Revisiting the Issue of Regulatory Measures for Trademark Reverse Confusion

Abstract

In the pursuit of maximizing interests in commercial activities, a new form of trademark infringement known as “reverse confusion” has become increasingly prevalent. In contrast to the traditional concept of “forward confusion” in trademark law, “reverse confusion” involves a reversal of the confusion direction, changes in the relative strength of the parties involved in infringement, confusion in the cognitive association of consumers, blurred boundaries of trademark protection, and potentially more severe consequences. These distinct forms of infringement, different from “forward confusion,” pose challenges to traditional trademark confusion theories and legal frameworks. Since the emergence of “reverse confusion,” there have been numerous disputes regarding legal issues in this area both domestically and internationally. However, no country has explicitly legislated on this matter. In China, judicial practices often refer to the identification standards and relief systems of traditional confusion, lacking objective and unified judgment criteria. This undermines the specificity of reverse confusion, leading to issues such as inconsistent judgments in similar cases and imperfect damage compensation. This, to some extent, affects the credibility of judicial decisions. This article, based on the analysis of typical cases of reverse trademark confusion, legislative disputes, and issues related to legal application, reevaluates the theoretical foundations, elements of infringement, recognition standards, judicial remedies, penalties for “ambush marketing,” and registration review concerning the regulation of reverse trademark confusion. It aims to provide insights into supplementing and improving China’s trademark law from the perspectives of maintaining legal stability and enhancing traditional confusion theories.