confusion. In contrast to forward confusion, reverse confusion is a complete opposite concept. While forward confusion occurs when customers mistakenly think that the junior user's goods or services are from the same source as or are connected with the senior user's goods or services; in reverse confusion situation, rather than trying to profit from the senior user's mark, the junior user has no intention of taking a free ride on the good will and reputation of the small, local user. In the end, the junior user saturates the market and “overwhelms the senior user, and the costumers would purchase the goods that of the senior user’s while under the mistaken impression that the goods are of the junior user’s. Since the establishment of the case, “Big O” in 1976 by the 10th Circuit, a series of cases gradually shaped its theoretical implications. The likelihood of confusion tests for forward confusion cannot be equally applied to reverse confusion. In addition, in reverse confusion, the interests of trademark owners, junior users, and consumers are often in tension. Due to balancing their interests in the case, remedies should also be based on equity among the three, in order to protect trademark owner, and also to maximize the result of the use of the trademark value. In recent years, the emerging of reverse confusion cases in Taiwan, “reverse confusion” was initially considered, to the recent Adidas v. Jump case, the denial of the Supreme Administrative Court. However, afterwards, The Smart Net case seemingly recognize the substance of reverse confusion. Even though there is not much trademark infringement litigations but by observing "CK" case, the Intellectual Property Court considered that “likelihood of confusion” language of our Trademark Act is broad enough to encompass reverse confusion. This thesis uses sources from USA to construct the backbone of reverse confusion theory and to investigate and discuss the correction factors applicable and equitable remedies. This could also contribute to reviewing of our current trademark practice and further aiding the local "reverse confusion" cases with a better response and suggestions.
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