关键词: 反向混淆, 侵犯商标权, 不正当竞争

Abstract: The reverse confusion behavior originated from the case law of the United States, which was considered as an infringement of trademark rights due to its impact on the function of trademark source identification in early cases. Chinese courts have also drawn on this legal regulatory path. By reviewing the precedents of reverse confusion in the United States, it can be found that due to the fact that the Langham Act not only regulates trademark infringement but also prevents unfair competition, both regulatory demands can be raised simultaneously. Therefore, whether “reverse confusion” is a concept under the trademark rights system or the anti unfair competition system deserves further investigation. Due to the fact that China’s trademark law system is based on preventing confusion, the core is to protect the goodwill accumulated by prior trademarks. However, reverse confusion does not utilize the goodwill of prior trademarks, but only hinders their function to identify the sources. In this situation, it is difficult to form a logical loop to consider reverse confusion as trademark infringement. In fact, the interests infringed by reverse confusion should be regulated by the Anti Unfair Competition Law. Through the principle of proportionality, it can be determined that the interests of the plaintiff infringed by reverse confusion need to be protected. At the same time, reverse confusion also has a certain commercial obstruction effect, which may constitute unfair competition in this situation. Reverse confusion, judged according to the criteria of unclassified unfair competition, constitutes unfair competition.

Key words: reverse confusion, infringement of trademark rights, unfair competition