Analysis of trademark reverse confusion
On december30,2019, Hangzhou intermediate people's court made a trial decision on trademark infringement litigation between the plaintiff Hangzhou Lian'an Security Engineering Co., Ltd. and the defendant Xiaomi company, and decided that Xiaomi communication company and Xiaomi technology company, due to the use of other people's registered trademark "Mi family", constituted trademark infringement, and the other party should be compensated for RMB 12 million. So far, "reverse confusion" has attracted widespread attention of the society again.
What is reverse confusion
Before discussing the reverse confusion of trademarks, let's first look at what is the positive confusion of trademarks. The positive confusion is what we usually call trademark confusion, that is, the later trademark user infringes the trademark registered or used earlier, so that consumers mistake the later trademark user's products for the former trademark user. Positive confusion concerns whether the later trademark and the earlier trademark will be confused.
The reverse confusion of trademarks is the opposite. That is, the trademark used in the later period has a high popularity, and the popularity is obviously higher than the trademark registered or used before, so that the consumer mistakenly believes that the trademark used in the latter is owned by the prior obligee or the two have a specific legal relationship. The focus of the reverse confusion is whether the prior trademark and the later trademark will be confused.
In addition to the reverse confusion caused by the use of trademarks, trademark users also cause reverse confusion through trade names, trade names and other ways. The following is about the elements of reverse confusion.
Elements of reverse confusion
The Trademark Law of our country does not have a clear provision for reverse confusion, nor does it list the constituent elements of reverse confusion. In judicial practice, it brings a certain degree of difficulty for the judge in the adjudication of specific cases. The judge mainly makes judgment based on the specific circumstances of the case and the differences of the cases, so there are many subjective factors in the judgment.
For the elements of reverse confusion, Haijun thought that the following points could be considered to judge the elements in combination with the existing practical cases: ① Originality of trademark (where novelty is not imitated); ② Approximation (whether there is confusion point); ③ The degree of similarity of the product (e.g. Oreo and oreyue); ④ Whether the prior obligee and the trademark user are the business operators; ⑤ Whether there is a commercial relationship; ⑥ Whether the confusion has been caused in practice.
If the trademark registered or used in the first place is more original and more recognizable, and the trademark used later is similar to it to a certain extent, and the goods or services used by the two are only related, even if they are not similar, we think it is more likely to constitute actual reverse confusion. If the degree of similarity is low, the goods or services they use are similar, and it is very easy to form reverse confusion in practice. We use the following classic case "Blue Storm" to further analyze the reverse confusion.
Review of "Blue Storm"
"Blue Storm case": in 2005, Pepsi Cola planned a theme activity called "Blue Storm". It not only used "Blue Storm" in the packaging and bottle caps of its beverage products, but also used "Blue Storm" in a large number of various forms of advertising. In a short period of time, it was widely known by the majority of consumers, And associate "Blue Storm" with Pepsi Cola.
But in fact, Zhejiang Lanye Liquor Co., Ltd. has obtained the registration of "Blue Storm" character, Pinyin and graphic combination trademark as early as December 2003, with 32 categories. The approved products are malt beer, water (beverage), coke, etc., and the trademark is also used in actual business activities.
On May 24, 2007, Zhejiang high court made the final judgment of the second instance: Shanghai Pepsi Cola Beverage Co., Ltd. immediately stopped the production, sales, advertising and publicity of products with the "Blue Storm" trademark, and issued a statement in the media to eliminate the impact and compensate Zhejiang Lanye Liquor Co., Ltd. for the economic loss of 3 million yuan; Hangzhou Lianhua Huashang Group Co., Ltd. stopped selling the infringing products of "Blue Storm" trademark.
In this case, "Blue Storm" was used and publicized by Pepsi Cola company, and formed a directional relationship, resulting in the result that the public thought that "Blue Storm" was all the logo of Pepsi Cola company, which restrained the commercial interests and brand development of Zhejiang Lanye liquor industry, and infringed the trademark rights of Lanye liquor industry.
As an important intangible asset of an enterprise, intellectual property is an important competitive core. Lanye liquor, as a small and medium-sized enterprise, when facing the trademark infringement of Pepsi Cola, a giant multinational enterprise, sued it in court and won the lawsuit, which is one of the typical cases of "ants shake the tree".
Message from Haijun
With the occupation of large enterprises, especially multinational companies, in China's domestic market, the survival and development space of small and medium-sized enterprises has been squeezed. Many enterprises have to face the situation that they can't continue to operate normally. They often have no time to consider or fear the infringement of intellectual property rights, such as trademarks, to claim their rights and interests to tough opponents. In the face of such infringement, if small and medium-sized enterprises do not protect their rights independently, they will inevitably face a series of negative effects, such as "desalination" of their own brands, infringement of intellectual property rights, infringement of commercial interests, and even damage to their commercial reputation, and the protection of their rights will inevitably consume the costs of human resources, financial resources, time and so on, And the elimination of the negative impact will inevitably require higher costs, which is bound to aggravate the development of small and medium-sized enterprises under special circumstances at this stage, and is not conducive to the stable, good and orderly development of market operation order.
Haijun reminds the enterprises that have not experienced this kind of situation: in the current market competition, intellectual property is a major battlefield, good brands form the propaganda role of word of mouth to help enterprises compete, and enterprises must manage their own brands well if they want to develop and grow. Haijun has its own professional intellectual property team. We do a good job in brand planning and layout, brand promotion and publicity for the enterprise, establish our own brand culture and build our own brand effect, so that the enterprise can occupy a place in the increasingly fierce market competition.